Abdul Basheer K v Lalah; Dhanesh Thankachan; The New India Assurance Co. Ltd.

**MACA NO. 1302 OF 2012** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 11[TH] DAY OF NOVEMBER 2021 / 20TH KARTHIKA, 1943 MACA NO. 1302 OF 2012** **AGAINST THE JUDGMENT IN OP(MV) 756/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/PETITIONER:** ABDUL BASHEER.K AGED 28 YEARS S/O.ABOOBACKER, KARUVATTA HOUSE, P.O.KAITHAPOYIL, THAMARASSERY, KOZHIKODE. BY ADV SRI.K.MUHAMMED SALAHUDHEEN ## **RESPONDENTS/RESPONDENTS:** 1 LALAH 1101/33,KARUKAYIL, SANATHANAPURAM, P.O.LAPPUZHA, ALAPPUZHA 2 DHANESH THANKACHAN S/O. THANKACHAN, DHANESH BHAVAN, KARUMADY, AMBALAPPUZHA. 3 THE NEW INDIA ASSURANCE CO.LTD P.B. NO.74,M.O.WARD,NEAR TOWN HALL, ALAPPUZHA688001 BY ADV LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1302 OF 2012** **2** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.756/2009 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act,1988, claiming compensation on account of the injuries that he sustained in an accident on 5.3.2009. It was his case that, on the abovesaid day, while he was travelling along with his friend in a Tempo Trax Jeep bearing Reg.No.KL-17-D8655 (Jeep) from Thiruvananthapuram to Kozhikode, when they reached a place named 'Ambalapuzha', a Lorry bearing Reg.No.KBE – 7241, (Lorry), driven by the 2[nd] respondent in a rash and negligent manner, hit the jeep. The appellant had sustained serious injuries including fractures of the zygoma left, maxillary sinus, orbital **MACA NO. 1302 OF 2012** ## **3** wall left side, bifrontal hemorrhagic contusion, loss of teeth etc. He was treated as an inpatient at the Medical College Hospital, Alapppuzha and then at the Lakeshore Hospital, Ernakulam, for the period from 6.3.2009 to 6.4.2009. The appellant was a Salesman by profession in an Ayurvedic Company. He was earning a monthly income of Rs.6,000/-. The lorry was owned by the 1[st] respondent and insured with the 3[rd] respondent. Hence, the appellant claimed a compensation of Rs.15,98,000/- from the respondents, which was limited to Rs.6,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4. The 3[rd] respondent had filed a written statement admitting that the lorry had a valid insurance coverage. However, the 3[rd ] respondent disputed the age, income and occupation of the appellant. 5. The appellant produced and marked Exts.A1 to A12 in evidence. The disability certificate issued by the **MACA NO. 1302 OF 2012** ## **4** Medical Board was marked as Ext.C1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to realise from the 3[rd] respondent an amount of Rs. 4,09,940/- with interest and costs. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.Mohammad Salahudhin, the learned counsel appearing for the appellant/petitioner and Sri.Lal George, the learned counsel appearing for the 3rd respondent- insurer. 9. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 10. It is proved by Ext.A1 FIR and FIS that the accident occurred due to the negligence of the 2[nd] respondent – the driver of the lorry. Admittedly, the 1[st] **MACA NO. 1302 OF 2012** **5** respondent was the owner and the 3[rd] respondent was the insurer of the lorry. The 3[rd] respondent has not proved violation of any insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 11. The appellant had claimed that he was a Salesman in a private Ayurvedic company and was earning a monthly income of Rs.6,000/-. However, the Tribunal, for the want of materials, fixed the notional monthly income of the appellant at Rs.3,500/-. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 13. Following the yardstick in the afroecited decision and considering the fact that the accident occurred in the **MACA NO. 1302 OF 2012** **6** year 2009, I hold that the appellant's monthly notional income can safely be fixed at Rs.6,000/- as claimed in the claim petition. ## **Loss of earnings** 14. It is proved by Exts.A2 and A3 - Discharge summaries and Ext.C1 - Medical report, that the appellant had sustained serious injuries including several fractures. It is also on record that he was treated as an inpatient for a period of 30 days. Therefore, I hold that the appellant was indisposed for a period of three months. 