Kerala High Court
New India Assurance Company Ltd vs Mohamed Shan on 4 August, 2025
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MACA Nos.2949 & 3801 of 2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 4TH DAY OF AUGUST 2025 / 13TH SRAVANA, 1947
MACA NO. 2949 OF 2018
OPMV NO.1187 OF 2013 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
PATHANAMTHITTA
APPELLANT/PETITIONER:
MUHAMMED SHAN
AGED 21 YEARS
S/O SHAMSUDEEN, THOPPIL HOUSE, PALLISSERIKKAL,
SASTHAMCOTTA
BY ADV SHRI.A.N.SANTHOSH
RESPONDENT/3RD RESPONDENT:
THE BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LTD.,
KUNNITHOTTATHIL TOWERS, ST. PETERS JUNCTION, RING ROAD,
PATHANAMTHITTA-689645
BY ADVS.
SRI.MATHEWS JACOB (SR.)
SHRI.P.JACOB MATHEW
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 23.07.2025 ALONG WITH MACA.3801/2018, THE COURT ON 04.08.2025
DELIVERED THE FOLLOWING:
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MACA Nos.2949 & 3801 of 2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 4TH DAY OF AUGUST 2025 / 13TH SRAVANA, 1947
MACA NO. 3801 OF 2018
OPMV NO.1187 OF 2013 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
PATHANAMTHITTA
APPELLANT/2ND RESPONDENT:
NEW INDIA ASSURANCE COMPANY LTD., KUNNITHOTTATHIL
TOWERS, ST. PETERS JUNCTION, RING ROAD, PATHANAMTHITTA
REP BY ITS MANAGER, REGIONAL OFFICE, KOCHI - 682 011.
BY ADVS.
SRI.MATHEWS JACOB (SR.)
SHRI.P.JACOB MATHEW
RESPONDENTS/PETITIONER, RESPONDENTS 1 & 2:
1 MOHAMED SHAN, AGED 26 YEARS
S/O. SHAMSUDEEN, THOPPIL, PALLISSERIKAL, SASTHAMKOTA,
PIN - 690520.
2 NAWAS, S/O. SULAIMAN KUNJU, POKKATTUVADAKKETHIL,
EDAVANSSERIL, MYNAGAPPALLY POST, KOLLAM, PIN - 691001.
3 ASUMABEEVI,
W/O. JAMALUDEEN KUNJU, MUTTATHU KIZHAKKETHIL,
EDAVASSERIL, MYNAGAPPALLY POST, KOLLAM, PIN - 691 001.
BY ADV SHRI.A.N.SANTHOSH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 23.07.2025, ALONG WITH MACA.2949/2018, THE COURT ON 04.08.2025
DELIVERED THE FOLLOWING:
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MACA Nos.2949 & 3801 of 2018
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JUDGMENT
These appeals arose from the impugned award dated
19.06.2018 in OP(MV) No.1187 of 2013 on the files of the Additional
Motor Accidents Claims Tribunal, Pathanamthitta. MACA No. 3801 of
2018 is filed by the third respondent insurer disputing the alleged
accident and the quantum of compensation awarded by the tribunal,
whereas MACA No.2949 of 2018 is filed by the claimant dissatisfied
with the quantum of compensation awarded by the tribunal.
2. Since the parties and the cause of action are the same,
the appeals are heard together and are being disposed of by this
judgment. For brevity, the parties are referred to as they are arrayed
before the tribunal.
3. The case of the claimant was that on 14.04.2013, while
he was riding a bicycle, a motorcycle bearing Reg.No.KL/61-6568 ridden
by the first respondent in a rash and negligent manner hit the bicycle,
whereby he sustained serious injuries. He approached the tribunal
claiming a total compensation of ₹20,22,000/-.
4. Respondents 1 & 2, who are the rider & owner of the
offending vehicle respectively, did not file any written statement before
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the tribunal. The third respondent insurer filed a written statement,
admitting the policy coverage for the offending vehicle, but disputing
the occurrence of accident, liability and the quantum of compensation
claimed. Before the tribunal, Exts.A1 to A20 were marked on the side of
the claimant. Ext.B1 was marked on the side of the insurer. RW1 & RW2
were examined. The tribunal, after analysing the pleadings and
materials on record, held that the accident took place on account of the
negligence of the rider of the offending vehicle and awarded a sum of
₹10,05,626/- as compensation under different heads with interest @ 9%
per annum from the date of petition till realization, against the third
respondent being the insurer. Challenging the impugned award, the
claimant as well as the insurer has come up in appeal.
