Abdul Saleem v. Babu, Ajith Kumar K.P., United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 4TH DAY OF DECEMBER 2013/13TH AGRAHAYANA, 1935** **MACA.No. 1479 of 2011 (E)** **-------------------------------------[AGAINST THE AWARD DATED 21/03/2011 IN O.P.(M.V).NO.117/2010 OF THE PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOZHIKODE]** **...........** ## **APPELLANTS/PETITIONER:** **---------------------------------------** **ABDUL SALEEM, S/O. MOIDEEN KUTTY, AGED 42 YEARS, RESIDING AT MUTHUKUZHIYIL HOUSE, PULLANNOOR, P.O.MALAYAMMA, KOZHIKODE DISTRICT.** **BY ADVS.SRI.V.S.CHANDRASEKHARAN, SMT.LEKSHMI SWAMINATHAN** . ## **RESPONDENTS/RESPONDENT:** **--------------------------------------------** **1. BABU, S/O. NOT KNOWN, NADUVATTATHU HOUSE, PUNNASSERY, KUTAMBOOR-673 010.** ## **2. AJITH KUMAR K.P.,** - **FATHER'S NAME NOT KNOWN, KUNARULLA PARAMBIL HOUSE, ADOOR POST, VATAKARA, KOZHIKODE-673 008.** **3. UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE 1, WHITELINES BUILDING, KALLAI ROAD, KOZHIKODE DISTRICT, PIN-673 006.** **R3 ADVS. SRI.JOHN JOSEPH VETTIKAD, SRI.P.JAYASANKAR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ----------------------------------------------------------------M.A.C.A. No.1479 of 2011 -----------------------------------------------------------------Dated this the 4[th] day of December, 2013 ## J U D G M E N T ## K. Ramarkishnan, J The claimant in O.P.(M.V.).No.117/2010 on the file of the Motor Accidents Claims Tribunal, Kozhikode, is the appellant herein. The appellant filed the application for compensation for the injuries and consequent disabilities suffered by him in a motor vehicle accident, caused on account of the rash and negligent driving of the 2[nd] respondent, owned by the first respondent and insured with the 3[rd] respondent. After considering the evidence on record, the tribunal found that, the accident occurred due to the negligent driving of the vehicle by the 2[nd] respondent and awarded a total compensation of ₹ 1,27,279/- on various heads as follows: M.A.C.A. No.1479 of 2011 2 |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**awarded₹**| |---|---|---| |1|Loss of earnings|9, 000| |2|Transport to hospital|1, 000| |3|Extra nourishment|750| |4|Damages to clothings and other<br>articles|500| |5|Treatment expenses|7, 329| |6|Bystander's expenses|1, 500| |7|Pain and suffering|10, 000| |8|Permanent disability|97, 200| ||Total|1, 27, 279| Dissatisfied with the quantum of compensation awarded by the tribunal, the appellant has filed this appeal before this court, seeking enhanced compensation. 2. Heard the counsel for the appellant and counsel for the insurance company. 3. The counsel for the appellant submitted that, the appellant was aged 42 years, an agriculture labourer and getting 7,500/- at the time of the accident.₹ But the tribunal has arbitrarily fixed his monthly income as 3,000/- per month, which is very low. Further, he₹ suffered severe fracture to his leg, but the tribunal has taken only 3 months for assessing compensation under M.A.C.A. No.1479 of 2011 3 the head loss of earning during the period of treatment, which is also on the lower side. The amount awarded under the head pain and suffering is also on the lower side, in spite of the fact that 18% disability was suffered by him, which was accepted by the tribunal for assessing compensation under the head loss of earning capacity. No amount was awarded under the head loss of amenities in life. So the appellant is entitled to get enhancement on all heads. 4. On the other hand, the counsel for the insurance company submitted that, the appellant was aged 42 years and the proper multiplier applicable to that age group is only 14 and not 15 as taken by the tribunal as per the decision reported in **Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC).** The tribunal has considered all the aspects in right perspective and the total compensation awarded, considering the nature of injuries sustained and disability M.A.C.A. No.1479 of 2011 4 suffered is just and proper and no interference is called for at the hands of this court. 5. We have considered the rival contentions of both parties in detail. 6. The case of the appellant was that he was an agriculture labourer, getting 7,500/- per month at₹ the time of accident. There is no acceptable evidence adduced on the side of the appellant to prove, either his income or his avocation. The accident occurred on 29.04.2009. So considering the living condition and cost of living condition at the relevant time, we feel that an amount of 3,000/- fixed by the tribunal appears to be on₹ the lower side. So, considering these aspects and also the possibility of getting higher income in future, we feel that the income of the appellant can be re-fixed as ₹ 4,000/- per month and we do so. 7. The appellant has suffered fracture to his leg. He was treated as inpatient for 15 days. Considering M.A.C.A. No.1479 of 2011 5 the nature of injuries sustained, he could not have undertaken his work for at least four months. But the tribunal has taken only three months for that purpose. So, we take four months and award 16,000/- under the₹ head loss of earning during the period of treatment instead of 9,000/- awarded by the tribunal. We are also₹ inclined to enhance the compensation for pain and suffering suffered by the appellant to 20,000/- from₹ ₹10,000/- awarded by the tribunal. 8. There is some force in the submission made by the counsel for the insurance company that, the proper multiplier is 14 and not 15, in view of the decision reported in Sarla Verma's case(supra). If a re-calculation is made, taking his monthly income as 4,000/- and the₹ multiplier 14, he will be entitled to get an amount of ₹ 1,20,960/- (4,000x12x14x18%) instead of 97,200/-₹ awarded by the tribunal under the head loss of earning capacity, though it was termed as permanent disability in M.A.C.A. No.1479 of 2011 6 the tabulation made by the tribunal and we award this amount under the head loss of earning capacity. 9. Though he suffered 18% disability and that was taken for the purpose of assessing compensation under the head loss of earning capacity as well, the tribunal was not justified in not awarding any amount under the head loss of amenities in life. This may have some impact on his personal life as well. He will have to be with this disability for the remaining period of his life. So considering these aspects, we feel that, an amount of ₹ 30,000/- can be awarded under the head loss of amenities in life and we do so. We are not inclined to enhance any amount under other heads, as the amount awarded by the tribunal under other heads are just and proper. In all, the appellant will be entitled to get an additional compensation of 70,760/-, over and above₹ what has been awarded by the tribunal, which the 3[rd] respondent insurance company is directed to deposit with M.A.C.A. No.1479 of 2011 7 9% interest per annum from the date of the claim petition, till date of payment. Two months time is granted to the insurance company to deposit this amount as well. With the above modification of the impugned award of the tribunal, the appeal is disposed of. Sd/- S. Siri Jagan, Judge Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss