Kerala High Court
Niyas K.A vs Habeeb V.A on 17 February, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TH
MONDAY, THE 17 DAY OF FEBRUARY 2025 / 28TH MAGHA, 1946
MACA NO. 355 OF 2018
AGAINST THE ORDER DATED 10.05.2017 IN OP(MV) NO.345 OF 2012
OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR
APPELLANT/PETITIONER:
NIYAS K.A
AGED 21 YEARS,
S/O, ABDUL HAMEED,
KALARAIPARAMBIL HOUSE,
VANIYAKKAD, MANNAM,
KOTTUVALLY VILLAGE,
PARAVUR TALUK,ERNAKULAM DISTRICT.
BY ADVS.
SRI.G.BALAMURALEEDHARAN (PARAVUR)
SRI.DEEPAK JOY.K.
RESPONDENTS/RESPONDENTS:
1 HABEEB V.A
S/O.ALIKUNJI,6/630, VADAKKEVEETTIL
HOUSE,EDAVANAKKAD.P.O,PIN-682502,
KOCHI TALUK,ERNAKULAM DISTRICT.
MACA No.355 of 2018
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2 ROMI ROBERT
S/O.ROBERT,KANAPPILLY HOUSE,OLANADU,
VARAPUZHA.P.O,
PIN-683517,VARAPUZHA VILLAGE,
PARAVUR TALUK,ERNAKULAM DISTRICT.
3 NATIONAL INSURANCE CO.LTD
BRANCH OFFICE, MAIN ROAD,
NORTH PARAVUR.
P.O-683513.
R3 BY ADV. DEEPA GEORGE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 17.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA No.355 of 2018
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JUDGMENT
The petitioner in OP(MV)No.345 of 2012 on the file of Motor
Accidents Claims Tribunal, North Paravur, has filed this appeal seeking
enhancement of compensation awarded, for the injuries sustained to
him in a motor accident that occurred on 14.04.2012.
2. The case of the petitioner in brief is as follows:
On 14.04.2012 at 10.20 p.m., while the petitioner was travelling
as a pillion rider in a motorcycle bearing Registration No.KL-42-D-4353,
through Kalamassery - Palarivattom road, and when reached near KSEB
office, Edappally, a car bearing Registration No.KL-07-AN-7129, driven
by the 1st respondent in a rash and negligent manner and at exorbitant
speed which came from the opposite direction, hit on the motorcycle in
which the petitioner was on the pillion. Due to the impact of the hit, the
petitioner was thrown to the road causing severe injuries on him.
3. The driver and owner of the offending car were arrayed
as 1st and 2nd respondents respectively, whereas, the insurer of the car
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was arrayed as 3rd respondent. 1st and 2nd respondents remained
ex-parte and the 3rd respondent insurance company contested the
petition by filing a written statement mainly disputing the quantum of
compensation claimed. However, the 3rd respondent admitted insurance
coverage of the car involved in the accident.
4. I heard Sri. G. Balamuraleedharan, learned counsel for
the appellant, and Smt. Deepa George, the learned counsel for the
respondent.
5. The learned counsel for the petitioner would submit that
the compensation awarded by the Tribunal under various heads is too
meager. It is pointed out that the Tribunal erred in assessing the
income of the petitioner reasonably, for the purpose of calculating
compensation under the head of permanent disability. According to the
counsel, the Tribunal ought to have given due weightage to the fact
that the petitioner was a B.Tech Student having brilliant academic
background. It is urged that, the accident will definitely tell much upon
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the career and future of the injured, and overlooking the same, the
Tribunal awarded only a meager amount under the head of permanent
disability and future loss of earnings. The counsel further submitted
that as the petitioner is evidently affected with a disability of 56%, due
to the injuries sustained in the accident, his entire future was shattered.
6. Per contra, the learned counsel for the insurance
company vehemently opposed contentions raised by the counsel for the
appellant. According to the counsel, the compensation awarded by the
Tribunal under various heads is reasonable and in consonance with the
injuries sustained by the petitioner. It is further contended that, other
than making a bare averment in the petition that the petitioner was a
B.Tech Student, no documents from the college where he studied have
been produced from the side of the petitioner to substantiate the same.
Moreover, there is not even a scrap of paper to show that the petitioner
was a brilliant student having a good academic background and he was
pursuing the B.Tech course with scholarship. According to the counsel,
the income assessed by the Tribunal for the purpose of assessing
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compensation under the head of permanent disability is just and
reasonable and no interference is warranted.
7. I have perused the impugned award as well as the
available records. Evidently, no documents, issued from the institution
where the petitioner was allegedly studying, are seen produced from
the side of the petitioner to show that, he was a B.Tech student at the
time of the accident. Anyhow, in the claim petition, there is a specific
averment that the petitioner was pursuing B.Tech at FISAT, Angamaly,
at the time of the accident. Despite the petitioner's said categorical
assertion, the respondent failed to deny or controvert the same in the
written statement. Therefore, I am of the view, that the assertion in the
petition that the petitioner was a B.Tech student at the time of the
accident, can be treated as admitted as there is no specific denial in the
written statement.
8. Moreover, the criminal law in connection with the
accident occurred in this case was set in motion on the strength of FIS
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given by a friend of the injured, who is the 1st respondent in this case.
Notably it was in his bike the petitioner was travelling while the
unfortunate accident occurred. In the said FIS, it is specifically
mentioned that the First informant, who is the 1st respondent herein,
was an engineering student and the petitioner who was on the pillion of
his bike was his classmate. Of course, the said statement will lend
sufficient corroboration to the case of the petitioner that he was a
B.Tech student at the time of the accident. In common parlance, we
cannot expect that at the time of giving a statement after a shocking
incident, the First informant will concoct facts with a malicious intent to
raise false claims later. Therefore, the absence of specific denial as well
as the statement in the FIS clearly establishes that the petitioner was a
B.Tech student at FISAT college at the time of the accident. I am not
oblivious that FIS is not substantive evidence to treat the contents
therein as true. However, it is trite that the standard of proof required
in a petition seeking compensation under the Motor Vehicles Act is not
as much strict as in criminal cases. The tribunal can even act on the
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preponderance of probabilities. In short, I am of the considered view
that the respondent insurance company could not be heard to say that
the petitioner was not a B.Tech student at the time of the accident,
especially when there is no specific denial in the written statement.
9. Now, the question to be considered is what is the income
that can be assessed for the purpose of determining compensation
under the head of permanent disability and loss of earnings. A perusal
of the award reveals that the Tribunal assessed the income of the
petitioner at Rs.4,000/- notionally. Similarly, no addition is seen made
to the income towards future prospects, undermining the fact that the
petitioner was affected with a disability of 56%. Therefore, I am of the
view that the Tribunal went wrong in accessing the income of the
petitioner. It is already found that the petitioner was a B.Tech student
at the time of the accident. Considering the course of study the
petitioner was pursuing, his academic background, and the job
opportunities he was likely to have in the future, I am of the view that
the petitioner's income can be reasonably fixed at Rs.15,000/- per
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month.
10. The disability certificate issued from the Medical Board
which was marked as Ext.X1 shows that, the petitioner suffered a
permanent disability of 56% due to the injuries sustained to him in the
accident. Similarly, the nature of the injuries sustained by the petitioner
justifies the assessment of such a percentage of disability. It is evident
that the injuries sustained by the petitioner in the accident will
undoubtedly have a profound impact on the petitioner's earning
capacity and the impairments and difficulties caused by the petitioner
will likely persist throughout his lifetime. Considering the same, I am of
the view that an addition of 40% has to be made to the income of the
petitioner towards his future prospects. After adding 40%, the income
of the petitioner can be fixed at Rs.21,000/-, the petitioner was aged
21 at the time of the accident, in view of the decision in Sarla Verma
v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)], the
multiplier applicable in his case is 18. Hence the petitioner is found
entitled to get an amount of Rs.25,40,160/- [Rs.21,000 x 12 x 18 x
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56/100]. Already an amount of Rs.4,83,840/- has been awarded by the
Tribunal under the head of permanent disability. After deducting the
said amount the petitioner is found entitled to get an amount of Rs.
20,56,320/- (Rupees Twenty Lakhs Fifty Six Thousand Three Hundred
and Twenty Only) as additional compensation under the head of
permanent disability.
11. Consequent to the revision in the monthly income some
corresponding enhancement has to be made towards the loss of
earnings also. Highlighting the nature of the injuries, the learned
counsel for the petitioner would submit that the petitioner was in a
vegetated state for more than two years and still his condition
improved only a little. The nature of the injuries sustained to the
petitioner itself shows that the petitioner would have been prevented
from doing any job or earning any income at least for six months. The
Tribunal also took into account a six months period of loss of earnings.
I am fully concurring with the same. Hence, the petitioner is found
entitled to get an amount of Rs.90,000/- [15,000 x 6] under the head
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of loss of earnings. After deducting the already awarded amount of
Rs.24,000/- under the said head, the petitioner is found entitled to get
an amount of Rs.66,000/- (Rupees Sixty Six Thousand only) as
additional compensation under the head of loss of earnings. The
compensation awarded under other various heads is just and
reasonable and no interference is warranted. Therefore, an amount of
Rs.21,22,320/- (Rs.20,56,320/- + Rs.66,000/-) has to be added
towards the total compensation.
In the light of the aforesaid observations and findings, the
appeal is allowed by enhancing the compensation by a further amount
of Rs.21,22,320/- (Rupees Twenty One Lakh Twenty Two Thousand
Three Hundred and Twenty only) with interest at the rate of 7% per
annum on the enhanced compensation from the date of claim petition
till the date of deposit, after deducting interest for a period of 161 days,
i.e., the period of delay in preferring this appeal and as directed by this
Court on 03.01.2022 in C.M.Appln. No.1/2018. The respondent
insurance company is ordered to deposit the enhanced compensation
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with interest before the tribunal with proportionate costs within a
period of three months from the date of receipt of a certified copy of
the judgment. Immediately on the compensation amount being
deposited, the tribunal shall, after deducting the liability of the
appellant/petitioner towards court fee, disburse the compensation
amount to the appellant/petitioner in accordance with law.
Sd/-
JOBIN SEBASTIAN,
JUDGE
HKH/17.02.2025