5. I have heard the learned Standing Counsel for the
insurer and the learned counsel for the claimant.
6. The learned Standing Counsel for the insurer
submitted that the accident was not by the hitting of bicycle on the
motorcycle insured with the insurer, but the motorcycle hit on an
electric post as stated by the mother of the claimant. It is further
submitted that the insurer had filed a list of witnesses to prove that the
accident narrated by the claimant is false, however, the tribunal did not
afford sufficient opportunity to the insurer to adduce evidence and
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closed evidence in a hasty manner. The learned Standing Counsel
pointed out that RW1/doctor, who treated the claimant, deposed that
the claimant came with a history of hitting a bicycle on an electric post.
Further, it was argued that though the accident occurred on
14.04.2013, the FIR was registered only on 23.11.2013, i.e., seven
months after the accident, on the basis of a private complaint filed
before the Judicial First Class Magistrate Court, Adoor. The learned
Standing Counsel relied on Ext.A15 to prove the cause of the accident,
wherein it is stated, "Alleged h/o RTA (bike hit on post) on 14.4.2013 as
narrated by the patient's mother". It is also the case of the insurer that
the quantum of compensation awarded by the tribunal is excessive.
7. Per contra, the learned counsel for the claimant
submitted that sufficient opportunity was granted to the insurer to
adduce evidence. It is pointed out that in Ext.A3 Accident Register-cum-
Wound Certificate dated 14.04.2013 issued from Sankar
Shashtyabdapoorthi Memorial Hospital, Kollam, the alleged cause of
injuries is shown as, "സ ക ളൽ ഞര കമ ൾ സ ക ടച വണ." According to the
learned counsel, in all other documents except Ext.A3, the incident is
stated as a road traffic accident. The learned counsel also drew the
attention of this Court to the proceedings sheet of the tribunal,
and submitted that sufficient opportunity had been granted to the
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insurer to adduce evidence and in spite of affording sufficient
opportunity, the insurer examined only RW1 and RW2, the doctors who
treated the claimant. It is further submitted that the charge sheet was
also drawn against the rider of the motorcycle, which was not
challenged by the insurer, wherein the accident is proved. It is further
submitted that in the written statement filed by the insurer, they had
admitted that the accident occurred due to the hit of the bicycle against
the motorcycle bearing Reg.No.KL/61-6568, wherein they pleaded
negligence on the part of the bicyclist, not the rider of the motorcycle.
According to the learned counsel for the claimant, the tribunal has
rightly found that the accident was due to the rash and negligent riding
of the motorcyclist and awarded compensation. The learned counsel for
the claimant also sought enhancement of compensation awarded by the
tribunal.
8. I have considered the rival contentions raised on both
sides. According to the insurer, the accident was not as narrated by the
claimant, but was a hit of the motorcycle on an electric post. In Ext.A3
Accident Register-cum-Wound Certificate dated 14.04.2013, the history
and the cause of injuries is stated as, while the claimant was riding the
bicycle, he fell down hitting the motorcycle. A charge sheet was also
drawn against the rider of the motorcycle for rash and negligent riding.
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It is true that there was a delay of almost seven months in registering a
case against the rider of the motorcycle. But, admittedly, the
registration of the case was pursuant to a private complaint before the
Judicial First Class Magistrate Court, Adoor. The insurer is now
challenging the alleged accident solely relying on Ext.A15 case record
issued from the Dental College, Thiruvananthapuram, wherein it is
noted as, "Alleged h/o RTA (bike hit on post) on 14.4.2013 as narrated
by the patient's mother". Ext.A15 is dated 18.06.2013, i.e., after two
months of the alleged accident. However, in Ext.A3 Accident Register-
cum-Wound Certificate dated 14.04.2013, i.e., the date on which the
accident occurred, the history and alleged cause of injuries is stated as
the bicycle hit against the motorcycle. As regards the case of the insurer
that sufficient opportunity was not afforded to them to adduce evidence
though a witness list was filed, it is worth to extract the relevant portion
of the B diary of the tribunal as follows:
27.10.2017 : The petitioner has produced 20 documents. Ext.A1
to A20 were marked. Petitioner's evidence closed.
