Abdul Rahiman v. P. G. Radhakrishnan, Shibu, and The Oriental Insurance Co. Ltd. (MACA No.2694/2009)

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` # **`FRIDAY, THE 14[TH] DAY OF OCTOBER 2022 / 22ND ASWINA, 1944`** # **`M.A.C.A. NO.2694 OF 2009`** ``` OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR) ``` ## **`APPELLANT/PETITIONER:`** ``` ABDUL RAHIMAN, S/O.IBRAHIMKUTTY, KOYIKKAL AYYATH PADIYITTATHIL HOUSE, P.O.PALLISSERIKKAL, SASTHAMKOTTA, QUILON DISTRICT, NOW RESIDING AT C/O.MOHAMMED KUNJU, S/O.POOKUNJU, PUNNAVILAYIL HOUSE, KOORKANCHERY P.O., THRISSUR. ``` ``` BY ADV SRI.P.V.CHANDRAMOHAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1P.G.RADHAKRISHNAN, PALLATHERY HOUSE, P.O.MATTATHURKUNNU, KODAKARA, THRISSUR. 2SHIBU, S/O.DEVASSYKUTTY PATTATHUPARAMBIL HOUSE, P.O.MANAKULANGARA, NEAR SAHRIDAYA ENGINEERING COLLEGE, KODAKARA, THRISSUR. 3THE ORIENTAL INSURANCE CO.LTD. BRANCH OFFICE: CITY HEIGHTS BUILDING, SOUTH JUNCTION, CHALAKUDY. BY ADV SRI.VPK.PANICKER ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.2694/2009 2 ## `JUDGMENT` ``` (Dated: 14[th] October, 2022) ``` The appellant is the petitioner in O.P.(M.V.) No.488 of 2003 on the file of the Motor Accidents Claims Tribunal, Thrissur. The claim was made under Section 166 of the Motor Vehicles Act. 2. Brief facts of the case are as follows: On 06.07.2002, while the petitioner was travelling by bus bearing Reg.No.KL-8 E-2517 driven by the 2[nd] respondent in a rash and negligent manner through Ernakulam – Alappuzha NH Road from north to south at an exorbitant speed and when it reached at Cherthala near SHG Hospital, it hit against the lorry bearing Reg.No.KL-2/D1621 coming from the opposite direction and as a result of which the appellant/petitioner sustained severe injuries. The accident happened due to the negligence of the 2[nd] MACA No.2694/2009 3 respondent, who was the driver of the bus at the time of the accident. The 1[st] respondent is the owner of the bus and the same was validly insured with the 3[rd] respondent, hence, the appellant claimed Rs.1,50,750/as compensation against the respondents. 3. The 3[rd] respondent alone had filed a written statement. The 1[st] and 2[nd] respondents remained ex parte. The 3[rd] respondent contended that the accident occurred not due to the rash and negligent driving of the bus by the 2[nd] respondent, but it happened due to the negligence of the heavy goods vehicle, hence the insurance company is in no way liable to pay the compensation to the petitioner. The compensation claimed under various heads are highly exorbitant and unreasonable. The Tribunal relied on Exts.A1 to A10 and awarded a total compensation of Rs.29,800/- with 7% interest from the date of petition till MACA No.2694/2009 4 realization. Aggrieved by the amount awarded by the Tribunal, this appeal is filed. 4. 5. The main contention raised by the counsel for the appellant is that the Tribunal erred in taking the income of the appellant as Rs.2,500/-, instead of his claim at the rate of Rs.5, 000/-. In the absence of any evidence to prove his income, the counsel relied on the decision reported in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236]**_ . In this case, the accident happened in the year 2002 and the monthly income to be taken in respect of a coolie who met with an accident in the year 2002 is Rs.3,500/-. The multiplier to be adopted is 17. I.A.No.1 of 2022 was filed before this court by the appellant with a prayer to send the appellant before the Medical Board attached to the MACA No.2694/2009 5 Medical College Hospital, Thrissur, and to assess the disability. Accordingly, an order was passed on 8.4.2022, and the Superintendent of Medical College Hospital, Thrissur, was directed to assess the disability of the appellant and forwarded the certificate. The Government Pleader has filed a memo with the disability certificate issued by the Medical Board attached to the Medical College Hospital, Thrissur. The Medical Board assessed and certified that the appellant has a permanent disability of 15%. Taking note of the disability certificate issued by the Medical Board, permanent disability is calculated by taking the income as Rs.3,500/- and the multiplier as 17 and the compensation can be worked out as 3,500 x 12 x 15 x 17 / 100 = 1,07,100/-. 6. As far as pain and suffering are concerned, the appellant has a stiff lumbo dorsal spine with gross MACA No.2694/2009 6 limitation of forward flexion of lumbar spine with paraspinal muscles spasm; nucleus pulposus syndrome with right side sciatica and chronic lumbo dorsal strain with pain and sitting up for prolonged period. Considering the nature of the injuries sustained, the Tribunal awarded a sum of Rs.12,000/- as compensation for pain and suffering. Taking into consideration the injuries sustained and the disability as opined by the Medical Board, I am inclined to fix the amount as Rs.25,000/- for pain and suffering. The Tribunal has awarded compensation for the loss of earnings for two months. When the income is taken as Rs.3,500/-, the loss of earning capacity for three months would be 3,500 x 3 = 10,500/-. 7. As far as loss of amenities is concerned, the Tribunal has awarded a sum of Rs.8,000/- only. The appellant has sustained compression fracture spine D12 MACA No.2694/2009 7 and contusion left paraspinal region, and taking into consideration of the 15% disability issued by the Medical Board, the loss of amenities is refixed at Rs.20,000/-. Accordingly, the following enhancements are made to the award passed by the Tribunal: |Sl.<br>No.|Head of Claim|Amt.<br>Awarded by<br>Tribunal<br>(Rs.)|Amt.<br>Awarded<br>in<br>appeal (Rs.)| |---|---|---|---| |1.|Loss of permanent<br>disability|…….|1,07,100/-| |2.|Loss of amenities|8,000/-|20,000/-| |3.|Pain and sufferings|12,000/-|25,000/-| |4.|Loss of earnings|5,000/-|10,500/-| ||Total|25,000 /-|1,62,600 /-| ||Amount enhanced is : 1,62,600 - 25,000<br>= 1,37,600/-||| In the result, the appeal is allowed. The appellant is entitled to the enhanced compensation of Rs. 1,37,600/(Rupees One lakh thirty seven thousand six hundred only) with MACA No.2694/2009 8 interest at the rate of 7% from the date of petition till realisation. If any amounts have already been paid, the same shall be granted set off. The appellant shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and the amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. The insurance company is also entitled to recover the enhanced amounts paid from respondents 1 and 2. Appeal allowed as above. ``` Sd/- ``` **BASANT BALAJI, JUDGE** ss