15. In view of the re-fixation of the notional monthly income of the appellant at Rs.6,000/- per month, I re-fix the compensation for 'loss of earnings' at Rs.18,000/instead of Rs.10,500/- awarded by the Tribunal. ## **Disability** 16. As per Exts.A2 and A3 - Discharge summaries and Ext.C1 -Medical report, it is proved that the appellant had sustained a fracture of zygoma left, maxillary sinus **MACA NO. 1302 OF 2012** ## **7** fracture, orbital wall fracture left side, facial injuries, bifrontal hemorrhagic contusion, left temporal hemorrhagic contusion, loss of upper incisors left side, mild desiccation of inter vertebral disc with brain odema and traumatic optic neuropathy. He was treated at the Medical College Hospital, Alappuzha and the Lakeshore Hospital, Ernakulam. The appellant's disability has been assessed by a two member Medical Board of the Medical College Hospital, Calicut, who has certified that the appellant has a permanent disability of 30%. 17. In **Rajkumar v. Ajaykumar** [2011 (1) KLT 620 SC] , the Hon'ble Supreme Court has succinctly held that what needs to be looked into in a case of injury, is the functional disability of the injured-claimant. 18. In the instant case, the appellant was a Salesman by profession. Going by the serious nature of the injuries in Exts.A2 and A3 - Discharge summaries and Ext.C1 - Disability certificate, I have no hesitation to fix the appellant's functional disability at 30%. **MACA NO. 1302 OF 2012** **8** ## **Multiplier** 19. The appellant was aged 26 years at the time of the accident. In the light of the law laid down in **Sarla Verma & Otrs Vs. Delhi Transport Corporation** [(2009) 6 SCC 121], the relevant multiplier to be adopted is '17'. ## **Loss due to Disability** 20. Taking into account the above-mentioned factors, namely, the monthly income of the appellant at Rs.6,000/-, his functional disability at 30% and the multiplier at '17', I re-fix the compensation for ‘loss due to disability’ at Rs.3,67,200/-, instead of Rs.2,14,200/fixed by the Tribunal. ## **Bystander expenses** 21. The appellant was treated as an inpatient for a period of 30 days. The Tribunal has awarded only an amount of Rs.4,500/- towards 'bystander expenses', which according to me is on the lower side. 22. Considering the fact that the accident occurred **MACA NO. 1302 OF 2012** **9** in the year 2009, I hold that the bystander expenses has to be fixed at Rs.400/- per day for a period of 30 days, works out to Rs.12,000/-. ## **- Extra nourishment** 23. Even though the appellant had claimed an amount of Rs.75,000/- towards extra-nourishment expenses, the Tribunal has awarded only an amount of Rs.2,000/- which again according to me is too meagre. 24. Keeping in mind that the accident occurred in the year 2009, I award the the appellant an amount of Rs.200/- per day for a period of 30 days, as extra nourishment expenses, which amounts to Rs.6,000/-. ## **Loss of amenities** 25. The Tribunal has awarded an amount of Rs.6,000/- towards the’ loss of amenities’. Taking into account the serious nature of injuries that the appellant has sustained, that he has suffered a functional disability of 30%, that he was treated as an in-patient for a period of 30 days and that he was indisposed for a period of **MACA NO. 1302 OF 2012** **10** three months, I hold that the appellant is entitled for enhancement of compensation under the head ‘loss of amenities’ by a further amount of Rs.24,000/-, totalling to an amount of Rs.30,000/-. ## **Other heads of compensation** 26. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 27. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the aforecited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. **MACA NO. 1302 OF 2012** **11** **==> picture [432 x 435] intentionally omitted <==** **----- Start of picture text -----**<br> SI Head of claim Amount awarded Amounts<br>by the Tribunal (in modified and<br>.No rupees) recalculated by<br>this Court<br>1 Loss of earnings 10,500 18,000<br>2. Transport to hospital 4,000 4,000<br>3. Damage to clothing 1,000 1,000<br>4. Bystander expenses 4,500 12,000<br>5. Extra nourishment 2,000 6,000<br>6. Medical Expenses 1,47,740 1,47,740<br>7 Pain and suffering 20,000 20,000<br>8. Loss of amenities 6,000 30,000<br>9. Loss due to disability 2,14,200 3,67,200<br>Total 4,09,940 6,05,940<br>=========== =======<br>**----- End of picture text -----**<br> In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of **MACA NO. 1302 OF 2012** **12** Rs.1,96,000/- with interest at the rate of 7% per annum on the enhanced compensation from the date of petition till the date of deposit and a cost of Rs.20,000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the compensation amount to the appellant/petitioner in accordance with law. ma/12.11.2021 Sd/- **C.S.DIAS, JUDGE**