Abdul Latheef v. Rahul Ramachandran and Ashraf and National Insurance Co. Ltd.

MACA.1929/ 22 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 4[TH] DAY OF JANUARY 2024 / 14TH POUSHA, 1945_ ## _MACA NO. 1929 OF 2022_ _AGAINST THE ORDER/JUDGMENT OPMV 552/2017 OF ADDITIONAL DISTRICT COURT-II & IST ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,_ ## _MAVELIKKARA_ ## _APPELLANT/S:_ _ABDUL LATHEEF, AGED 64 YEARS, S/O.IBRAHIM PILLAI, VALIYATH VEEDU, KRISHNAPURAM P.O, KRISHNAPURAM VILLAGE, KARTHIKAPPALLY TALUK, PIN – 690 516._ _BY ADV.JOSEPH M.P._ ## _RESPONDENTS/RESPONDENTS:_ - _1 RAHUL RAMACHANDRAN, (DRIVER), S/O.RAMACHANDRAN, MULAVELIL VADAKKATHIL, KRISHNAPURAM VILLAGE, KRISHNAPURAM PANCHAYATH, PIN – 690 502._ - _2 ASHRAF(OWNER), S/O. ABDUL REHMANA KUNJU, PLAHTARAPUTHENVEEDU, KRISHNAPURAM P.O, KAYAMKULAM, PIN – 690 502._ - _3 NATIONAL INSURANCE CO.LTD., REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, KAYAMKULAM, PIN – 690 502._ _BY ADVS.SRI.LAL GEORGE, S C, NATIONAL INSURANCE COMPANY LIMITED P.A.REZIYA_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.1929/ 22 2 ## **JUDGMENT** The appellant was the petitioner in O.P.(MV).No.552 of 2017 on the file of the Motor Accidents Claims Tribunal, Mavelikara. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 08.06.2016. 2. The accident occurred, when the motorcycle ridden by him was hit by a scooter bearing registration No.KL-30 B 789 ridden by the 1[st] respondent in a rash and negligent manner. The said scooter was owned by the 2[nd] respondent and was insured with the 3[rd] respondent. In the claim petition he claimed that he was a contractor aged 60 years with a monthly income of Rs.20,000/-. He sustained permanent disablement due to the injuries in the accident. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent Insurance Company alone contested the matter by filing a written statement wherein they admitted the coverage of the policy. However, they disputed the liability on various grounds. The negligence, as well as the quantum of compensation, were also disputed. MACA.1929/ 22 3 4. The evidence in this case consists of oral evidence of PW1 and PW2 and as documentary evidence, Exts.A1 to A11 were marked from the side of the appellant. The disability certificate issued by the Medical Board was marked as Ext.X1. No evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the rider of the scooter, and being the insurer, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.2,94,042/- and the said amount was directed to be deposited by the 3[rd] respondent with interest at the rate of 8% per annum from the date of petition till realization with proportionate cost. This appeal is submitted by the appellant seeking enhancement of the compensation. 5. Heard Sri.Joseph M.P., learned counsel for the appellant and Sri.P.A.Raziya, learned counsel for the Insurance Company. 6. The dispute in this appeal pertains to the quantum of compensation alone. The main contest is with respect to the amount awarded under the head of disability and consequential loss of earning capacity of the appellant. As per the Ext.X1 certificate, the Medical Board certified the extent of disability of the appellant as 23%, but the Tribunal scaled down the same to 15%. The learned MACA.1929/ 22 4 counsel for the appellant contends that the same was not at all proper. The Tribunal reduced the percentage of disability certified in Ext.X1 mainly on the ground that, according to the Tribunal, the same was on the higher side. However, as the said certificate has been issued by a competent medical board constituted by the proper authority, consists of a panel of expert doctors, I am of the view that the Tribunal should not have sat in appeal over the percentage of disability certified therein. Of course, the Tribunal could have justified in interfering in the percentage of disability certified therein if the assessment made therein suffers from any gross illegality or unreasonableness. However, no such discrepancies are highlighted in the case on hand, warranting interference by scaling down the percentage of disability certified in Ext.X1. Therefore, I am of the view that the percentage of disability as certified in Ext.X1 has to be accepted and it is ordered accordingly. 7. The next element for determining compensation for disability and loss of earning power is the monthly income. Even though, in the claim petition the appellant claimed that, he was a contractor, during evidence, PW2 was examined as his employer, who stated that the appellant was a supervisor employed by him with a monthly income of Rs.20,000. The learned counsel for the MACA.1929/ 22 5 appellant points out that, to substantiate his monthly income, the appellant produced Ext.A8 salary certificate, and to prove the same, PW2, the employer was examined. However, the Tribunal observed that, during the course of the examination, PW1 stated that his contractor licence was issued for two years and the same was valid for the years 2006-2007 only. Therefore, it was found that as on the date of accident, PW1 was not a licensed contractor and therefore, Ext.A8 was not accepted. However, PW2 specifically deposed that he was working as a contractor and he employed the appellant with a monthly income of Rs.22,000/-. The said aspect cannot be discarded merely because he was not a licensed contractor. However, in the absence of any other materials, the monthly income as shown in the said certificate as such cannot be accepted. At the same time, it is also to be held that the monthly income of Rs.8,500/- fixed by the Tribunal is also on the lower side. Evidently, the appellant was working as a supervisor under PW2, which is established from the materials placed on record. The accident occurred in the year 2016. When the method of computation of monthly income evolved on the basis of the principles laid down by the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance co. Ltd. [2011 (13) SCC 236]** and **Syed Sadiq v.** MACA.1929/ 22 6 **Divisional Manager, United India Insurance Co.[2014 (2) SCC 735]** is taken into consideration, the monthly income of an ordinary worker has to be fixed as Rs.4,500/- in respect of an accident that occurred in the year 2004. The usual method adopted to determine the monthly income for the subsequent years is adding Rs.500/- each for every year. When such a method is adopted, the monthly income of an ordinary worker can be fixed as Rs.10,500/- for the year 2016, even without any evidence. Here, in this case, there is some evidence indicating the nature of avocation and monthly income of the appellant in the form of Ext.A8 and deposition of PW2. Even though the monthly income as shown in Ext.A8 as such cannot be accepted, considering the standards that was prevailing in the year 2016, a slightly higher monthly income than usually taken in respect of an ordinary worker calculated by adopting the method of computation as per **Ramachandrappa (supra)** and **Syed Sadiq (supra)** , can be accepted. In the facts and circumstances of the case, I deem it appropriate to fix it as Rs.14,000/- taking into account the nature of employment, the age of the appellant and the evidence of PW1 and PW2. Thus, while re-assessing the compensation for disability and consequential loss of earning MACA.1929/ 22 7 capacity with the above-revised criteria, the compensation would come to Rs.2,70,480/-(14000 x 12 x 7 x 23/100) . The Tribunal has already awarded a compensation of Rs.1,07,100/- under the said head. Thus, the additional compensation for loss of disability and loss of earning capacity would come to Rs.1,63,380/-. 8. When moving on to the other heads, it is seen that compensation under the head of loss of pain and suffering and loss of amenities are on the lower side. The amount awarded towards the loss of amenities was only Rs.5,000/-, which is grossly inadequate. In the disability certificate, it is noted that the appellant sustained injuries of closed comminuted fracture of both bones, abrasion on right leg and deformity, contusion of right elbow, contusion of right ankle, and he was hospitalized for a period of 8 days. The disability which was certified by the Medical Board is 23%. When taking note of the aforesaid aspects, I deem it appropriate to fix the compensation for loss of amenities as Rs.40,000/- and thus, the additional compensation under this head would be Rs.35,000/-. Similarly, taking note of the nature of injuries sustained and its consequences including the period of hospitalization, I deem it appropriate to grant a further sum of Rs.20,000/- towards pain and sufferings. While making the said assessment, I have also considered MACA.1929/ 22 8 the fact that this is an accident that occurred in the year 2016, and therefore, standards that prevailed at the relevant time should be taken into account. Thus, the total compensation is determined as Rs.2,18,380/- (1,63,380+35,000+20000). In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 27.01.2022 in O.P.(MV).No.552 of 2017 passed by the Motor Accidents Claims Tribunal, Mavelikara is hereby modified by granting additional compensation of Rs.2,18,380/- (Rupees two lakh eighteen thousand three hundred and eighty only) and the 3[rd] respondent Insurance Company is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal with proportionate costs within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/6.1.24