Kerala High Court

Abdul Raoof vs The Manager, National Insurance ... on 21 May, 2025

MACA. No.1872/2016




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             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

           THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR

  WEDNESDAY, THE 21ST DAY OF MAY 2025 / 31ST VAISAKHA, 1947

                      MACA NO. 1872 OF 2016

       AGAINST THE AWARD DATED 16.03.2016 IN OPMV NO.34 OF

2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, WAYANAD, KALPETTA

APPELLANT/PETITIONER:

             ABDUL RAOOF
             AGED 39 YEARS, S/O. ABOOBACKER,
             MANNIL HOUSE, PINANGODE POST,
             KALPETTA, WAYANAD DISTRICT.


             BY ADV SMT.CELINE JOSEPH


RESPONDENT/RESPONDENT NO.3:

             THE MANAGER, NATIONAL INSURANCE COMPANY LTD.
             DIVISIONAL OFFICE-1, P.M. TAJ ROAD,
             KOZHIKODE-673 001.


             BY ADV SRI.P.G.GANAPPAN, STANDING COUNSEL


      THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 21.05.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA. No.1872/2016




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                              JUDGMENT

Dated this the 21st day of May, 2025

The petitioner in O.P.(M.V.) No.34/2015 on the file of the Motor

Accident Claims Tribunal, Wayanad, Kalpetta is the appellant herein.

(For the purpose of convenience, the parties are hereafter referred to as

per their rank before the Tribunal).

2. The petitioner filed the above O.P. under Section 166 (1)(a) of

the Motor Vehicles Act, 1988, claiming compensation for the injuries

sustained in a motor vehicle accident that occurred on 20.4.2014.

According to the petitioner, on 20.4.2014 at about 12 p.m., while he was

riding pillion on a Scooter from Kalpetta to Kozhikode, and when he

reached a place called Pookode, a car bearing registration No.KL-11U-

6309 driven by the 1st respondent in a rash and negligent manner,

knocked him down and as a result of the accident, the petitioner

sustained serious injuries.

3. The 1st respondent is the driver, the 2 nd respondent is the owner

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and 3rd respondent is the insurer of the offending vehicle. According to

the petitioner, the accident occurred due to the negligence of the driver

of the offending vehicle. The quantum of compensation claimed in the

O.P. is Rs.12,92,000/- limited to Rs.7,00,000/-.

4. The insurance company filed a written statement, admitting the

accident as well as policy, but disputing the negligence on the part of the

driver of the offending vehicle.

5. The evidence in the case consists of the oral testimony of PW1

and documentary evidence Exhibits A1 to A13 series and C1. No

evidence was adduced by the respondents.

6. After evaluating the evidence on record, the Tribunal found

negligence on the part of the driver of the offending vehicle, awarded a

total compensation of Rs.4,07,500/- and directed the insurer to pay the

same.

7. Aggrieved by the quantum of compensation awarded by the

Tribunal, the petitioner preferred this appeal.

8. Now the point that arises for consideration is the following:

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Whether the quantum of compensation awarded by

the Tribunal is just and reasonable?

9. Heard Smt. Celine Joseph, the learned Counsel appearing for

the petitioner/appellant and Sri.P.G. Ganappan, the learned Standing

Counsel for the 3rd respondent.

10. The Point: In this case the accident as well as valid

insurance policy of the offending vehicle are admitted. One of the

contentions raised by the learned counsel for the petitioner is regarding

the income of the petitioner as fixed by the Tribunal. According to her,

the petitioner was conducting Cable TV Network service, earning

Rs.15,000/- per month, but the Tribunal fixed his monthly income at

Rs.6,000/-. The learned counsel for the insurer would argue that the

income fixed by the tribunal is reasonable.

11. In order to prove the income of the petitioner, the learned

counsel has relied upon Exhibit A11 and A12 documents. Exhibit A11 is

the Registration certificate in favour of the petitioner issued by the

Postmaster, Kalpetta for conducting Cable TV Network Service at

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Pinangode. Exhibit A12 is the copy of the rent deed in respect of the

room taken by the petitioner for conducting the cable TV Network

service.

12. It is true that the petitioner could not prove his income, as

claimed in the OP. However from Exhibit A11 and A12 and from the

evidence given by the petitioner as PW1, it is proved that the petitioner

was a Cable TV Network Operator by profession. Since from Exhibit

A11 and A12, it is revealed that the petitioner was conducting Cable TV

Network Service, the learned counsel for the petitioner prayed for fixing

the notional income of the petitioner at Rs.15,000/-.

13. As per the dictum laid down by the Hon'ble Supreme Court in

the decision in Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Co. Ltd. [2011 (13) SCC 236], the notional income

of a coolie, in the 2014 will come to Rs.9,500/- Therefore, the petitioner

being a Cable TV Network Operator by profession, his notional income

is fixed at Rs.12,000/-, for the purpose of computing the loss of

disability.

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14. In the accident the petitioner sustained the following injuries:

"1. Comminuted fracture shaft of femur mid 1/3rd right.

2. Comminuted fracture trochanter right hip, and

3. Comminuted fracture mid 1/3rd right tibia with intact fibula."

Petitioner was treated as inpatient for a period of 18 days. In the

meanwhile, he had under gone four surgeries also.

15. As per Exhibit C1 disability certificate issued by the medical

board, his permanent physical disability was assessed as per Mc Bride

Scale at 20% and as per National Institute of Orthopedically

Handicapped (NIOH) Scale at 52%. From Exhibit C1 disability

certificate, it is revealed that the petitioner has complaints of difficulty in

squatting and sitting cross legged. He could walk with the help of elbow

crutches. There is shortening of right lower limb by 2.5 inches. There is

partial ankylosis right hip and knee with terminal restriction of flexion

and rotations.

16. According to the learned counsel, the functional disability of

the petitioner is much more than what is shown in Exhibit C1. In order

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to substantiate the said argument, the learned counsel has produced the

petitioner before this court on 10.4.2025. At that time, this Court

noticed that the petitioner could walk only with the help of crutches.

Since even after 11 years of the accident, he could not walk freely,

considering the fact that being a Cable TV Operator by profession, his

functional disability will be much more than the physical disability as

shown in Exhibit C1. In the above circumstances, the disability of the

petitioner assessed as per NIOH scale at 52% is taken as the functional

disability of the petitioner.

17. On the date of accident, the petitioner was aged 38 years.

Therefore, 40% of the monthly income is to be added towards future

prospects, as held in the decision in National Insurance Co. Ltd v.

Pranay Sethi [(2017) 16 SCC 680] and the multiplier to be applied is

15, as held in Sarla Verma v. Delhi Transport Corporation, [(2009) 6

SCC 121]. In the above circumstances, the loss of disability will come to

Rs.15,72,480/-

18. Towards loss of earning, the Tribunal has awarded only

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Rs.36,000/- being the income for 6 months @Rs.6000/-. According to

the petitioner, the petitioner was treated for a period of about 11/2 years

and as such the loss of disability awarded by the Tribunal is on the lower

side. However, according to the learned standing counsel, the

compensation awarded on that head is reasonable. In this case, the

petitioner sustained serious injuries and he had undergone four surgeries

and there was shortening of right lower limb by 2.5 inches. As per the

medical evidence available, he was discharged from the hospital lastly

on 10.8.2015. In the above circumstances, I hold that towards loss of

income, the petitioner is entitled to get the notional income for a period

of 12 months. Therefore, towards 'loss of income' the petitioner is

awarded a sum of Rs.1,44,000/- (12,000x 12 months).

19. Towards the head 'pain and sufferings', the Tribunal has

awarded Rs.40,000/- Towards 'loss of amenities of life' no compensation

was awarded. Towards bystander expenses and towards 'extra

nourishment' Rs.2,700/- each was awarded. According to the learned

counsel for the petitioner, the compensation awarded on those heads are

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on the lower side.

20. The petitioner sustained very serious injuries in the accident

and was treated as inpatient for 18 days. Because of the injuries

sustained, the percentage of disability suffered and the length of

treatment undergone by the petitioner, I hold that the compensation

awarded by the Tribunal on the heads 'pain and sufferings', 'loss of

amenities of life', 'bystander expenses' and 'extra nourishment' are on the

lower side and hence they are enhanced to Rs.1,00,000/-, Rs.70,000/-,

Rs.4,500/- and Rs.10,000/- respectively.

