Abdul Naizam Maliyakkal v. P.M. Abdulla & Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 24[TH] DAY OF AUGUST 2021 / 2ND BHADRA, 1943** **MACA NO. 2726 OF 2009** **AGAINST THE AWARD DATED 22.05.2008 IN OP(MV0NO.2980/2001 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE.** ## **APPELLANT/PETITIONER:** **ABDUL NAIZAM MALIYAKKAL, S/O. MUHAMMED, SERCK MANSIONS, CHERUKULAM, P.O. MAKKADA, KOZHIKODE.** **BY ADV SRI.SUNNY MATHEW** ## **RESPONDENTS/RESPONDENTS:** **1 P.M.ABDULLA, S/O. SOOPY HAJI, 3/429, P.M. COTTAGE, GROUND FLOOR, NEAR ST.JOSEPH'S CTC HOSTEL, WEST NADAKKAVU, KOZHIKODE -11. 2 ORIENTAL INSURANCE CO. LTD., “SREENIDHI” BUILDING, NARAYANA NAGARAM, BADAGARA.** **BY ADV SRI.A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2726/2009 -:2:- Dated this the 24[th] day of August, 2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.2980/2001 on the file of the Principal Motor Accidents Claims Tribunal,Kozhikode. The respondents in the appeal were the respondents 1 and 3 before the Tribunal. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The concise facts in the claim petition, relevant for the determination of the appeal, are: On 21.04.2001, while the petitioner was riding his motorcycle, a car bearing registration No. KL-11G/400, driven by the second respondent hit against the motorcycle of the petitioner. The petitioner sustained serious injuries and was treated as an inpatient at the Medical Hospital, Calicut, Baby Memorial Hospital, Calicut and United Apollo Hospital, Coimbatore for the period from 21.04.2001 to 26.07.2001 in two different M.A.C.A.No.2726/2009 -:3:- spells. The petitioner sustained fractures of his femur , Acetabulam, inferior pubic ramees, fibula and anterior dislocation of his shoulder. The petitioner was working as a Sales Executive in Serck Services International, Sharjah, U. A.E. and was drawing a monthly salary equivalent to Rs.56,928/-. The car was owned by the first respondent and insured with the third respondent. The petitioner claimed a total compensation of Rs. 18,66,391/-; but limited the claim to Rs.10,00,000/-. 3. The respondent Nos.1 and 2 did not contest the proceedings. 4. The third respondent filed a written statement admitting that the car had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the petitioner. The third respondent prayed that the claim petition be dismissed. 5. The petitioner got himself examined as PW1 and marked Exts.A1 to A21 in evidence. The disability M.A.C.A.No.2726/2009 -:4:- certificate was marked as Ext.C1. The third respondent produced Ext.B1 insurance policy and marked it in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioner to realise an amount of Rs.2,68,818/- with interest at the rate of 7% per annum from 26.08.2001 till the date of realisation and cost of Rs.1,000/-. The third respondent-insurer was directed to pay the compensation amount. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Adv. Sri. Sunny Mathew, the learned counsel appearing for the appellant/petitioner and Adv. Sri. A.R. George, the learned counsel appearing for the second respondent in the appeal/insurer. 9. The question that emerges for consideration in this appeal is whether the quantum of compensation M.A.C.A.No.2726/2009 -:5:- awarded by the Tribunal is reasonable and just? 10. The Tribunal, after considering Ext.A3 charge-sheet and Ext.A4 order of the Judicial First Class Magistrate arrived at the conclusion that the accident occurred solely on account of the negligence of the driver of the car. It was also found that the car was validly insured with the second respondent/ insurer as per Ext.B1 insurance policy. Nevertheless, the Tribunal on the basis of the oral testimony of the petitioner, who was examined as PW1, that he had re-joined work in Sharjah in U.A.E. on 26.01.2002, declined to award any compensation for 'loss due to disability'. The Tribunal awarded the petitioner compensation for 'loss of amenities', 'pain and sufferings', 'loss of notional income', 'medical expenses', 'incidental charges' and 