Kerala High Court
Shahana Shafi vs Kishor V B on 16 January, 2025
2025:KER:6550
MACA NO. 2277 & 3024 OF 2022
:-1-:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
THURSDAY, THE 16TH DAY OF JANUARY 2025 / 26TH POUSHA, 1946
MACA NO. 2277 OF 2022
[AGAINST THE AWARD DATED 26.03.2022 IN OPMV NO.2801
OF 2016 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL ,ERNAKULAM]
APPELLANT/4TH RESPONDENT:
NATIONAL INSURANCE COMPANY LTD.
DIVISIONAL OFFICE, JANATHA JN., PALARIVATTOM,
REPRESENTED BY ITS ASSISTANT MANAGER (LEGAL),
NATIONAL INSURANCE COMPANY LTD., KOCHI REGIONAL
OFFICE, OMANA BUILDINGS, JEW STREET, MG ROAD,
ERNAKULAM, PIN - 682035
BY ADVS.
P.G.JAYASHANKAR
P.K.RESHMA (KALARICKAL)
S.RAJEEV (K/001711/2019)
SAJANA V.H
VINITHA S.T.
RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 3 IN OP(MV):
1 SHAHANA SHAFI
AGED 38 YEARS
W/O SHAFI P.A, PONGATTIL HOUSE, NEAR KOTTANGAVU
TEMPLE, VENNALA P.O, ERNAKULAM, PIN - 682028
2 KISHOR V.B.
S/O BABULEYAN, VADAKKINEDATH HOUSE, VENNALA P.O,
KOCHI, PIN - 682028
3 ABDUL SAMAD
2025:KER:6550
MACA NO. 2277 & 3024 OF 2022
:-2-:
S/O HUSSAIN, VARANAD HOUSE, CHALIKKAVATTOM,
VENNALA P.O., KOCHI, PIN - 682028
BY ADV PETERLAL
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 24.10.2024, ALONG WITH MACA.3024/2022, THE
COURT ON 16.01.2025 DELIVERED THE FOLLOWING:
2025:KER:6550
MACA NO. 2277 & 3024 OF 2022
:-3-:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
THURSDAY, THE 16TH DAY OF JANUARY 2025 / 26TH POUSHA, 1946
MACA NO. 3024 OF 2022
[AGAINST THE ORDER DATED 11.12.2024 IN OPMV NO.2801
OF 2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM]
APPELLANT:
SHAHANA SHAFI
AGED 38 YEARS
WIFE OF SHAFI P A PONGATTIL HOUSE NEAR KOTTANGAVU
TEMPLE VENNALA P O ERNAKULAM, PIN - 682028
BY ADV PETERLAL
RESPONDENTS:
1 KISHOR V B
SON OF BAHULEYAN VADAKKINEDATH HOUSE VENNALA P O
KOCHI, PIN - 682028
2 ABDUL SAMAD
SON OF HUSSAIN VARANAD HOUSE CHALIKKAVATTOM
VENNALA P O ERNAKULAM, PIN - 682028
3 SHAFI P A
S/O ABDULLA PONGATTIL HOUSE NEAR KOTTANGAVU
TEMPLE VENNALA P O ERNAKULAM, PIN - 682028
4 NATIONAL INSURANCE COMPANY
DIVISIONAL OFFICE, JANATHA JN, PALARIVATTOM,
VYTTILA, KOCHI, KERALA 682019 NOW OPERATING AT
KOCHI REGIONAL OFFICE, OMANA BUILDINGS, JEW
STREET. M G ROAD, ERNAKULAM REPRESENTED BY ITS
MANAGER, PIN - 682035
2025:KER:6550
MACA NO. 2277 & 3024 OF 2022
:-4-:
BY ADVS.
P.G.JAYASHANKAR
P.K.RESHMA (KALARICKAL)(K/875/2014)
S.RAJEEV (K/001711/2019)(K/001711/2019)
SAJANA V.H(K/1174/2021)
VINITHA S.T.(K/704/2021)
RUBY K. ROY(K/001015/2017)
SARATH BABU KOTTAKKAL(K/000585/2016)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 24.10.2024, ALONG WITH MACA.2277/2022, THE
COURT ON 16.01.2025 DELIVERED THE FOLLOWING:
2025:KER:6550
MACA NO. 2277 & 3024 OF 2022
:-5-:
JUDGMENT
These appeals arise from the award dated 26.03.2022 in
OP(MV) No.2801 of 2016 of the Motor Accidents Claims Tribunal,
Ernakulam. MACA No.2277/2022 is filed by the insurer challenging the
compensation awarded by the tribunal as well as the finding of the tribunal
regarding the composite negligence of the driver of the car and
autorickshaw, whereas MACA No.3024/2022 is filed by the claimant
dissatisfied with the compensation awarded by the tribunal. Since the
parties and the cause of action are the same, the appeals are heard
together and are being disposed of by this common judgment. For brevity,
the parties are referred to as they are arrayed before the tribunal.
2. The brief facts of the case are as follows:-
On 10.01.2016 at about 8.30 PM, the claimant was travelling along
with her children in an autorickshaw bearing registration No.KL-7 BQ-
4882, driven by the third respondent-husband from north to south through
Edapally - Aroor NH bypass, a four-lane road divided by a median. When
they reached Vysali Junction, Chalikkavattom, the third respondent turned
the vehicle towards the west and took a U-turn. Then, a car bearing
registration No. KL-07 CB-9749 owned and driven by the first respondent
came from south to north and hit on the rear side of the autorickshaw
2025:KER:6550
MACA NO. 2277 & 3024 OF 2022
:-6-:
whereby it toppled down, and the claimant sustained serious injuries. The
first and third respondents herein were the drivers of the car and
autorickshaw respectively. The second respondent was the owner and the
fourth respondent was the insurer of the autorickshaw. The claimant
approached the tribunal claiming a total compensation of ₹50,00,000/-.
3. The respondents 1 to 3 remained ex-parte before the tribunal.
The fourth respondent insurer admitted the policy, but according to them,
they have no liability to pay compensation as the accident occurred due to
the rash and negligent driving of the driver of the car. Further, it was
contended that the driver of the car was under the influence of alcohol and
did not have a valid driving licence, valid registration certificate, tax token
and valid insurance policy at the time of the accident. Therefore, they
disputed the liability as well as the quantum of compensation claimed.
PWs.1 to 4 were examined and Exts.A1 to A17 were marked on the side
of the claimant. Ext.B1 and B2 were marked on the side of the
respondents. Exts.X1 and X2 were marked as court exhibits. The tribunal,
after analyzing the pleadings and materials on record, awarded a sum of
₹30,63,950/- as compensation under different heads with interest @8.5%
per annum from the date of petition till realization, against the 4th
respondent, the insurer. The Insurer has come up in appeal challenging
2025:KER:6550
MACA NO. 2277 & 3024 OF 2022
:-7-:
the impugned award and also disputing the liability to pay compensation,
whereas the claimant has come up in appeal dissatisfied with the quantum
of compensation awarded by the tribunal.
4. I heard Sri.Peterlal, the learned counsel for the claimant and
Sri.P.G.Jayashankar, the learned Standing Counsel for the insurer.
5. The learned counsel for the claimant submitted that Ext.A2
scene mahazar and A13 final report prove that the accident occurred very
close to the western side of the road. Ext A13 final report also states that
the collision occurred when the autorickshaw abruptly cut across the path
of the car, which was moving through the western lane of the highway.
The learned counsel also submitted that the collision could have been
avoided if the autorickshaw, after taking the U-turn, had stayed in the first
lane. In Ext.B1 Drunkenness Certificate, it is stated that no scientific test
was conducted to prove that the driver of the car was under intoxication of
liquor. Hence, it was argued that the finding of the tribunal that there was
composite negligence on the part of the drivers of both vehicles is to be
upheld.
6. The learned counsel appearing for the insurer submitted that
the oral evidence of PW1 categorically proved negligence on the part of
the driver of the car. It was further argued that the tribunal relied on the
2025:KER:6550
MACA NO. 2277 & 3024 OF 2022
:-8-:
oral testimony of PW4, who is the claimant/wife of the driver of the
autorickshaw. The learned counsel for the insurance company also
argued that Ext.B1 certificate of drunkenness and Ext.B2 FIS would
categorically point out that the driver of the car is solely negligent and
contributed to the accident. It was further argued that the charge sheet
was drawn against the driver of the car and not against the driver of the
autorickshaw. Hence, the finding of the tribunal that there was composite
negligence is not correct. It was further submitted that, merely because
the car did not have a valid insurance policy at the time of the accident,
the insurer of the autorickshaw cannot be held liable for paying the
compensation awarded by the tribunal.
7. I have considered the rival contentions raised on both sides.
8. The fact that the accident occurred by collision of car bearing
registration number KL-07 CB 9749 and autorickshaw bearing registration
number KL-07 BQ 4882 driven by the husband of the claimant is admitted.
The claimant along with her children was travelling in the autorickshaw
through Edapally - Aroor NH Bypass, a four-lane road divided by a
median. The third respondent, who is the claimant's husband as well as
the driver of the autorickshaw coming from north to south, took a U-turn
when it reached Vaisali Junction, Chalikkavattom, and moved forward;
and the car, which was coming from south to north, hit the rear side of the
2025:KER:6550
MACA NO. 2277 & 3024 OF 2022
:-9-:
autorickshaw; and the autorickshaw toppled down; and thus, the claimant
was injured. Exts.A3 and A4 reports of the AMVI establish the damages
caused to the car as well as to the autorickshaw.
9. The investigating officer charge-sheeted the driver of the car
alleging commission of offences punishable under Sections 279, 337, 338
IPC and also Section 3(1) r/w 181, Section 146 r/w 196, Section 148 r/w
177 and Section 38 r/w 192 of the Motor Vehicles Act.
10. The driver of the car did not have a valid driving licence and
said to be that he was under the influence of alcohol at the time of the
accident. The offending car did not have valid insurance also. As per
Ext.A2 Scene Mahazar, the place of occurrence is 2.5 meters from the
western tar end. The road had a width of 9 meters on the west of the
median. The fact that the autorickshaw took a U-turn and entered the
western track of the road is also admitted. From the available records, it is
seen that, the autorickshaw, after taking a U-turn, has moved to the next
track on the western side. The car was moving on its proper track keeping
the left track on its proper side. The autorickshaw, while taking a U-turn,
ought to have maintained the first track without moving to the next track. If
that was so done, the accident could have been avoided. Although the
car driver's lack of licence and intoxication were contributing factors, they
do not exclusively explain the cause of the accident. PW1, the
2025:KER:6550
MACA NO. 2277 & 3024 OF 2022
:-10-:
investigating officer, has testified that the car was moving through the
western track of the road, which is its designated track. PW1 also stated
that the claimant gave Ext.B2 statement that the accident was due to the
sole negligence of the driver of the car. However, PW4 claimant, testified
that no such statement was given before the investigating officer. PW4,
who was travelling in the autorickshaw and an eyewitness to the incident,
has testified that the accident occurred due to the negligence of the driver
of the car as well as the driver of the autorickshaw, the husband of the
claimant. Driving a car without a driving licence, insurance and under the
intoxication of alcohol is certainly a criminal offence. However, that alone
cannot be taken as reasons for negligent driving. If the driver of the
autorickshaw had been more vigilant while taking the U-turn, the accident
could have been avoided.
11. The contention of the learned counsel for the insurer is that
there was collusion between the claimant and the driver of autorickshaw,
being the husband and wife. He relied on the decision in M.Clarance vs
M.Raicheal [1964 0 AIR (Kar)67], and submitted that the claimant was
wrongfully withholding relevant facts from the court in order to make the
insurance company liable since the car was not having a valid insurance
at the time of the accident.