21. Towards transportation expenses, the Tribunal has awarded

only Rs.10,000/-. The learned counsel relying upon the Exhibit A13

series vouchers, would argue that the petitioner has spent a sum of

Rs.26,360/- towards transportation expenses. I do not find any grounds

to disbelieve Exhibit A13 series and as such towards transportation

expenses, a sum of Rs.26,360/- is awarded.

22. The petitioner has produced additional medical bills worth

Rs.54,000/-. Therefore, towards additional medical expense, a sum of

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Rs.54,000/- is awarded. Relying upon Exhibit A10 certificate issued

from the Kozhikode District Co-operative Hospital, the learned counsel

would argue that the petitioner still requires a considerable amount for

future treatment. In Exhibit A10, it is stated that implant removal and

further surgery is required and for that a sum of Rs.1,60,000/- is the

approximate amount required. The learned counsel fairly conceded that

medical bills worth Rs.54,000/- produced is in respect of treatment in

connection with removal of implant. Therefore, considering the facts, I

hold that towards future medical expense, a sum of Rs.50,000/- can be

awarded, which will carry interest only from the date of this judgment

(21.5.2025).

23. No change is required, in the amounts awarded on other

heads, as the compensation awarded on those heads appears to be just

and reasonable.

24. Therefore, the petitioners/appellants are entitled to get a total

compensation of Rs.21,93,000/-, as modified and recalculated above and

given in the table below, for easy reference:

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Sl.

No. Head of Claim Amount awarded by Amount Awarded in Tribunal (in Rs.) Appeal (in Rs.) 1 Loss of earning 36,000/- 1,44,000/- 2 Bystander expenses 2,700/- 4,500/- (250x18) 3 Transport to hospital 10,000/- 26,360/- 4 Extra nourishment 2,700/- 10,000/- 5 Damage to clothing 1,000/- 1,000/-

6 Medical expenses 1,60,500/- 1,60,500/-

     Additional medical expense                      54000
   7 Pain and suffering            40,000/-          1,00,000/-
   8 Compensation for disability   1,29,600/-        15,72,480/-
   9 Loss of amenities             Nil               70,000/-
  10 Future treatment              25,000/-          50,000/-
       Total                       4,07,500/-        21,92,840/- rounded
                                                     to 21,93,000/-
       Amount enhanced - Rs.17,85,500/-

25. In the result, this Appeal is allowed in part, and Respondent

No.3 is directed to deposit a total sum of Rs.21,93,000/- (Rupees twenty

one lakh ninety three thousand only), less the amount already deposited,

if any, along with interest at the rate ordered by the Tribunal, from the

date of the petition till deposit/realisation, with proportionate costs,

within a period of two months from today. (Enhanced compensation will

carry interest @8%).

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26. On depositing the aforesaid amount, the Tribunal shall

disburse the entire amount to the petitioner, excluding court fee payable,

if any, without delay, as per rules.

Sd/-

C. PRATHEEP KUMAR, JUDGE sou.

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PETITIONER ANNEXURES

ANNEXURE A1 THE CASH BILL DATED 06.10.2016 ISSUED FROM THE KOZHIKODE DIST., CO-OPERATIVE HOSPITAL, KOZHIKODE.

ANNEXURE A2 THE BILL CUM RECEIPT DATED 23.03.2018 ISSUED FROM THE KOZHIKODE DIST., CO-OPERATIVE HOSPITAL, KOZHIKODE.

ANNEXURE A3 THE CASH BILL DATED 03.11.2018 ISSUED FROM THE KARUNA DIAGNOSTICS, KALPETTA.

ANNEXURE A4 THE CASH BILL DATED 23.03.2018 ISSUED FROM THE KOZHIKODE DIST., CO-OPERATIVE HOSPITAL, KOZHIKODE.

ANNEXURE A5 THE CASH BILL DATED 25.06.2019 ISSUED FROM THE KOZHIKODE DIST., CO-OPERATIVE HOSPITAL, KOZHIKODE.

ANNEXURE A6 THE CASH BILL DATED 25.06.2019 ISSUED FROM THE KOZHIKODE DIST., CO-OPERATIVE HOSPITAL, KOZHIKODE.

ANNEXURE A7 THE CASH BILL DATED 11.12.2019 ISSUED FROM THE KOZHIKODE DIST., CO-OPERATIVE HOSPITAL, KOZHIKODE.

ANNEXURE A8 THE CASH BILL DATED 06.01.2020 ISSUED FROM THE KOZHIKODE DIST., CO-OPERATIVE HOSPITAL, KOZHIKODE.

ANNEXURE A9 THE CASH BILL DATED 09.01.2020 ISSUED FROM THE KOZHIKODE DIST., CO-OPERATIVE HOSPITAL, KOZHIKODE.

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ANNEXURE A10 THE CASH BILL DATED 09.01.2020 ISSUED FROM THE KOZHIKODE DIST., CO-OPERATIVE HOSPITAL, KOZHIKODE.

ANNEXURE A11 THE CASH BILL DATED 11.01.2020 ISSUED FROM THE KOZHIKODE DIST., CO-OPERATIVE HOSPITAL, KOZHIKODE.

ANNEXURE A12 THE CASH BILL (RECEIPT) DATED 11.01.2020 ISSUED FROM THE KOZHIKODE DIST., CO-

OPERATIVE HOSPITAL, KOZHIKODE.

ANNEXURE A13 THE CASH BILL DATED 11.01.2020 ISSUED FROM THE KOZHIKODE DIST., CO-OPERATIVE HOSPITAL, KOZHIKODE.

ANNEXURE A14 THE CASH BILL DATED 11.01.2020 ISSUED FROM THE KOZHIKODE DIST., CO-OPERATIVE HOSPITAL, KOZHIKODE.

ANNEXURE A15 THE CASH BILL DATED 12.01.2020 ISSUED FROM THE KOZHIKODE DIST., CO-OPERATIVE HOSPITAL, KOZHIKODE.

ANNEXURE A16 THE CASH BILL DATED 12.01.2020 ISSUED FROM THE KOZHIKODE DIST., CO-OPERATIVE HOSPITAL, KOZHIKODE.

ANNEXURE A17 THE CASH BILL DATED 13.01.2020 ISSUED FROM THE KOZHIKODE DIST., CO-OPERATIVE HOSPITAL, KOZHIKODE.

ANNEXURE A18 THE CASH BILL DATED 13.01.2020 ISSUED FROM THE KOZHIKODE DIST., CO-OPERATIVE HOSPITAL, KOZHIKODE.

ANNEXURE A19 THE CASH BILL DATED 14.01.2020 ISSUED FROM THE KOZHIKODE DIST., CO-OPERATIVE HOSPITAL, KOZHIKODE.

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ANNEXURE A20 THE CASH BILL DATED 14.01.2020 ISSUED FROM THE KOZHIKODE DIST., CO-OPERATIVE HOSPITAL, KOZHIKODE.

ANNEXURE A21 THE CASH BILL DATED 14.01.2020 ISSUED FROM THE KOZHIKODE DIST., CO-OPERATIVE HOSPITAL, KOZHIKODE.

ANNEXURE A22 THE CASH BILL DATED 28.01.2020 ISSUED FROM THE KOZHIKODE DIST., CO-OPERATIVE HOSPITAL, KOZHIKODE.

ANNEXURE A23 THE CASH BILL DATED 28.01.2020 ISSUED FROM THE KOZHIKODE DIST., CO-OPERATIVE HOSPITAL, KOZHIKODE.

ANNEXURE A24 THE OP CASE SHEET DATED 06.10.2016 ISSUED FROM KOZHIKODE DIST., CO-OPERATIVE HOSPITAL, KOZHIKODE.

ANNEXURE A25 THE REFERENCE DATED 11.01.2020 ISSUED FROM KOZHIKODE DIST., CO-OPERATIVE HOSPITAL, KOZHIKODE.