Abdul Basheer v. Athul Krishna and National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY, THE 04TH DAY OF JANUARY 2019 / 14TH POUSHA, 1940** **MACA.No. 1523 of 2015** **AGAINST THE AWARD IN OP(MV) 474/2014 of M.A.C.T.,KOZHIKODE** **DATED 24-10-2014** ## **APPELLANT/PETITIONER:** **ABDUL BASHEER AGED 55 YEARS** **S/O. AHAMMEDKUTTY, THIRUTHIMMAL HOUSE, NALLALAM POST, KOZHIKODE DISTRICT.** **BY ADVS. SRI.R.SUDHISH SMT.M.MANJU** ## **RESPONDENT/RESPONDENTS:** **1 ATHUL KRISHNA AGED 21 YEARS THONIPPURAKKAL HOUSE, ELATHUR POST, KOZHIKODE-673 303.** **2 NATIONAL INSURANCE COMPANY LIMITED NOOR COMPLEX, ARAYEDATHUPALAM, MAVOOR ROAD JUNCTION, KOZHIKODE-673 004.** **BY ADV. SRI.S.K.AJAY KUMAR SC FOR R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 1523 of 2015** **2** ## **JUDGMENT** This appeal is preferred by the petitioner, who met with a motor accident on 13.12.2013 and sustained serious injuries. The award passed by the Motor Accidents Claims Tribunal, Kozhikode (for short 'the Tribunal') in O.P(MV) No.474/2014, fixing a sum of Rs.2,90,000/- was awarded as compensation is under challenge in the appeal for the reason that the compensation found as payable under various heads are meagre and inadequate. The conspectus of the facts are stated hereunder: The petitioner while riding a scooter from Christian College Cross road to Wayanad Road, was hit by a motor cycle bearing registration No.KL-11-AR/8265 and thereby sustained serious injuries. He was rushed to Baby Memorial Hospital, Kozhikode and treated there as inpatient for several days. He had incurred huge expenditure towards his treatment. Therefore, alleging that the accident was occurred due to the rash and negligent riding of the motor cycle by its rider, who was also its registered owner and seeking for a compensation of Rs.5,00,000/- for the injuries sustained, the claim petition as above was preferred by the petitioner before the Tribunal and the award under **MACA.No. 1523 of 2015** **3** challenge was passed. The owner cum rider and insurer of the motor cycle were arrayed as respondents 1 and 2 in the claim petition. On summons being served, both respondents entered appearance and filed separate written statements before the Tribunal. According to the 1[st] respondent, negligence was not there on his part in riding the motor cycle and the accident was occurred solely due to the negligence on the part of the petitioner, who was riding the scooter at the relevant time. The age, occupation, income, the injuries sustained, the treatment undergone and the period for which treatment was availed, as claimed by the petitioner were disputed. The claim petition was sought to be dismissed for the reasons. Admittedly a policy was issued by them for the motor cycle involved in the accident. 2. Before the Tribunal, the petitioner had adduced documentary evidence as Exts.A1 to A12 series. The Tribunal, on appreciation of the entire evidence on record, found that the accident in question was occurred due to the rash and negligent riding of the motor cycle by its rider, the 1[st] respondent. The Tribunal has also arrived at a sum of Rs.2,90,000/- as compensation payable and directed the 2[nd] respondent, the insurer to deposit the same with interest at the rate of 8% per annum from the date of the petition, till the date of realisation, **MACA.No. 1523 of 2015** **4** in favour of the petitioner. Petitioner has found the quantum of compensation awarded as inadequate and unreasonable and therefore, has approached this Court in the captioned appeal, seeking for enhancement. 3. Smt.M.Manju, the learned counsel for the appellant has contended that the Tribunal is highly unjustified in fixing the monthly income of the petitioner as Rs.4,000/- for arriving at compensation under the head loss of earning. The further contention of the learned counsel was that the period for which the compensation for loss of earning was considered by the Tribunal being four months, is a lesser period. According to the learned counsel, the compensation awarded by the Tribunal under the head transportation expenses, extra nourishment, bystander expenses, pain and suffering and loss of amenities are also on the lower side and interference is called for on those counts. Lastly and finally it was contended by the learned counsel that though it is established from the documentary evidence on record that the petitioner had dis-figuration on his leg in view of the degloving injury sustained by him, the Tribunal failed to advert to that aspect and grant compensation for that. Accordingly, interference with the award under challenge is sought for the reasons stated as above. **MACA.No. 1523 of 2015** **5** 4. Sri.S.K.Ajay Kumar, the learned Standing Counsel on behalf of the 2[nd] respondent has contended that interference with the impugned award is uncalled for, since the Tribunal has awarded just and reasonable compensation after appreciating the entire evidence on record in its proper perspective. Accordingly, the appeal is sought to be dismissed. 5. In view of the rival contentions as above raised by the respective counsel, this Court had dealt with the documentary evidence on record elaborately to see whether the Tribunal went wrong in arriving at the compensation and awarding the same. The Tribunal has fixed Rs.4,000/- as the monthly income for arriving at compensation under the head loss of earning. In Ext.A7, a certificate allegedly issued by the employer of the petitioner, it was certified that he was getting a monthly income of Rs.10,000/- at the relevant time of accident and that he had availed leave without wages for a period from 1.1.2014 till 28.2.2014. The employer of the petitioner was not examined. As found from Ext.A7, the petitioner was associated with Woodlands Agencies, a private firm under the proprietorship of the signatory itself. But the nature of the job in which he was employed was not stated in Ext.A7. The