12. I do not find much force in the argument of the learned
2025:KER:6550
MACA NO. 2277 & 3024 OF 2022
:-11-:
counsel for the insurer since it is clear from the facts of the case that the
accident occurred due to the composite negligence on the part of the
driver of the car as well as the driver of the autorickshaw. Merely because
the claimant was the wife of the driver of the autorickshaw it cannot be
presumed that she had withheld wrongful information. In Anthony.T.O. vs
Karvarnan and Ors [2008 (2) KHC 80], the apex court has held as
follows:-
"Composite negligence refers to the negligence on the
part of two or more persons. Where a person is injured as a
result of negligence on the part of two or more wrongdoers, it is
said that the person was injured on account of composite
negligence of those wrongdoers. In such a case, each
wrongdoer is jointly and severally liable to the injured for
payment of the entire damages and the injured person has the
choice of proceeding against all or any of them. In such a case
the injured need not establish the extent of responsibility of
each wrongdoer separately nor is it necessary for the court to
determine the extent of liability of each wrongdoer
separately........"
In the case on hand, from the documents on record and the evidence
available, it is found that there was composite negligence on the part of
the driver of the car as well as the driver of the autorickshaw in causing
the accident. Hence, I do not find any reason to interfere with the finding
of the tribunal on composite negligence. Accordingly, I agree with the
finding of the tribunal that the fourth respondent being the insurer of the
autorickshaw is liable to indemnify the second respondent, the owner of
the offending autorickshaw and to pay compensation to the claimant.
2025:KER:6550
MACA NO. 2277 & 3024 OF 2022
:-12-:
13. The learned counsel for the claimant also sought for
enhancement of compensation under different heads.
13.1 NOTIONAL INCOME : The learned counsel for the claimant
submitted that the claimant, a housewife, had claimed an amount of
₹12,000/- per month, but the tribunal has fixed the monthly income as
₹10,000/-. The accident occurred on 10.01.2016. Even going by the
judgment in Ramachandrappa v. Manager, Royal Sundaram Alliance
Insurance Company Ltd. [(2011) 13 SCC 236], the income ought to
have been fixed as ₹10,500/-. However, the tribunal has fixed the monthly
income as ₹10,000/-. Accordingly, I find it appropriate to re-fix the monthly
income at ₹10,500/-.
13.2 PERMANENT DISABILITY/LOSS OF EARNING POWER:
For awarding compensation under the head Permanent Disability,
the tribunal has added only 10% of the notional income fixed towards
future prospects whereas the appellant who was aged 32 years, the
tribunal ought to have added 40% of the income fixed towards future
prospects following the judgment in National Insurance Co.Ltd. v.
Pranay Sethi [2017(4) KLT 662(SC)]. Accordingly, I find that for awarding
compensation under the afore head, 40% of the notional income now fixed
by this court has to be added towards future prospects, which will come to
₹14,700 (₹10,500 + 10,500 X 40/100).
2025:KER:6550
MACA NO. 2277 & 3024 OF 2022
:-13-:
Ext.X1 disability certificate would show that the petitioner has 80%
permanent disability. However, the tribunal has taken her functional
disability as 90%. The learned counsel for the claimant submitted that
prior to the accident, she was doing all household works such as
upbringing of children, day-to-day family affairs, caring of husband and all
the other incidental things. But, after the accident, she has become totally
paralyzed from the hip level making her unable to move both legs and she
always needs a bystander to do day-to-day activities. Due to the injuries
sustained, the claimant, being a housewife and mother, has been
completely unable to perform her obligations towards family. Considering
the injuries sustained as well as the facts of the case, I find it appropriate
to refix the functional disability at 100%. Hence, the appellant will be
entitled to get a total compensation of ₹28,22,400/-
[₹14700x12x16x100/100] towards permanent disability. The tribunal has
already awarded an amount of ₹19,00,800/-. Hence, there will be an
additional amount of ₹9,21,600/- under the head of permanent
disability/loss of earning power.
13.3 ATTENDANT/BYSTANDER EXPENSES:
The learned counsel appearing for the claimant also submitted that
being 100% disabled, she needs an attendant throughout her life. I find
force in the submission of the learned counsel for the claimant. In
2025:KER:6550
MACA NO. 2277 & 3024 OF 2022
:-14-:
Jithendran v. New India Assurance Co. Ltd. & Another [(2022) 15
SCC 620], it was held that multiplier method has to be adopted for
assessing compensation towards attendant/bystander expenses if the
claimant has 100% disability and to quantify the expenses for the
attendant/bystander, the apex court fixed an amount of ₹5,000/- per
month as the bare minimum and the compensation towards
attendant/bystander expenses was arrived at, by applying the multiplier
method taking into account the age of the claimant therein. The claimant
in this case is also entitled to get the benefit of the judgment in
Jithendran (supra).
Accordingly, I fix an amount of ₹5,000/- as the monthly expenses
for the attendant/bystander. As the appellant was aged 32 years at the
time of the accident, the multiplier to be adopted is 16. Thus, the
compensation payable under the attendant/bystander expenses will be
₹9,60,000/- (₹5,000 x 12 x 16). Since the tribunal has awarded only an
amount of ₹76,800/-, there will be an additional amount of ₹8,83,200/-
under the afore head.
13.4 PAIN AND SUFFERING
Towards pain and suffering, though an amount of ₹2,00,000/- was
claimed, the tribunal has awarded only an amount of ₹1,50,000/-.
Considering the fact that she is 100% disabled, I find that an amount of
2025:KER:6550
MACA NO. 2277 & 3024 OF 2022
:-15-:
₹5,00,000/- is to be awarded under the head 'pain and suffering'. As the
tribunal has awarded only an amount of ₹1,50,000/-, there will be an
additional amount of ₹3,50,000/- under the afore head.
13.5 LOSS OF AMENITIES
Towards loss of amenities, though an amount of ₹3,00,000/- was
claimed, the tribunal has awarded only an amount of ₹2,50,000/-.
Considering the age as well as the nature of the injuries sustained, I find
that the claimant is entitled to an amount of ₹4,00,000/- under the afore
head. Hence, there will be an additional amount of ₹1,50,000/-.
14. Though the claimant as well as the insurer challenged the
compensation awarded by the tribunal 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.
15. Thus, the impugned award of the tribunal is modified as follows:
Sl. Head of claim Amount Amount modified total
No claimed awarded in appeal compensation
by the
tribunal
1 Transport to 50,000 40,000 - 40,000
hospital and
back to home
2025:KER:6550
MACA NO. 2277 & 3024 OF 2022
:-16-:
Damage to - 1000 - 1000
2 clothing and
articles
3 Extra 50,000 30,000 - 30,000
nourishment
4 Medical 10,00,000 5,15,350 - 5,15,350
expenses
including future
treatment
5 Future - 1,00,000 - 1,00,000
treatment
6 Attendant 10,00,000 76,800 8,83,200 9,60,000
expenses
7 Compensation 2,00,000 1,50,000 3,50,000 5,00,000
for pain and
suffering
8 Compensation 3,00,000 2,50,000 1,50,000 4,00,000
for loss of
amenities and
enjoyment in life
9 Compensation 24,48,000 19,00,800 9,21,600 28,22,400
for loss of
earning
power/Permane
nt Disability
Total 50,48,000 30,63,950 23,04,800 53,68,750
Accordingly, the following orders are issued.
1. MACA No.2277 of 2022 filed by the insurance company is
dismissed.
2. MACA No.3024 of 2022 filed by the claimant is allowed in part
2025:KER:6550
MACA NO. 2277 & 3024 OF 2022
:-17-:
and the impugned award is modified, awarding the claimant
an additional compensation of ₹23,04,800/- (Rupees Twenty
Three Lakh Four Thousand and Eight Hundred only) over and
above the compensation awarded by the tribunal with interest
@ 8.5% 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.
3. The claimant shall furnish copies of the PAN Card, ADHAAR
Card and bank details before the 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
MBS/
2025:KER:6550
MACA NO. 2277 & 3024 OF 2022
:-18-:
RESPONDENT ANNEXURES
Annexure A1 DISABILITY CERTIFICATE (EXT.X1)
