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2025 DIGILAW 1412 (KER)

Ayoob v. National Insurance Co. Ltd.

2025-05-23

SHOBA ANNAMMA EAPEN

body2025
JUDGMENT : Shoba Annamma Eapen, J. This appeal is filed by the appellant/claimant in O.P (MV) No.1138 of 2011 on the file of the Motor Accidents Claims Tribunal, Tirur. The respondents herein are the respondents before the tribunal. 2. According to the appellant/claimant, on 31.05.2011 at about 08.30 am, while the petitioner was riding the motorcycle bearing registration No.KL-10-R-3108, a mini lorry bearing registration No.KL-08-B-8694 driven by the 1 st respondent in a rash and negligent manner and in over speed hit on the motorcycle. As a result of the accident, the petitioner sustained serious injuries. The appellant approached the tribunal claiming a total compensation of Rs.13,18,000/-. 3. Before the tribunal, respondents 1 and 2 remained ex parte. The 3 rd respondent-insurer, admitting the policy, but disputing the quantum of compensation claimed. Before the tribunal, oral evidence of Pws 1 and 2 were examined and documentary evidence of Exts.A1 to A12 were marked on the side of the petitioner. Ext.C1 was marked as court exhibits. The tribunal, after analysing the pleadings and materials on record, awarded a sum of Rs.6,14,000/- as compensation under different heads with interest @9% per annum from the date of petition till realization with proportionate costs from respondent-insurers. Dissatisfied with the quantum of compensation awarded by the tribunal, the claimant has come up in appeal. 4. Heard the learned counsel for the appellant and the learned Standing Counsel for the respondent insurance company. 5. The learned counsel for the appellant claims enhancement mainly under the following heads :- Notional income :- The learned counsel for the appellant submitted that though an amount of Rs.9,000/- was claimed as the monthly income of the appellant who was a salesman, the tribunal has taken only an amount of Rs.5,000/- as his monthly income. The learned counsel for the appellant further submitted that Ext.A9 was produced to prove the salary of the appellant. It is further submitted that the employer, who was issued the salary certificate was also examined as PW2. But, the tribunal did not accept the evidence of PW2. I do not find any reason to disbelieve the evidence of PW2. Since Ext.A9 salary certificate was proved through PW2, I am inclined to refix the monthly income of the appellant at Rs.9,000/-. Loss of earnings :- Since the notional monthly income is refixed at Rs.9,000/-, the total compensation payable under the head is recalculated thus: Rs.54,000/- (9,000x6). I do not find any reason to disbelieve the evidence of PW2. Since Ext.A9 salary certificate was proved through PW2, I am inclined to refix the monthly income of the appellant at Rs.9,000/-. Loss of earnings :- Since the notional monthly income is refixed at Rs.9,000/-, the total compensation payable under the head is recalculated thus: Rs.54,000/- (9,000x6). The tribunal has already awarded an amount of Rs.30,000/- under the said head. Thus, there will be an additional amount of Rs.24,000/- under the head loss of earnings. Bystander expenses :- The tribunal has taken only an amount of less than Rs.200/- per day for a period of 38 days. Considering the fact that the accident occurred in the year 2011, I find that an amount Rs.300/- per day would be just and reasonable, thus the total compensation will come to Rs.11,400/-. The tribunal has already awarded an amount of Rs.7,500/- under the said head. Thus, there will be an additional amount of Rs.3,900/- under the head bystander expenses. Pain and sufferings :- The learned counsel for the appellant submitted that an amount of Rs.50,000/- was claimed towards the head pain and sufferings, the tribunal has awarded only an amount of Rs.20,000/-. Considering the nature of injuries sustained as well as the age of the appellant, I find that a total amount of Rs.40,000/- can be awarded under the head. Thus, there will be an additional amount of Rs.20,000/ - under the afore head. Loss of amenities :- The learned counsel for the appellant