Abdul Rahiman v. A.S. Joseph and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 11[TH] DAY OF FEBRUARY 2022 / 22ND MAGHA, 1943** ## **MACA NO. 1196 OF 2011** **AGAINST THE AWARD DATED 29.09.2010 IN OPMV 1/2006 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT/PETITIONER:** ABDUL RAHIMAN AGED 43 YEARS, S/O ABDULKADER, CHEKKIDI (H), PUDUKKODE,, PALAKKAD. BY ADVS. SRI.NAGARAJ NARAYANAN SRI.BENOJ C AUGUSTIN SRI.DEEPU S.NAIR SMT.J.KASTHURI SRI.RAFEEK. V.K. SRI.SAIJO HASSAN SRI.SEBIN THOMAS ## **RESPONDENTS/RESPONDENTS:** 1 A.S.JOSEPH, ALAPPAT (H) MANNMANGALAM, THRISSUR, (R.C OWNER OF JEEP, KLL/3895). 2 RAJENDRAN S/O.UNNIKRISHNAN AGED 43 YEARS, KUNNATHUKALAM VEEDU, VENNUR,, THRISSUR. (DRIVER OF JEEP KLL/3895). 3 ORIENTAL INSURANCE COMPANY LIMITED KPN SHOPPING COMPLEX, SHORNUR ROAD,, THRISSUR. (INSURER OF JEEP KLL/3895). BY ADVS. V.M.KRISHNAKUMAR LATHA SUSAN CHERIAN P.R.REENA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No.1196-2011 ## **Dated this the 11[th] day of February, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1/2006 on the file of the Motor Accidents Claims Tribunal, Palakkad. 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 sustained to him in an accident on 24.04.2005. It was his case that, on the aforesaid date, while he was travelling pillion on a motorcycle bearing registration No. KL 9/L 4157 through the Pudukkode-Vennur road, a jeep bearing registration No.KLL 3895, driven by the second respondent in a negligent manner, hit the motorcycle. The appellant and the rider of the motorcycle fell down and sustained injuries. The appellant was treated as an 3 MACA No.1196-2011 inpatient for a period of 30 days in two spells at the Medical College, Hospital, Thrissur. The jeep was owned by the first respondent and insured with the third respondent. The appellant was a business man and earning a monthly income of Rs.5000/-. Hence the appellant claimed a compensation of Rs.2,31,000/-, which claim was limited to Rs.2,00,000/-. 3. The rider of the motorcycle had filed O.P(M.V) No.1256/2005 before the same Tribunal, against the respondents, seeking compensation. 4. The first respondent did not contest the two claim petitions. 5. The second respondent had filed separate written statements in the two claim petitions contending that the accident occurred due to the negligence of the rider of the motorcycle. It was also stated that the compensation claimed was excessive. 6. The third respondent had filed separate written statements in the two claim petitions reiterating the 4 MACA No.1196-2011 same contentions of the second respondent. The third respondent also disputed the age, income and occupation of the petitioners in the two claim petitions. The third respondent further stated that the second respondent was not holding a valid driving license to drive a commercial vehicle. Hence, the third respondent prayed for exoneration of its liability. 7. The Tribunal consolidated and jointly tried the two claim petitions. 8. The petitioners in the two claim petitions had produced and marked Exhibits A1 to A10 in evidence. The respondents did not let in any evidence. 9. The Tribunal, by its common award, allowed the captioned claim petition, by permitting the appellant to recover from the third respondent an amount of Rs.46,500/- with interest. 10. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 11. Heard Sri. Nagaraj Narayanan, the learned 5 MACA No.1196-2011 counsel appearing for the appellant/petitioner and Smt.Latha Susan Cherian, the learned counsel appearing for the third respondent/insurer. 12. The point that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 13. Exhibit A3 charge sheet filed by the Pazhayannur police in Crime No.114/2005, proves that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the jeep. The respondents have not let in any evidence to discredit Exhibit A3 the charge sheet. The third respondent had also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. 6 MACA No.1196-2011 ## **Income** 14. The appellant had claimed that he was a business man by profession and earning monthly income of Rs.5000/-. For the want of material, the Tribunal fixed the notional monthly income of the appellant at Rs.2500/-. 15. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 16. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2005, I fix the notional monthly income of the appellant at Rs.5000/-. ## **Loss of earnings** 17. It is proved as per Exhibits A9 wound certificate and A8 disability certificate, that the appellant had 7 MACA No.1196-2011 suffered Type III B compound fracture of both bones of his right leg. He was treated as an inpatient for a period of 30 days in two spells spanning from 24.04.2005 to 21.06.2005. Thus, he was indisposed for a period of four months. 18. In view of the re-fixation of the notional monthly income of the appellant at Rs.5000/-, I award him an amount of Rs.20,000/- under the head ‘loss of earnings’. ## **Disability** 19. The appellant had produced Exhibit A10 disability certificate issued by the Assistant Professor of Orthopedic, Medical College Hospital, Thrissur. The Doctor in Exhibit A10 found that the appellant has a malunited fracture of the middle third of the right tibia with 15 degree outward deviation, malunited fracture of the right fibula with 10% backward angulation and valgus deformity, which led the appellant to have 1.5 cm shortening of the right leg. It is also certified that the appellant has difficulty in squatting, climbing stairs and 8 MACA No.1196-2011 has wasting of the right leg 5cm. Accordingly, the Doctor has assessed the appellant’s functional disability at 25%. De hors, Exhibit A10, the Tribunal has fixed the permanent disability of the appellant at 5% without any reason whatsoever. 20. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable supreme Court has categorically held that in an injury claim, if the Tribunal is dissatisfied with the disability certificate produced before it, it is imperative for the Tribunal to refer the injured-claimant to a Medical Board. It is also held that if the disability certificate is produced and marked in evidence with the consent of the parties, the same can be accepted in evidence. Similarly, it is further held that what needs to be looked into in a case of injury, is the functional disability of the injured-claimant. 21. In the instant case, on an appreciation of the Exhibit A10, I find that the appellant has the above mentioned disabilities, which has been assessed at 25%. 9 MACA No.1196-2011 Taking note of the injuries and disability and also the avocation of the appellant, I fix his functional disability at 25%. ## **Multiplier** 22. The appellant was aged 43 years at the time of the accident. In the light of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘14’. ## **Loss due to disability** 23. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.5000/-, his functional disability at 25% and the multiplier at 14, I award the appellant an amount of Rs.2,10,000/- towards ‘loss due to disability’, instead of 19,500/- awarded by the Tribunal. ## **- By stander expenses and extra nourishment** 24. The Tribunal has awarded only a meagre 10 MACA No.1196-2011 amount of Rs.1000/- under the head ‘extra nourishment’. 25. It is on record as per Exhibits A8 and A9 that the appellant was treated as an inpatient for a period of 30 days in two spells at the Medical College Hospital, Thrissur. Therefore, I award him an amount of Rs.300/per day for a period of 30 days towards ‘by-stander expenses’ which works out to Rs.9000/- and Rs.150/- per day for a period of 30 days towards ‘extra nourishment’ which works out to Rs.4500/-. ## **Loss of amenities** 26. The Tribunal has awarded the appellant an amount of Rs.7000/- under the head ‘loss of amenities’. 27. On a consideration of the fact that the appellant was treated as an inpatient for a period of 30 days that he was indisposed for a period of four months and that he has suffered a functional disability of 25%, I award him a further amount of Rs.13,000/- under the head ‘loss of amenities’. 11 MACA No.1196-2011 28. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 29. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited 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. |SI.<br>No|Head of claim|Amount<br>awarded (in<br>rupees)|Amounts<br>modifed and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings|0|20000| |2|Transportation|1500|1500| |3|Clothing|500|500| |4|By stander expenses|0|9000| |5|Extra -nourishment|1000|4500| |6|Medical expenses|1250|1250| |7|Pain and suferings|17000|17000| |8|Loss of amenities|7000|20000| |9|Loss due to disability|19500|210000| ||Total|46500|283750| ## 30. Even though the appellant had claimed only an amount of Rs.2,00,000/- as compensation, I have 12 MACA No.1196-2011 awarded him more compensation in view of the disability certified in Exhibit A10 at 25%. The said course is permissible in view of the law laid down in **Nagappa v. Gurudayal Singh [2003 (1) KLT 115 SC] and Rajesh v. Rajbir Singh [2013 (3) KLT 89 SC]** , In the result, the appeal is allowed, by enhancing the compensation by an amount of Rs.2,37,250/- with interest at the rate of 6% per annum from the date of petition till the date of deposit, after deducting interest for the period from 01.08.2008 till 27.10.2021 i.e., the period during which the appeal was pending but the appellant had not taken steps to effect service of notice on the respondents and as ordered by this Court on 14.09.2021. The third respondent is ordered to deposit the enhanced compensation with interest for the period as ordered above and a cost of Rs.5000/before the Tribunal within sixty days from the date of 13 MACA No.1196-2011 receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** rmm11/02/2022