For respondents evidence and hearing to
15.11.2017
15.11.2017 : For respondents evidence and hearing to
12.12.2017
12.12.2017 : Respondents have no evidence. For hearing
adjourned to 20.12.2017
20.12.2017 : For hearing to 04.01.2018
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04.01.2018 : Petitioner was heard. For further hearing to
08.01.2018
08.01.2018 : For further hearing if any to 23.01.2018
23.01.2018 : Petitioner filed objection to IA.No.119/18. For
hearing IA and further hearing of OP adjourned to
30.01.2018
30.01.2018 : IA No.119/18 filed by R3 is allowed. Evidence re-
opened. For evidence to 3.2.18
03.02.2018 : For evidence (No further time) to 21.2.2018
21.02.2018 : For evidence to 22.3.2018
22.03.2018 : R3 is filing witness schedule. Take steps. For
examination of witness. Adjourned to 23.04.2018
23.04.2018 : Doctor is examined as RW1. The other witnesses
present and prayed for time for producing
documents because now only two documents are
available. The documents returned. Witness is
directed to produce all the documents together.
SHO not present. Take steps against the SHO for
the production of documents. Adjourned to
23.05.2018
23.05.2018 : The witness produced documents. The learned
counsel of the insurance company and petitioner
are permitted to verify the documents. For the
examination of witness, if any, adjourned to
12.06.2018. The adjourned date is informed to the
Superintendent through the person who has
produced the documents. Call on 12.06.2018
12.06.2018 : The Superintendent Medical Mission, Kollam is
examined as RW2 and the wound certificate is
marked as Exi. B1. The insurance company has not
taken steps so far. Sufficient time has been given.
Evidence closed. The Sheristhadar, District Court
is directed to take a photocopy of the wound
certificate of Mohammed Shane, Serial No.7070
dated 14.04.2013 who is the petitioner in this case
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and compare it with the book produced herein and
get it attested for marking the wound certificate as
Ext.B1. Return all the wound certificate books
produced from the said hospital after getting
proper acknowledgment and also return the
documents produced from the SHO, Enathu Police
Station in Crime No.1013/2013 after getting
proper acknowledgment. Both sides were heard.
For orders to 18.6.2018.
18.06.2018 : For orders to 19.06.2018
19.06.2018 : Petitioner is entitled to get Rs.10,05,626/- with
cost of Rs.52,680/- vide separate order.
9. A perusal of the B diary reveals that the tribunal had
granted sufficient opportunity to the insurer for adducing evidence. On
12.12.2017, noting that the respondents had no evidence, the evidence
was closed and the case was adjourned for hearing. Thereafter, the
evidence was re-opened on 30.01.2018 and the insurer was granted
time from 30.01.2018 to 12.06.2018. On 12.06.2018, the evidence was
closed noting that the insurance company had not taken steps so far. So,
the allegation of the insurer that they were not afforded sufficient
opportunity to adduce evidence is without any basis. The accident
occurred in 2013 and almost 12 years have elapsed after the accident.
As revealed from B diary, the insurer failed to examine the officers in
the witness list other than RW1 and RW2. Hence, I do not find any
reason to allow the request of the insurer to afford them a further
opportunity to adduce evidence and I decline to interfere with the
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finding of the tribunal that the accident occurred due to the rash and
negligent riding of the motorcyclist.
10. Though the insurer challenged the quantum of
compensation awarded by the tribunal as well, on a perusal of the
records available and the impugned award, I am of the opinion that the
compensation awarded by the tribunal under different heads is not
sufficient enough. Accordingly, I hold that the insurer is not entitled to
get any relief prayed for in appeal.
11. The learned counsel for the claimant claims
enhancement under the following heads:
11.1. Notional income - The learned counsel for the claimant
submitted that he was a fish vendor and was earning ₹25,000/- per
month, however, the tribunal has fixed the monthly income notionally
only at ₹7,000/-. Even going by the judgment in Ramachandrappa v.
Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13
SCC 236], the monthly income of the claimant ought to have been fixed
at ₹9,000/-. Accordingly, following the judgment in Ramachandrappa
(supra), I deem it appropriate to refix the monthly income of the
claimant at ₹9,000/-.
11.2. Loss of earnings - Since the monthly income of the
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claimant is refixed at ₹9,000/-, compensation towards loss of earnings
for a period of six months has to be recalculated, which would come to
₹54,000/-. Thus, the claimant will be entitled to get an additional
compensation of ₹12,000/- towards loss of earnings.
11.3. Pain and suffering - The learned counsel for the
claimant submitted that though an amount of ₹4,00,000/- was claimed
towards pain and suffering, the tribunal awarded only ₹50,000/-. The
claimant sustained grievous injuries and multiple fractures including
severe head injuries, fracture patella left and multiple fracture of facial
skeleton. Considering the injuries sustained by him and the sufferings
that he had undergone, I am inclined to grant an amount of ₹75,000/- to
the claimant as total compensation towards pain and suffering. Thus,
the claimant will be entitled to get an additional amount of ₹25,000/- as
compensation towards pain and suffering.
11.4. Loss of amenities - The learned counsel for the claimant
submitted that the tribunal awarded only ₹40,000/- towards loss of
amenities, which is on the lower side. While considering the gravity of
the injuries, the ordeal underwent by the claimant and the disability
sustained in the accident have to be considered together and as such, I
deem it appropriate to award a total compensation of ₹60,000/- towards
loss of amenities. Thus, the claimant will be entitled to get an additional
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amount of ₹20,000/- towards loss of amenities.
11.5. Permanent disability - Since the monthly income of the
claimant is refixed at ₹9,000/-, compensation towards permanent
disability has to be recalculated. Since the claimant was 21 years at the
time of the accident and he sustained 40% disability, after adding 40%
future prospects to the refixed income, the amount would be ₹12,600/-
(9000 + 3600). Accordingly, following the judgments in National
Insurance Co. Ltd. v. Pranay Sethi [2017(4) KLT 662(SC)] and Sarla
Verma v. Delhi Transport Corporation [2010(2) KLT 802(SC)], the
claimant will be entitled to get a total compensation of ₹10,88,640/-
(12600 x 12 x 18 x 40%) towards permanent disability. Since the
tribunal already awarded ₹4,53,600/- for visual disability and ₹1,51,200/-
for motor disability, totalling to ₹6,04,800/-, there will be an additional
amount of ₹4,83,840/- under the head of permanent disability.
11.6. Extra nourishment - The learned counsel for the
claimant submitted that the tribunal awarded only ₹3,000/- for extra
nourishment, which is on the lower side. It is seen that the claimant had
undergone 41 days inpatient treatment. Considering the fact that the
accident was in the year 2013, I deem it appropriate to award a
compensation of ₹250/- per day towards extra nourishment. Accordingly,
he will be entitled to get a total compensation of ₹10,250/- (250 x 41)
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towards extra nourishment. Thus, there will be an additional
compensation of ₹7,250/- under this head.
12. Though the claimant claimed enhancement of
compensation under other heads as well, on a perusal of the records
available and the impugned award, I am not inclined to interfere with
the same since it appears to be just and reasonable. Thus, the impugned
award of the tribunal is modified as follows:
Sl.
No. Head of Claim Amount Amount Modified Total
claimed awarded in appeal compensation
(in ₹) by the (in ₹) (in ₹)
tribunal
(in ₹)
1. Loss of earnings 250000 42000 12000 54000
2. Transportation 25000 10000 - 10000
expenses
3. Extra nourishment 20000 3000 7250 10250
4. Damage to 2000 2000 - 2000
clothing
5. Medical expenses 300000 241876 - 241876
6. Bystander 25000 12000 - 12000
expenses
7. Pain and 400000 50000 25000 75000
sufferings
8. Permanent
disability: 1000000 483840 1088640
Visual disability 453600
Motor disability
151200
9. Loss of amenities 40000 20000 60000
Total *1005676 548090 1553766
*Wrongly calculated by the tribunal as
₹10,05,626/-
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Accordingly, the following orders are issued:
a) MACA No. 3801 of 2018 is dismissed.
b) MACA No. 2949 of 2018 is allowed in part and the claimant is
awarded an additional compensation of ₹5,48,090/- (Rupees five
lakh forty eight thousand and ninety only) over and above the
compensation awarded by the tribunal with interest @ 8% per
annum from the date of petition till realization and proportionate
costs. The insurer shall deposit the said amount together with
interest and costs within a period of two months from the date of
receipt of a certified copy of this judgment. The claimant shall
furnish copies of the PAN Card, AADHAAR Card and bank details
before the respondent insurer within a period of one month so as
to enable the insurance company to make the deposit as ordered
above. In case of failure to furnish details as above, it shall be open
for the insurance company to deposit the said amount before the
tribunal. Upon such deposit being made, the entire amount shall
be disbursed to the claimant at the earliest in accordance with law.
SD/-
SHOBA ANNAMMA EAPEN
JUDGE
bka/-
