Kerala High Court
Shahul Hammed vs United India Insurance Co. Ltd on 12 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
MACA NO. 925 OF 2014
ARISING OUT OF THE AWARD DATED 27.03.2008 IN OPMV NO.7 OF
2003 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR
APPELLANT:
SHAHUL HAMMED
AGED 55 YEARS
S/O. SULTHAN RAVUTHAR, KANJIRAPARAMBIL HOUSE,
GCDA COLONY, PARAVOOTHARA.
BY ADV SRI.A.N.SANTHOSH
RESPONDENT:
UNITED INDIA INSURANCE CO. LTD
PARAVUR BRANCH-683512.
BY ADVS.
SMT.S.JAYASREE, SC
JOHN JOSEPH VETTIKKAD
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 12.04.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
M.A.C.A.No.925/2014 2
JUDGMENT
Dated this the 12th day of April, 2024
Aggrieved by the quantum of compensation awarded in
O.P.(M.V.) No.7 of 2003 filed before the Motor Accident Claims
Tribunal (hereinafter referred to as the 'Tribunal'), North
Paravur, this appeal is filed by the appellant who was the
claimant therein.
2. Facts in Brief:
On 07.09.2002, the appellant while riding his motor cycle
bearing registration No.KL-7/AB-5300 from south to north and
when he reached near Ezhikkara Panchayath Office, a
tempotrax bearing registration No.KL-7/AD-3562, driven
negligently came from the opposite direction and hit against his
motor cycle. The appellant suffered various injuries including
fracture of both bones of his right leg, type III A open fracture,
fracture of patella right and right leg wound extending from
proximal 5th to distal 3rd exposing tibia and serious
contamination. He had to undergo treatment as inpatient for
about 84 days in two hospitals viz., Specialists Hospital,
Ernakulam and KMK Hospital, North Pravur. Appellant filed the
above OP (MV) arraying the owner, driver and the insurer as
respondents 1 to 3 respectively. Respondents 1 & 2 jointly
contested the application and contended that there was no
negligence on the part of the 2nd respondent driver as alleged.
The 3rd respondent insurer admitted the policy, but disputed the
amount claimed under various heads.
3. The Tribunal framed three issues and parties went to
trial. Neither side examined any witnesses. Appellant produced
Exts.A1 to A15. Respondents did not produce any documents in
evidence.
4. An Award for Rs.3,91,650/- with interest @ 7% per
annum from the date of the petition upto the date of payment
with proportionate cost to the appellant from the 3 rd respondent
was rendered by the Tribunal. The above MACA is filed by the
appellant challenging the said Award.
5. Heard the learned counsel appearing for the
appellant and the learned counsel appearing for the respondent
insurance company.
6. Appellant's contentions are as follows:
# The monthly income fixed by the Tribunal is too low
and it ought to have been fixed at Rs.6,000/-.
# The Tribunal failed to note the functional disability of
the appellant was more than 25% and the amount
awarded for permanent disability is too low.
# The Tribunal erred in fixing the multiplier and
multiplicand.
# The compensation awarded by the Tribunal for 'Pain &
Suffering' and 'Loss of Amenities' is highly inadequate.
7. Per contra the learned counsel appearing for the
insurance company submits that just and reasonable amounts
have been awarded by the Tribunal in the facts and
circumstances of the case and since the Award does not merit
any interference, the MACA may be dismissed.
8. I have considered the contentions raised by the
respective counsel and have perused the Award and pleadings.
9. The Tribunal has, based on the evidence produced,
concluded that the accident happened due to the rash and
negligent driving of the Tempo Trax vehicle insured with the
respondent. The extensive nature of the injuries suffered by
the appellant and the 25% disability mentioned in the Disability
Certificate have been noted by the Tribunal. Though the
appellant has contended that functional disability was more
than 25%, there is no material to substantiate the same.
Hence the reliance placed by the tribunal on the Ext. A4
disability certificate is found valid and proper.
10. For computation of loss of earnings, the Tribunal had
computed the monthly income as Rs.2,000/- basing on Ext. A4
and applying a multiplier of 15, thus fixing the compensation
for permanent disablement and loss of earning power at
Rs.90,000/-. The principal attack of the counsel for the
appellant is with respect to the said amount of Rs.2,000/- fixed
by the Tribunal as monthly wages. He would contend that
taking note of the fact that the accident had occurred in the
year 2002, and also the future prospects, the Tribunal ought to
have fixed the income of the appellant at Rs.6,000/-. No
material to substantiate the said claim for Rs.6,000/- is seen
produced. It is fair and reasonable that the monthly income is
recomputed and fixed at Rs.3,500/-. Taking due note of the
dictum laid down by the Hon'ble Supreme Court in Sarla
Verma and Ors. v. Delhi Transport Corporation & Anr.
[2010 (2) KLT 802 (SC)] and subsequently in National
Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT
662 (SC)] and in view of the fact that the appellant was aged
45 years during the relevant time, retaining the multiplier at 15
as taken by the Tribunal, the compensation towards Permanent
Disablement and Loss of Earning Power is computed as
Rs.1,57,500/- (3,500x12x15x25/100=1,57,500/-). Based on
the same figure of Rs.3,500/- as monthly income, the loss of
earnings for 9 months is recomputed at
Rs.3,500x9=Rs.31,500/- instead of Rs.18,000/- awarded by
the Tribunal. Taking note of the nature of injuries suffered by
the appellant, which have been noted by the Tribunal as of
extensive nature, it is just and reasonable that the amount of
Rs.25,000/- awarded by the Tribunal under the head of Pain
and suffering is enhanced to Rs.40,000/- ie., an enhancement
of Rs.15,000/- The compensation for loss of amenities allowed
by the Tribunal is Rs.15,000/- is accordingly enhanced by
Rs.10,000/- to Rs.25,000/-. I do not find any other ground
existing to interfere with the amount of compensation awarded
by the Tribunal under the other heads.
11. Pursuant to the above enhancements made, the
amount of compensation under the different heads in the
Award stand altered as per the table below:
Sl.No. Head of Claim Amount awarded Amount modified
by the Tribunal and recalculated
(Rs.) by this Court (Rs.)
1 Loss of earning 18,000/- 31,500/-
2 Transportation charges 1,000/- 1,000/-
3 Extra nourishment charges 4,000/- 4,000/-
4 Damage to clothing 250/- 250/-
5 Medical expenditure 2,30,000/- 2,30,000/-
6 Nursing & bystander's 8,400/- 8,400/-
expenses
7 Pain & suffering 25,000/- 40,000/-
8 Loss of amenitites 15,000/- 25,000/-
9 Permanent disablement and 90,000/- 1,57,500/-
loss of earning power
Total 3,91,650/- 4,97,650/-
The Award of the Tribunal is modified to the above extent
entitling the appellant to a total amount to Rs.4,97,650/- under
the respective heads as tabulated above. Thus the total
enhancement allowed in the MACA is Rs.1,06,000/-. Needless
to add, the amounts already awarded by the Tribunal under
each of these heads will be deducted from the above
enhancements. Appellant will be entitled to interest @ 7% per
annum from the date of OP(MV) on the enhanced amount.
However, the appellant will be dis-entitled for the interest for
the period of 1305 days which constitutes the delay in filing the
MACA which was condoned by this Court subject to the said
condition vide Order dtd.23.12.2021 in C.M.Appln.No.1/2014
(CMPA 1101/2014) in the above OP (MV).
MACA stands disposed as above.
Sd/-
SYAM KUMAR.V.M.
JUDGE
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