Abdul Salam S/o Alavi v. Anil Kumar S/o P.K.G. Nambiar; Tata AIG General Insurance Company Ltd.; Prakash; K.S. Sivakumar Rao; National Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 29[TH] DAY OF MARCH 2023 / 8TH CHAITHRA,** **1945** **MACA NO. 382 OF 2012** **AGAINST THE AWARD DATED 20.06.2011 IN IN OPMV 782/2007** **OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANT/PETITIONER:** **ABDUL SALAM S/O.ALAVI, PATTIKKADAN HOUSE, KUTTATHI, P.O.KARUVARAKUNDU, MALAPPURAM DISTRICT.** **BY ADV SRI.P.VENUGOPAL (1086/92)** ## **RESPONDENTS/RESPONDENTS:** - **1 ANIL KUMAR S/O.P.K.G.NAMBIAR, 38/2, I CROSS CHURCH STREET, MARAPPA,THOTTA, J.C.NAGAR P.O., BANGALORE, KARNATAKA STATE, PIN-560006.** - **2 TATA AIG GENERAL INSURANCE COMPANY LTD. MILLERS ROAD, BANGALORE, KARNATAKA, PIN-560052.** - **3 PRAKASH** - **S/O.SIVAKUMAR, MASTHIKKATTU HOUSE, VASA NAGARA P.O., SHIVAMUKAR DISTRICT, KARNATAKA-560016.** - **4 K.S.SIVAKUMAR RAO S/O.SREENIVAS, SRI GANESH BAREKKATTY ROAD, KUNDAPURA P.O., UDUPPI DISTRICT, KARNATAKA, PIN:576201.** - **5 NATIONAL INSURANCE COMPANY LIMITED FIRST FLOOR, GANESH MAHAL MUNICIPAL, MAIN ROAD, KUNDAPURA P.O., UDUPPI DISTRICT, KARNATAKA, PIN 576201.** **BY ADVS.** **SRI.R.AJITH KUMAR 12884 SRI.RAJAN P.KALIYATH** ## **SRI.TAPAS VARMA-SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 382 OF 2012** **2** ## **JUDGMENT** The appellant was riding a motor cycle as a pillion on 03.09.2006, when the offending car, driven in a rash and negligent manner, hit it from behind – he thus being flung off onto the road and then to be run over by a lorry travelling in the opposite direction. He suffered very grievous injuries, requiring amputation of one of his legs, thus being subjected to long treatment, including as an inpatient for 11 days. He, thereupon, filed OP(MV)No.782/2007 before the Motor Accidents Claims Tribunal, Manjery (the 'Tribunal' for short), seeking compensation of an amount of Rs.4,00,000/-, which, in fact, has been allowed to a sum of Rs.5,22,562/-. He, nevertheless, impugns the said Award on various grounds, including that a reduction of 25% from the amount computed, holding that the rider of the motorcycle was also contributorily negligent for the accident, is illegal and unlawful. 2. The learned counsel for the appellant, asserted that the appellant was working as a daily wage labourer at the time of the accident and was earning Rs.6,000/- per month. The learned counsel argued that, however, the learned Tribunal did not accept the said figure and then went on to fix his notional income, as **MACA NO. 382 OF 2012** **3** being Rs.3,000/-; and to consequently fix the compensation low under the head “disability”. The learned counsel argued that when Ext.X1 – Report of the Medical Board renders it indubitable that her client had suffered 65% permanent disability, the learned Tribunal ought to have granted much higher figures under the heads “Extra Nourishment”, “Pain and Suffering”, “Loss of Amenities”, “Loss of Earnings” and “Future Treatment”. 3. The learned counsel for the appellant, thereafter, pointed out that the findings of the learned Tribunal, that rider of the motorcycle was also contributorily negligent for the accident, defies logic and is contrary to the real factual scenario. The learned counsel contended that when the Police reports are to the effect that the offending car hit the motorcycle from behind, no liability could have been fixed on its rider, as has been done now. The learned counsel concluded, pointing out that Annexure A – Charge Sheet of the police, in C.C.No.357/2006, has been placed on record, before this Court, along with IA No.1/2019, which fixes the responsibility for the accident on the rider of the car and that of the lorry in equal proportion, which is manifest from the fact that there are two charges therein, namely, charge A and charge B – one against the former and the second against the latter. The learned counsel for the appellant, thus prayed that this appeal be **MACA NO. 382 OF 2012** **4** allowed, vacating the findings against the rider of the motorcycle and granting enhancement under the afore heads, to a substantial extent. 4. Sri. Rajan P. Kaliyath - learned Standing Counsel appearing for the 5[th] respondent - Insurance Company, submitted that since the accident occurred in the year 2006, the computations adopted by the Tribunal are without error and argued that, in any event, when the income or avocation of the appellant stands without any proof, the learned Tribunal could have taken only a notional income as has been correctly done. 5. However, to a pointed question from this Court Sri. Rajan P. Kaliyath conceded that Annexure-A Charge Sheet shows that the accident was caused by the drivers of the car and that of the lorry, without any contribution from the rider of the motor cycle; and hence, left it to this court to take an apposite decision in this regard. He pointed out that the controversy arose with respect to the contribution towards accident by the rider of the motorcycle only because the appellant had not produced the Charge Sheet before the learned Tribunal at the right time. 6. Sri.Tapas Varma – learned Standing Counsel appearing for the 2[nd] respondent - Insurance Company, adopted the afore submissions of Sri. Rajan P. Kaliyath; adding to it, saying that the **MACA NO. 382 OF 2012** **5** compensation awarded by the Tribunal under the head 'Disfigurement' was impermissible, since 'Loss of Amenities' had already been compensated. He thus prays that this appeal be dismissed. 7. I have considered the afore submissions and have also gone through the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that it can be acted upon by this Court without dispute. 