'transportation charges' totalling to the amount of Rs.2,68,818/- 11. Adv.Sri. Sunny Mathew contended that, despite the petitioner producing Exts.A18 and A21 M.A.C.A.No.2726/2009 -:6:- series medical bills totalling to an amount for Rs.3,72,900/-, the Tribunal only awarded an amount of Rs.1,62,238/- towards medical expenses, which is erroneous. Similarly, he contended that although the petitioner had claimed 'loss of earnings' for a period of five months at the rate of Rs.56,928/-, the Tribunal awarded only a meager amount of Rs.10,000/- towards 'loss of earnings'. Hence, he prayed that the aforesaid amounts may also be taken into account and the compensation be enhanced. 12. During the course of hearing, the learned counsel appearing for the appellant/petitioner and the learned counsel for the second respondent had verified Exts.A18 and A21 series medical bills and arrived at a consensus that a total amount of Rs.3,72,900/- was expended by the petitioner for his medical treatment. In the above circumstances, the finding of the Tribunal that the petitioner is entitled for Rs.1,62,238/- on the basis of Ext.A18 and A21, is erroneous and wrong. M.A.C.A.No.2726/2009 -:7:- Accordingly, I re-fix the 'medical expenses' for the treatment of the petitioner at Rs.3,72,900/- instead of Rs.1,62,238/- i.e., an enhancement by Rs.2,10,662/-. 13. The petitioner had produced Ext.A15 salary certificate, which was attested by the Indian Consulate in Dubai, U.A.E. as laid down by the Hon'ble Supreme Court in _**United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur and Others**_ [2020(3)KHC 760] and this Court in _**National Insurance Company Ltd. v. Ramla and Others**_ [2016(4) KHC 891]. Therefore, Ext.A15 salary certificate has to be accepted in evidence and acted upon. 14. As per Ext.A15, the petitioner's Managing Director has certified that he was drawing a salary of 3,500 Dirhams plus perks of Rs.750 Dirhams in the year. It was also stated that the petitioner was not paid the salary and perks for the period from 06.04.2001 to 26.01.2002, due to the accident that he sustained in M.A.C.A.No.2726/2009 -:8:- India. 15. It is settled law that only the net salary can be looked into for the purpose of arriving at the income of the claimant. Therefore, I fix the net income of the petitioner at 3,500 Dirhams. 16. Going by the foreign exchange currency conversion table available in the Google search engine, it is found that the exchange rate for U.A.E. Dirhams in the year 2001 was Rs.10/-. Using the said benchmark, I fix the petitioner's equivalent monthly salary at Rs.35,000/-. 17. In view of the claim made by the petitioner for 'loss of earnings' for the period from 21.04.2001 to 21.09.2001, i.e., for a period of five month, I fix his 'loss of earnings' at Rs.1,75,000/- 18. With respect to the other heads of claim namely; 'incidental charges', 'pain and sufferings', 'loss of amenities' and 'transportation charges, I find that the Tribunal has awarded reasonable and just M.A.C.A.No.2726/2009 -:9:- compensation. 19. On an overall re-appreciation of the pleadings and materials on record, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above i.e., a further amount of Rs.2,10,662/towards 'medical expenses' and Rs.1,65,000/- towards 'loss of earnings' for the period of five months from 21.04.2001 to 21.09.2001 i.e., a further enhancement of Rs.3,75,662/- In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **Rs.3,75,662/-** with interest on the enhanced compensation at the rate of 7% per annum from the date of petition till the date of deposit, after deducting a period of 218 days, that is the period of delay in preferring the appeal and as ordered by this Court on 16.11.2019 in C.M.Appl.No.3218 of 2009 and costs of Rs.2,500/-. The second respondent/insurer is ordered M.A.C.A.No.2726/2009 -:10:- to deposit the enhanced compensation awarded in this appeal before the Tribunal with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance with law. All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge