Kaja Hussain vs The United India Insurance Co. Ltd
2021 Latest Caselaw 9820 Ker

M.A.C.A.No.2857/2017              1

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

             THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

    WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943

                       MACA.No.2857 OF 2017(D)

  AGAINST THE AWARD IN OPMV 675/2010 DATED 25-11-2016 OF MOTOR
               ACCIDENT CLAIMS TRIBUNAL, PALAKKAD


APPELLANT/S:

                KAJA HUSSAIN,
                AGED 28 YEARS, S/O SHAHUL HAMEED,
                RAHMATH MANZIL, KALLEPULLY, PALAKKAD.

                BY ADV. SRI.JACOB SEBASTIAN

RESPONDENT/S:

                THE UNITED INDIA INSURANCE CO. LTD.,
                DIVISIONAL OFFICE, 11/82, IIIRD FLOOR,
                MALABAR FORT, OFF GB ROAD, PALAKKAD. PIN 678 001.

                R1 BY SRI.P.K.MANOJKUMAR,SC,UNITED INDIA
                INSURANCE COMPANY


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
     ON 24.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
     FOLLOWING:
 M.A.C.A.No.2857/2017            2



                           JUDGMENT

Dated this the 24th day of March, 2021

This is an appeal filed by the petitioner in O.P.

(MV).No.675 of 2010 on the file of the Motor Accidents Claims

Tribunal, Palakkad. Claim petition was filed by the appellant

seeking compensation for the injuries sustained to him in a

motor accident occurred on 04.06.2009. According to the

appellant, he was aged 21 years at the time of accident. He

was working in a biscuit factory and was engaged in packing.

Monthly income claimed by him was Rs.4,000/-. It was

contended that, on account of the injuries, he sustained very

serious permanent disability and the Medical Board certified a

permanent neurological disability as 96.4%. Total amount of

compensation claimed by the appellant was Rs.7,00,000/-.

2. The Insurance Company alone contested the case.

They filed written statement admitting the coverage of policy

in respect of the vehicle involved, but they disputed the

liability on various grounds. The quantum of compensation

was also seriously disputed. Evidence in this case consists of

Exts.A1 to A10 from the side of the appellants. No evidence

was adduced from the side of the respondents. However, the

Medical certificate issued by the Medical Board was marked

as Ext.X1. On the basis of the above records, the Tribunal

passed an award, allowing a total compensation of

Rs.6,62,200/- and the respondent Insurance Company was

directed to deposit the said amount along with interest at the

rate of 9% per annum. Being dissatisfied with the quantum of

compensation, this appeal is filed.

3. Heard the learned counsel for the appellant and the

learned counsel for the respondent Insurance Company. The

learned counsel for the appellant contended that the amount

awarded by the Tribunal is on lower side, particularly the

amount under the head of disability was fixed without

considering the actual physical disability sustained to the

appellant. It was contended that, even though the Medical

Board certified his percentage of permanent neurological

disability as 96.4%, the Tribunal had taken only 40% disability

for the purpose of computing compensation. It was further

contended by the learned counsel for the appellant that,

taking into consideration of the fact that the appellant was

involved in an employment, which requires physical activities,

neurological disability caused by the accident will seriously

affect his earning capacity. Therefore, he contended that the

functional disability has to be taken as 100% for the purpose

of computing compensation. While considering the said issue,

the observations made by the Tribunal in paragraph No.10 of

the award are relevant. It is observed by the Tribunal that,

the appellant was physically brought to the court for

assessment and it was noticed that he was on a wheel chair

and he was not in a position even to speak. It was further

observed that he requires assistance for all matters. Taking

into account the above aspect, this Court is of the view that

there is force in the contention put forward by the learned

counsel with regard to the percentage of disability taken by

the Tribunal. Obviously, the disability sustained by him will

have very serious impact on his earning capacity. It is

submitted that he was being engaged for packing biscuits in a

factory. It is evident from observations of the Tribunal and

also by the contents of Ext.X1 Medical certificate that he is

deprived of carrying out the above said employment and also

any other avocation, where physical activities are involved.

Therefore, under no circumstances, 40% physical disability

taken by the Tribunal can be justified. Considering the entire

facts and circumstances of the case and also in the absence of

any relevant materials on record to assess the functional

disability of the appellant with any arithmetical precision,

some guess work in this regard has to be made. From the

nature of the physical disablement and also the nature of

employment the appellant was engaged in at the time of

accident, this Court is of the view that fixing the functional

disability at the rate of 80% would be ideal and it is fixed as

such.

4. Another shortcoming noticed in the award is that,

despite the fact that the appellant sustained very serious

physical disablement, no addition is seen made towards future

prospectus. It is evident that he was aged only 21 years only

at the time of accident. Considering all the above aspects and

also following the principles laid down by the Hon'ble

Supreme Court in various judgments in this regard, 40% can

be added towards future prospectus for the purpose of

computing the compensation for disability. Thus the monthly

income for the purpose of assessment shall be Rs.5,600/-

(4000+40% of 4000). Accordingly, the total compensation

under this head would come to Rs.9,67,680/- [5600 x 12 x 18 x

80/100]. The amount already awarded by the Tribunal under

the head of permanent disability is Rs.3,45,600/-. After

deducting the said amount, the appellant is found entitled for

a further sum of Rs.6,22,080/-. It was also pointed out by the

learned counsel for the appellant that, the amount awarded

under the head of loss of earning was just Rs.20,000/-, which

was calculated at the rate of Rs.4,000/- for a period of four

months. Considering the fact that the appellant sustained

very serious injuries, the period to be taken into account for

the purpose of loss of earning can be increased to six months.

Thus he will be entitled for a further sum of Rs.8,000/- under

this head.

5. The amount awarded towards pain and suffering is

Rs.50,000/-. It was pointed out by the learned counsel for the

appellant that the nature of injuries were very serious and he

has undergone treatment as inpatient for a period of 143 days.

Considering the nature of injuries, days of inpatient treatment

and also the consequential permanent disablement, some

enhancement has to be granted under the head of pain and

suffering. Taken into account the fact that the accident

occurred in the year 2009, this Court feels that a further

amount of Rs.25,000/- can be granted under the said head.

6. Next contention put forward by the learned counsel

for the appellant is that the amount awarded under the head

of loss of amenities and enjoyment in life is Rs.50,000/- only.

He asserted that the victim was aged only 21 years and his

entire prospects in life is lost due to the injuries sustained.

Loss of marriage prospects is also a relevant factor to be

considered in this regard. Taking note of the above aspects,

this Court is of the view that a further sum of Rs.1,00,000/-

can be granted under the head of loss of amenities and

enjoyment in life, this is particularly in view of the fact that,

he was aged just 21 at the time of accident and has to be live

a long life with these disabilities. The learned counsel further

pointed out that the expenses towards bystander awarded by

the Tribunal is on lower side and he also seeks some amount

towards future attendant expenses, taking note of the physical

condition of the appellant. Considering the fact that the

appellant is unable to speak and also not in a position to

pursue his daily pursuits without the assistance of another

person, some amount has to be granted under this head. In

the facts and circumstance of the case, this Court is of the

view that a further sum of Rs.20,000/- can be granted under

this head. The total amount of compensation is Rs.7,75,080/-

(6,22,080 + 1,00,000 + 25,000 + 20,000 + 8000).

In the above circumstance, the appellant is entitled for a

further sum of Rs.7,75,080/- and the respondent Insurance

Company shall deposit the said amount along with interest

and proportionate cost at the rates as ordered by the Tribunal

within a period of three months.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE DG