8. It is without doubt and without contest, that the accident happened in the year 2006. The appellant claimed that he was a 'Daily Wage' employee, earning Rs.6,000/- per month. However, there is no evidence to establish this; and obviously, the Tribunal could have only then reckoned his notional income. However, while doing so, it ought to have then proceeded as per the declarations in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC** **236],** which mandates that, even in the case of a 'coolie', or a person with an unascertainable income, in the year 2006 – when the accident occurred – a minimum figure, of Rs.5,500/- ought to have been reckoned. I propose to adopt that figure in substitution of the one reckoned by the Tribunal as notional income. **MACA NO. 382 OF 2012** **6** 9. That said, the appellant was a mere 27 years in age when the accident took place; and obviously, therefore, when his percentile disability has been certified by Ext.X1 to be 65%, he is entitled to have 'Future Prospects' added to his income at the rate of 40%. I am guided in this regard by the judgment of the Honourable Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662].** 10. That said, the medical evidence on record, particularly Ext.A2 – Wound Certificate, establishes that the accident left the appellant with a “ _crush injury on the left foot lower and middle third_ .” (sic). The treatment records, especially Ext.A3 - Discharge Card, record that he had suffered amputation of his limb below the knee and that he was hospitalised for 11 days. These are admitted. 11. The trauma of a person, who was a mere 27 years of age, in having his leg amputated can never be understated and cannot be compensated fully in pecuniary terms. The 'Pain and Suffering' suffered by him is immeasurable and I notice that the learned Tribunal was only awarded Rs.25,000/- under such head, against the claim of Rs.50,000/-. I am left without doubt that it has to be enhanced at least to the extent claimed. 11. Coming to the compensation under the head 'Loss of Amenities', the learned Tribunal has awarded Rs.20,000/-, without **MACA NO. 382 OF 2012** **7** a claim being made under that head by the appellant; and again for the same reason as said above, I propose to enhance it to Rs.40,000/- . 12. The argument of the the respondents - Insurance Companies, that no amounts under the head 'Disfiguaration' could have been granted, after compensation for 'Loss of Amenities' had been accounted for, cannot appeal to me in any manner. This is because, the amputation of leg leads to both 'Loss of Amenities' and 'Disfiguration'; and a person who suffered it would have to be compensated on both these heads independently. This is more so because, the appellant is now forced to live his life with prosthetic, which will also require to be changed from time to time. I do not therefore, deem it necessary to disturb the findings of the learned Tribunal under the head 'Disfigurment'. 13. It is on record and without contest that the appellant suffered 11 days of hospitalisation. The learned Tribunal has awarded him compensation under the head 'Extra Nourishment' and 'Bystander Expenses' at a mere Rs.110/- per day. This Court is fully aware that the accident happened in the year 2006; but, even in that year, the amount to be expended for such purposes would have been much more than what has been reckoned by the learned Tribunal. I, therefore, deem it appropriate to adopt the **MACA NO. 382 OF 2012** **8** figures of Rs.250/- and Rs.300/- under the said heads. 14. That said, Annexure A – Charge Sheet shows that the Police, after investigation has unequivocally found only the drivers of the car and lorry to be negligent; and that too in equal proportion. Since the Insurance Companies raise no contest against this, I am certain that the compensation awarded to the appellant will have to be shared by them equally, without any reduction as has been ordered by the Tribunal, on its incorrect finding that rider of the motor cycle was also negligent. In the afore circumstances, this appeal is partly allowed in the following manner: a) The compensation under the head 'Loss of Earning Power' is enhanced to Rs.10,21,020/- from Rs.3,97,800/- awarded by Tribunal, reckoning the notional income of the appellant to be Rs.5,500/-, with 40% 'Future Prospects' added to it and his percentile of disability reckoned as 65%, as per Ext.X1. The multiplier '17' has been adopted, as per **Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802],** in this regard **.** b) The compensation under the head 'Pain and Suffering' is enhanced to Rs.50,000/-, from Rs.25,000/- as awarded by the Tribunal. **MACA NO. 382 OF 2012** **9** c) The compensation under the head 'Loss of Amenities' is enhanced to Rs.40,000/-, from Rs.20,000/- as awarded by the Tribunal. d) The compensation under the head 'Bystander Expenses' is enhanced to Rs.3,300/-, from Rs.1,100/-, reckoning the _per diem_ expenses for such purpose to be Rs.300/-, for eleven days of hospitalisation. e) The compensation under the head 'Extra Nourishment' is enhanced to Rs. 2,200/-, from Rs.1,000/- reckoning the _per diem_ expenses for such purpose to be Rs.200/-, for eleven days of hospitalisation. In all other heads, the compensation awarded by the Tribunal remains unaltered. Consequently, the appellant will be at full liberty to recover the compensation, as enhanced by this Court, from respondents 2 and 5 - Insurance Companies – whose liability is fixed equally - along with interest at the rate of 8% (reducing the rate of interest of 9%, as awarded by the Tribunal in view of the escalation granted by this Court), from the date of claim till realisation. Needless to say, while calculating interest on the amounts enhanced by this Court, a period of 149 days – being the delay in **MACA NO. 382 OF 2012** **10** filing the Appeal – shall stand excluded. In view of the afore, the amount as fixed above shall be deposited by the Insurance Companies in equal proportion before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. **Sd/- DEVAN RAMACHANDRAN, JUDGE** lsn