National Insurance Co Ltd vs Mymoom
2021 Latest Caselaw 23665 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR. JUSTICE T.R.RAVI
 TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943
                      MACA NO. 2440 OF 2013
  AGAINST THE AWARD IN OPMV 2232/2004 OF MOTOR ACCIDENT CLAIMS
                       TRIBUNAL ,TRIVANDRUM
APPELLANT/2ND RESPONDENT IN THE OP:
          NATIONAL INSURANCE CO. LTD.,
          THIRUVANANTHAPURAM, REPRESENTED BY THE MANAGER,
          NATIONAL INSURANCE COMPANY LIMITED,
          KOCHI REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING,
          PADMA JUNCTION, M.G. ROAD, KOCHI -35.
          BY ADV SRI.A.R.GEORGE

RESPONDENTS/CLAIMANT:
      1      MYMOOM
             W/O. MUHAMMED HASHIM, T.C. 22/536(1)SUMI NIVAS,
             NANDAR VILAKOM PURAYIDOM, MANACAUD P.O.,
             THIRUVANANTHAPURAM - 696 009. (DIED)
              ADDL.RESPONDENTS 2 TO 4 ARE IMPLEADED
  ADDL.R2.    HASHEER.H, S/O MOHAMMED HASHIM, TC 22/536, SMN 67,
              CHIRAMUKKU, MANACAUD POST, THIRUVANANTHAPURAM.


  ADDL.R3.    HASEEN HASHIM,S/O MOHAMMED HASHIM, TC 22/536, SMN
              67, CHIRAMUKKU, MANACAUD POST, THIRUVANANTHAPURAM.
  ADDL.R4.    SUMI MOL.M., W/O NIZAR S., TC 46/206(2),
              PARUTHIKUZHY, THIRUVANANTHAPURAM, POONTHURA.

               ADDL.RESPONDENTS 2 TO 4 IN THIS APPEAL, WHO ARE
              LEGAL REPRESENTATIVES OF DECEASED ORIGINAL
              RESPONDENT IN THIS APPEAL, ARE IMPLEADED AS PER
              ORDER DT.26.8.2021 IN IA.1/2021 IN MACA 2440/2013
          BY ADVS.SRI.BENOJ C AUGUSTIN
          SMT.J.KASTHURI
          SRI.NAGARAJ NARAYANAN
          SRI.N.NARAYANAN NAIR
          SRI.PRATHAP PILLAI
          SRI.SAIJO HASSAN
          SRI.SEBIN THOMAS
          SRI.VIVEK V. KANNANKERI
   THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 05.10.2021, THE COURT ON 30.11.2021 DELIVERED THE FOLLOWING:
 M.A.C.A. No.2440 of 2013
                                   2




                             T.R. RAVI, J.
              --------------------------------------------
                      M.A.C.A. No.2440 of 2013
               --------------------------------------------
              Dated this the 30th day of November, 2021

                              JUDGMENT

The appeal is filed by the Insurance Company who was the 2 nd

respondent in OP(MV)No.2232/2004 before the Motor Accident Claims

Tribunal, Thiruvananthapuram. The claim was preferred by the

deceased 1st respondent, who on 07.06.2004, while standing on the

side of the road was knocked down by a motor cycle driven in a rash

and negligent manner causing grievous injuries. Due to the impact of

the injury, the deceased claimant was in an unconscious condition,

not even being able to recognise her husband and son. She was on

nasal feeding and required two medical attendants. The right side of

the deceased was in a hemiplegic condition. At the time when the

claim was preferred, she could not move both upper and lower limbs

and she was being placed in a Hi-tech bed with all special provisions

to help her condition. In the claim petition filed, the Tribunal

awarded a sum of Rs.13,78,640/-. The Insurance Company has filed

this appeal challenging the quantum. Pending the appeal, the

original claimant died on 01.09.2015 and her legal representatives

were impleaded as additional respondents 2 to 4. M.A.C.A. No.2440 of 2013

2. Heard the learned counsel for the appellant and the

learned counsel for the respondents.

3. The main contention of the appellant is that the Tribunal

has awarded a sum of Rs.4,76,250/- towards charges for bystander,

which is totally unwarranted. It is also submitted that the amount of

Rs.1 lakh awarded towards compensation for pain and suffering is on

the higher side. The counsel for the respondents submits that what

is awarded can never be said to be on the higher side, particularly

having regard to the judgment in Kajal V. Jagdish Chand reported

in [2020 (1) KLT 743], wherein the Hon'ble Supreme Court has

held that in cases where the victim of an accident is in a condition

requiring permanent help from bystanders, the bystander expenses

has to be calculated under the multiplier method. Thus the bystander

expense would have to be calculated from the year 2004 till the

original claimant died on 01.09.2015, following the multiplier method.

If a nominal sum of Rs.4,500/- is taken as the expenses that would

require towards bystander's help per month, a sum of Rs.5,94,000/-

would have to be allowed towards bystander expenses for the period

of 11 years when the deceased was lying in a hemiplegic condition.

Even though an attempt was made by the counsel for the appellant to

submit that the disability assessed was only 12%, on the facts of this

case, compensation cannot be calculated on the basis of 12% M.A.C.A. No.2440 of 2013

permanent disability, but has to be treated as a case of 100%

disability. I am hence of the opinion that the amounts awarded by

the Tribunal towards bystander's expenses cannot be treated as

excessive in any manner. So also, having regard to the nature of the

injuries and the condition of the original claimant, a sum of Rs.1 lakh

awarded towards pain and suffering is also not on the higher side.

No grounds have been made in the appeal warranting

interference with the award and the appeal is dismissed. The

appellant shall deposit the balance amount payable to respondents 2

to 4 herein within two months from the date of receipt of a copy of

this judgment.

Sd/-

T.R. RAVI JUDGE

dsn