ABDULLAKUTTY C.A. v Abdul Majeed Marakkapparambil; Shihad; The Manager New India Assurance Company Limited

**MACA NO. 1600 OF 2012** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 10[TH] DAY OF MARCH 2022 / 19TH PHALGUNA, 1943** **MACA NO. 1600 OF 2012** **AGAINST THE AWARD IN OP(MV) 183/2008 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL, IRINJALAKUDA** ## **APPELLANT/PETITIONER:** ABDULLAKUTTY C.A. S/O.ABDULKHADER, AGED 52 YEARS, CHUNDEKKAD (H), PALLINADA, KARUPADANNA P.O., THRISSUR DISTRICT. BY ADVS. SRI.NAGARAJ NARAYANAN SRI.BENOJ C AUGUSTIN SMT.J.KASTHURI SRI.SAIJO HASSAN SRI.SEBIN THOMAS ## **RESPONDENTS/RESPONDENTS:** 1 ABDUL MAJEED MARAKKAPARAMBIL HOUSE, KARUMALLOOR, NORTH PARAVOOR, ERNAKULAM DISTRICT - 683513. 2 SHIHAD, S/O.ABUBACKER VALIYAKATH HOUSE, AZHIKODE DESOM P.O., AHIKODE VILLAGE, THRISSUR DISTRICT- 681044. 3 THE MANAGER NEW INDIA ASSURANCE COMPANY LIMITED, SUB JAIL ROAD, ALUVA, PIN-683101. BY ADV SMT.T.C.SOWMIAVATHY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1600 OF 2012** **2** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.183/2008 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. 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 17.1.2008. It was his case that, on the abovesaid day, while he was walking along the Kodungallur-Irinjalakuda public road, a car bearing Reg. No.KL-7/AA 2788(car), driven by the 2[nd] respondent in a negligent manner, hit the appellant. The appellant sustained multiple injuries and was treated at the Modern Hospital, Kodungallur. He suffered a fracture of the right humerus, fracture of the mid face left and fracture of the mandible. He was treated as an inpatient for a period of **MACA NO. 1600 OF 2012** **3** 8 days. The appellant was a Tailor by profession and was earning a monthly income of Rs.5,000/-. The car was owned by the 1[st] respondent and was insured with the 3[rd] respondent. Hence, the appellant claimed a compensation of Rs.2,71,000/- from the respondents, which claim was limited to Rs.2,20,000/-. 3. The respondents 1 and 2 had filed a joint written statement admitting the accident. However, they denied negligence on the part of the 2[nd] respondent. It was also stated that, as the car was insured with the 3[rd] respondent, it was the 3[rd] respondent who was to indemnify the liability of the 1[st] respondent arising out of the accident. 4. The 3[rd] respondent had filed a written statement admitting that the car had a valid insurance coverage. Nevertheless, the 3[rd] respondent stated that the accident occurred due to the negligence of the appellant. The 3[rd] respondent also alleged that there was a collusion between the 2[nd] respondent and the appellant. Therefore, the claim petition may be dismissed. **MACA NO. 1600 OF 2012** **4** 5. The appellant had examined himself and his Doctor as PW1 and PW2 and marked Exts.A1 to A9 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to recover from the 3[rd] respondent an amount of Rs.1,25,000/- with interest and proportionate cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.Nagaraj Narayanan, the learned counsel appearing for the appellant/petitioner and Smt.T.C.Sowmiavathy, the learned counsel appearing for the 3rd respondent- insurer. 9. The point that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 10. Ext.A2 final report filed by the Irinjalakuda Police in **MACA NO. 1600 OF 2012** **5** Crime No.68/08 proves that the accident occurred due to the negligence of the 2nd respondent. Indisputably, the 1st respondent was the owner and the 3[rd] respondent was the insurer of the car. The respondents have not let in any evidence to discredit Ext.A2 final report. The 3[rd] respondent has also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 11. The appellant had claimed that he was a Tailor by profession and was earning a monthly income of Rs.5,000/-. The Tribunal, for the want of materials, fixed notional monthly income of the appellant at Rs.2,500/-. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. **MACA NO. 1600 OF 2012** **6** 13. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2008, I re-fix the notional monthly income of the appellant at Rs.5,000/-, as claimed in the claim petition. ## **Loss of earnings** 14. The Tribunal found that the appellant was indisposed for a period of two months. 15. Taking into account the fact that the appellant had suffered three fractures, that he was treated as an inpatient for a period of eight days and that he was a Tailor by profession, I hold that he was indisposed for a period of four months. In view of the re-fixation of the notional monthly income of the appellant at Rs.5,000/-, I award him an amount of Rs.20,000/- under the head ‘loss of earnings’, instead of Rs.5,000/- awarded by the **MACA NO. 1600 OF 2012** **7** Tribunal. ## **Loss due to disability** 16. The appellant had examined PW2 who had issued Ext.A8 disability certificate, wherein, it was found that the appellant has a permanent disability of 15%. 17. The Tribunal fixed the permanent disability of the appellant at 10%. 18. In **Rajkumar v. Ajaykumar** [2011 (1) KLT 620 SC] , the Hon'ble Supreme Court has held that, what needs to be looked into in a case of injury, is the functional disability of the injured-claimant. 19. On a consideration of the injuries reflected in Ext.A8 disability that has been shown in Ext.A8 disability certificate, I confirm the finding of the Tribunal that the appellant has a functional disability of 10%. ## **Multiplier** 20. The appellant was aged 52 years at the time of the accident. In the light of the law laid down in **Sarla** **Verma & Otrs Vs. Delhi Transport Corporation** [(2009) **MACA NO. 1600 OF 2012** **8** 6 SCC 121], the relevant multiplier to be adopted is '11' . ## **Loss of earning capacity** 21. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.5,000/-, his functional disability at '10%' and the multiplier at 11, I award him an amount of Rs.66,000/under the head ‘loss of earning capacity’, instead of Rs.33,000/- awarded by the Tribunal. ## **Pain and sufferings and Loss of amenities** 22. The Tribunal had awarded the appellant an amount of Rs.15,000/- under the head 'pain and sufferings'. 23. Taking into account the fact that the appellant has suffered three fractures, that he was treated as an inpatient for a period of eight days, that he was indisposed for a period of four months and that he has suffered a functional disability of 10%, I award him a further amount of Rs.5,000/- under the head 'pain and sufferings' and Rs.10,000/- under the head 'loss of amenities' . **MACA NO. 1600 OF 2012** **9** ## **- Extra nourishment expenses** 24. As the appellant was treated as an inpatient for a period of eight days, I award him an amount of Rs.1,000/under the head 'extra-nourishment'. ## **Other heads of compensation** 25. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 26. 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. **MACA NO. 1600 OF 2012** **10** **==> picture [435 x 442] intentionally omitted <==** **----- Start of picture text -----**<br> SI.No Head of claim Amount awarded Amounts<br>by the Tribunal (in modified and<br>rupees) recalculated by<br>this Court<br>1 Loss of earnings 5,000 20,000<br>2. Transport to hospital 1,000 1,000<br>3. Bystander expenses 1,000 1,000<br>---<br>4. Extra nourishment 1,000<br>5. Medical Expenses 69,540 69,540<br>6. Pain and suffering 15,000 20,000<br>----<br>7. Loss of amenities 10,000<br>8. Loss of earning capacity 33,000 66,000<br>Total 1,24,540 188,540<br>(rounded off to<br>========<br>Rs.1,89,000/-<br>====== ===<br>**----- End of picture text -----**<br> In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.64,460/- with interest at the rate of 6% per annum from the date of petition till the date of deposit, after deducting the interest for a period of 128 days ( i.e. the period of **MACA NO. 1600 OF 2012** **11** delay in filing the appeal and as ordered by this Court on 8.8.2012 in C.M.Appli.No.1895 of 2012) and a cost of Rs.10,000/-. The 3[rd] respondent-insurer is orderedto deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of 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. ma/10/3/2022 **Sd/- C.S.DIAS, JUDGE**