Tribunal has correctly found that, the petitioner failed to prove Ext.A7 by examining **MACA.No. 1523 of 2015** **6** the person who had issued it. But the adoption of Rs.4,000/notionally as the monthly income is unjust in view of **Ramachandrappa v Royal Sundaram Alliance Insurance Co.Ltd. (AIR 2011 SC 2951),** where Rs.4,500/- was taken as the monthly income while computing compensation payable to a coolie worker, who met with a motor accident in the year 2004. The accident being occurred in the year 2013, there is every justification for this Court to fix Rs.6,000/- as the monthly income for the purpose of calculation of compensation for loss of earning and this Court do so. 6. It is disclosed from the impugned award that the petitioner had produced the accident register cum wound certificate and the discharge summaries, two in numbers and got those marked in evidence as Exts.A2, A6 and A11 respectively. A scrutiny of Exts.A6 and A11 would disclose that those are original and photocopy of one and the same document. It is disclosed from Ext.A2 that the petitioner was admitted at Baby Memorial Hospital, Kozhikode, following the accident with a fracture on lateral condyle of left tibia, degloving injury on left leg and an abrasion on right knee. It is disclosed from Exts.A6 and A11 that the petitioner was subjected to open reduction and internal fixation with plate at the fracture site of lateral condyle **MACA.No. 1523 of 2015** **7** of left tibia. As part of procedures, wound debridement, VAC application and split skin grafting were done. He was treated as in-patient in the hospital from 13.12.2013 till 07.01.2014. The compensation for loss of earning was arrived at by the Tribunal by taking only a period of four months, which according to the court is unreasonable and inadequate. Therefore, this Court is inclined to take a period of six months for calculation of compensation for loss of earning. When compensation is arrived at with factors as above, the petitioner will be entitled to get a sum of Rs.36,000/- (Rs.6000 x 6). When Rs.16,000/- already awarded by the Tribunal is adjusted against, a sum of Rs.20,000/- is payable additionally under the head loss of earning. 7. The Tribunal has awarded a sum of Rs.2,000/- as compensation towards transportation expenses. It is noticed from Ext.A2 that the petitioner was admitted at Baby Memorial Hospital on 13.12.2013 and discharged on 07.01.2014. At the time of discharge as disclosed from Ext.A6, he was advised review in the plastic surgery OPD on 11.01.2014 and review thereafter at Ortho OPD on 24.01.2014. A further review was also advised after three weeks of his visit of the hospital on 24.01.2014. A claim was raised while addressing argument in **MACA.No. 1523 of 2015** **8** the appeal that the implants laid were removed after passing the award under challenge, the discharge summary pertaining to that is not produced along with the appeal. A copy of that was handed over across the Bar to have a glance at. It is noticed that the petitioner was admitted at the hospital on 29.05.2015 and after removal of implants in a procedure held on 30.05.2015, he was discharged on 31.05.2015. A review was also directed on 12.06.2015. Indisputably he must have availed the service of a conveyance for attending the hospital. When viewed in that backdrop, this court finds justification in granting an additional amount of Rs.4,000/- as compensation towards transportation expenses and this Court do so. 8. Though a claim for modification in respect of the compensation awarded under the head bystander expenses was sought by the counsel, in view of the factum revealed that the Tribunal had considered a reasonable sum of Rs.250/- per day for a period of 26 days hospitalisation, this Court is declined to interfere with the same. It is noticed from the impugned award that under the head extra nourishment, the Tribunal has awarded only Rs.2,500/- by taking Rs.100/- per day. The accident having been occurred in the year 2013, this Court finds justification in granting Rs.200/- per day and when the **MACA.No. 1523 of 2015** **9** compensation is assessed with Rs.200/- per day, for 26 days, the amount will be Rs.5,200/-. Therefore, the petitioner will get an additional sum of Rs.2,700/- (5,200 - 2,500) under that head. It is disclosed from the impugned award that the Tribunal had the opportunity to see the petitioner. The Tribunal then had noticed a deep scar and disfiguration on his left leg. Despite noticing that the Tribunal failed to award any compensation under that head. Therefore, this Court is inclined to grant Rs.25,000/under the head disfiguration. Despite the evidence available to establish that the petitioner had sustained serious injuries in the motor accident, undergone several surgical procedures and prolonged treatment as inpatient, the Tribunal has awarded only a sum of Rs.30,000/- and Rs.25,000/- respectively under the heads pain and suffering and loss of amenities and enjoyments in life. Undoubtedly, the aforesaid sums granted by the Tribunal are not proportionate to the sufferings of the petitioner and this Court is inclined to modify the same by granting an additional sum of Rs.10,000/- and Rs.5,000/- respectively under the head pain and suffering and loss of amenities and enjoyments in life. 9. In the re-fixation as above, the petitioner will get an additional sum of **Rs.66,700/-** (Rupees Sixty six thousand and seven hundred only). The said amount will carry interest at the **MACA.No. 1523 of 2015** **10** rate of 8% per annum from the date of the petition till the date of realisation. The 2[nd] respondent, insurer shall deposit the additional sum with interest as directed above within a period of two months from the date of receipt of a copy of this judgment. The appeal is allowed in part on the above terms. The parties to the appeal shall bear their respective costs. **Sd/-** **MARY JOSEPH** **JUDGE** ab