submitted that an amount of Rs.30,000/- was claimed towards the head loss of amenities, the tribunal has awarded only an amount of Rs.10,000/-. Considering the nature of injuries sustained as well as the age of the appellant, I find that a total amount of Rs.30,000/- can be awarded under the head. Thus, there will be an additional amount of Rs.20,000/ - under the afore head. Extra nourishment :- The learned counsel for the appellant submitted that though an amount of Rs.3,000/- was claimed towards the head loss of amenities, the tribunal has awarded only an amount of Rs.2,000/- towards the said head. Considering the nature of injuries sustained, I am inclined to grant a total compensation of Rs.3,000/- under the said head. Thus, there will be an additional amount of Rs.1,000/- under the said head. Considering the nature of injuries sustained, I am inclined to grant a total compensation of Rs.3,000/- under the said head. Thus, there will be an additional amount of Rs.1,000/- under the said head. Compensation for disability/earning capacity :- The learned counsel for the appellant submits that the appellant was aged 35 years at the time of accident, the tribunal has taken the multiplier as ‘15’ instead of ‘16’. Going by the judgment in National Insurance Co. Ltd. v. Pranay Sethi & Ors [ 2017 (4) KLT 662 (SC)], the correct multiplier to be adopted is ‘16’. Since the monthly income is refixed at Rs.9,000/-, the compensation payable under the head is recalculated thus: Rs.6,91,200/- (9,000x12x16x40/100). The tribunal has already awarded an amount of Rs.3,60,000/- under the head. Thus, there will be an additional amount of Rs.3,31,200/- under the head compensation for permanent disability. 6. Though the appellant claimed enhancement of compensation under the other heads, on a perusal of the award and records available, I am not inclined to interfere with the compensation awarded by the tribunal under other heads since it appears to be just and reasonable. 7. The learned counsel for the insurance company submitted that the tribunal found 25% contributory negligence on the part of the appellant. On a perusal of the award, it is seen that the appellant sustained serious injuries since he did not wear a helmet. It is true that the charge sheet was against the lorry driver; in this case, the injuries sustained were to the head of the appellant. Therefore, I do not find any reason to interfere with the finding of the tribunal regarding 25% contributory negligence on the part of the appellant. 8. Thus, the impugned award of the tribunal is modified as follows:- Sl. Therefore, I do not find any reason to interfere with the finding of the tribunal regarding 25% contributory negligence on the part of the appellant. 8. Thus, the impugned award of the tribunal is modified as follows:- Sl. No Head of Claim Amount claimed Amount awarded by the tribunal Modified in appeal Total compensation 1 Loss of earnings 1,08,000 30,000 24,000 54,000 2 Medical and miscellaneous expenses 2,00,000 1,72,000 (not modified) 1,72,000 3 Future treatment 1,00,000 10,000 (not modified) 10,000 4 Bystander expenses 24,000 7,500 3,900 11,400 5 Transportation expenses 2,000 2,000 (not modified) 2,000 6 Extra nourishment 3,000 2,000 1,000 3,000 7 Damage to clothing 1,000 500 (not modified) 500 8 Pain and sufferings 50,000 20,000 20,000 40,000 9 Compensation towards permanent disability 7,00,000 3,60,000 3,31,200 6,91,200 10 Compensation for loss of amenities 30,000 10,000 20,000 30,000 11 Loss of earning power 1,00,000 Nil Nil Nil TOTAL 13,18,000 6,14,000 4,00,100 3,00,075 (i.e.(-)25% of 4,00,100) 10,14,100 9,14,075 Accordingly, the appeal is allowed in part and the appellant/claimant is awarded an additional compensation of Rs.3,00,075/- (Rupees three lakhs and seventy five only) being 25% of the amount enhanced by this court, over and above the compensation awarded by the tribunal with interest @9% per annum from the date of petition till realization and proportionate costs. The respondent 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, ADHAAR 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 appellant at the earliest in accordance with law.