Abdurahiman v. Faisal Koovakkadan and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 9TH DAY OF MARCH 2016/19TH PHALGUNA, 1937 MACA.No. 1827 of 2011 ( ) -------------------------AGAINST THE AWARD IN OP(M.V)No.348/2008 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DATED 17-12-2010 APPELLANT/PETITIONER IN OP(MV): --------------------------------------- ABDURAHIMAN, S/O.MUHAMMED, PALAMADATHIL KANNATTIL.P.O, KUTTOOR NORTH, VIA A.R.NAGAR, MALAPPURAM DISTRICT. BY ADVS.SRI.AVM.SALAHUDDEEN SMT.P.Y.SHEHEERA ## RESPONDENTS/RESPONDENTS IN OP(MV): ------------------------------------------------ 1. FAISAL KOOVAKKADAN, VADAKKE VEETTIL HOUSE, MUNDUPARAMBA, MALAPPURAM DISTRICT - 676 509. 2. VINEESH.K, S/O.VENUGOPAL, MAKKIRAPARAMBA, PANIKKERTHODI HOUSE, P.O.ANAKKAYAM, MALAPPURAM DISTRICT - 673 603. 3. NEW INDIA ASSURANCE COMPANY LIMITED, SILVER PLAZA BUILDING, MAVOOR ROAD, KOZHIKODE-673 001. R3 BY ADV. SMT.M.HEMALATHA R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) R1 BY ADV. SRI.K.M.SATHYANATHA MENON R1 BY ADV. SMT.ANJANA KANNATH R1 BY ADV. SMT.KAVERY S THAMPI R BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** ------------------------------- M.A.C.A.No.1827 of 2011 -------------------------------Dated 9[th] March, 2016 ## **JUDGMENT** ## **Ravikumar, J.** This appeal is preferred by the injured/claimant seeking enhancement of the amount of compensation granted as per award dated 17.12.2010 in O.P.(M.V)No.348 of 2008 passed by the Motor Accidents Claims Tribunal, Kozhikode. The appellant sustained injuries in a motor accident that occurred at about 3 p.m. on 25.2.2007. He was a passenger in a Jeep bearing Reg. No.KL-9-E-2055. When the said jeep reached a place called _Musliarangadi_ the offending vehicle, a Mini Lorry bearing Reg. No.KL-10-Y-8812 driven by the 2[nd] respondent dashed against the jeep and consequently the appellant sustained injuries. It is seeking compensation for the said injuries sustained in the said accident that he filed the above mentioned claim petition under Section 166 of the Motor Vehicles Act for a total compensation of ₹ 5,00,000/-. In support of the claim the appellant got marked Exts.A1 to A11. Ext.C1 is a court document which is in fact, a letter from the Medical College Hospital, Kozhikode. No oral evidence was adduced by both sides. In fact, the respondents did not adduce any evidence at all. M.A.C.A.No.1827/2011 2 It is after considering such evidence and the rival contentions that the Tribunal passed the impugned award for a total compensation of ₹ 2,66,988/-. 2. We have heard Adv.Sri.A.V.M.Salahuddeen, the learned counsel for the appellant and Adv.Smt.Hemalatha, the learned counsel appearing for the third respondent. 3. Evidently, the main grievance of the appellant lies with respect to the fixation of the multiplicand while assessing the compensation for permanent disability incurred by him in the accident. In the claim petition he claimed that he was a headload worker and was earning 4,500/- as monthly income. Obviously, the appellant did not₹ adduce any evidence to establish the said case. In such circumstances, the Tribunal fixed his monthly income notionally at 3,000/-. Taking₹ into account the said circumstances we do not find any error on the part of the Tribunal in fixing the monthly income notionally. But, the question is whether fixation of 3,000/- as monthly income notionally₹ requires any interference ? The accident occurred on 25.2.2007. The appellant was then aged 47 years. In such contextual situation, it is only apposite to refer to the decision of the Hon'ble Apex Court in _**Ramachandrappa** v._ _**Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC 236)**_ **.** That was a M.A.C.A.No.1827/2011 3 case where the accident occurred in the year 2004 and the claimant therein was a Coolie. The Apex Court fixed his monthly income notionally at 4,500/-. As noticed hereinbefore, in this case, the₹ accident occurred in the year 2007 and the appellant was then aged 47 years. In such circumstances, we are of the view that though the appellant failed to establish his occupation and income having regard to the decision of the Hon'ble Apex Court in **Ramachandrappa's** case (supra) 4,500/- has to be fixed as the monthly income of the₹ appellant for the purposes of computing compensation payable under the head `permanent disability' as also for the compensation payable for `loss of earning'. In the said circumstances, we fix the monthly income of the appellant as 4,500/-. The further grievance of the₹ appellant is that though the evidence on record would reveal that the appellant had to undergo treatment for a considerably long period the Tribunal took only a period of three months for the purpose of calculating the loss of earning. It is contended that Exts.A3 to A6 discharge cards would reveal that the appellant had been an inpatient for about two years. However, the Tribunal did not take into account the said aspect properly. In the light of the aforesaid facts it is further contended by the learned counsel for the appellant that the amounts paid towards extra nourishment, bystander's expenses, pain and sufferings are also on the lower side and the compensation granted by the Tribunal under such heads also invite enhancement. Per contra the M.A.C.A.No.1827/2011 4 learned counsel for the respondents submitted that the Tribunal took note of all relevant facts and granted just compensation in the light of the evidence on record. In short, according to them, no ground has been brought out by the appellant to support the claim for enhancement under different heads. 4. We have carefully gone through the evidence on record. Exts.A3 to A6 would reveal that the appellant who was admitted immediately after the accident on 25.2.2007 had to remain as inpatient for about 123 days. It would also reveal that the last spell of hospitalisation was from 16.9.2008 to 2.10.2008 and in between he had undergone five surgeries. In fact, on 28.8.2008 he had undergone an open reduction as well. Ext.A2 is the wound certificate which would reveal the injuries sustained by him in the accident. Taking into account all such aspects we are of the view that the Tribunal is not justified in fixing the period of loss of earning as three months and it ought to be much more than that. In the light of the evidence on record the loss of earning ought to have been taken for 18 months. Accordingly, we take the period of loss of earning as 18 months. We have already fixed the monthly income of the appellant as 4,500/-₹ and taking into account the fact that he had actually sustained loss of earning for a period of 18 months the amount payable under the said head has to be re-assessed. On such re-assessment the appellant is M.A.C.A.No.1827/2011 5 entitled to get an amount of 69,000/- additionally. It is awarded. For₹ transportation expenses the appellant claimed an amount of 30,000/-.₹ However, the Tribunal granted only 1,000/-. As noticed hereinbefore,₹ the evidence on record would reveal that the appellant had different spells of hospitalisation. Taking into account such aspects we are inclined to grant ₹ 4,000/- more under the head transportation expenses. As regards extra nourishment an amount of 25,000/- was₹ claimed but, the Tribunal granted only an amount of 1,000/-. The₹ impugned award itself would reveal that the appellant had been an inpatient for a period of 123 days. If an amount of 100/- is taken as₹ the amount spent for extra nourishment per day the appellant is entitled to get an amount of 11,300/- additionally. We award the said₹ amount under the head extra nourishment. Towards bystander's expenses an amount of 10,000/- was claimed and the Tribunal₹ granted 12,300/- viz., at the rate of 100/- per day for a period of₹ ₹ 123 days. The accident occurred in the year 2007 and the evidence on record would reveal that since he continued his treatment even at the fag end of the year 2008 we are of the view that in such circumstances, the rate of bystander's expenses has to be enhanced to 200- per day₹ for a period of 123 days. Based on such calculation the appellant is entitled to get an amount of 12,300/- additionally under the said₹ head. Under the head pain and sufferings the appellant claimed ₹ 50,000/- and the Tribunal granted 20,000/-. Exts.A2 to A6 would₹ M.A.C.A.No.1827/2011 6 reveal the injuries sustained by the appellant as also the treatment undergone by him pursuant to the accident. As noticed hereinbefore, he had to undergo five operations pursuant to the accident. The nature of the injuries are noted in Exts.A2 to A5. In the circumstances, we are of the view that taking into account the excruciating pain that the appellant suffered the compensation to be paid under the head `pain and sufferings' has to be enhanced. We are of the considered view that taking into account all such circumstances the appellant is entitled to get an amount of 20,000/- more under the said head and₹ accordingly, it is awarded. Exts.A2 to A6 would reveal that the appellant sustained fracture of left femur and right humerus and fracture was also there on the mandible. In such circumstances, we are of the view that an amount of 10,000/- under the head `discomfort'₹ has to be granted to the appellant and we award the same though the appellant had not made any claim under the said head. Towards permanent disability the appellant claimed an amount of 2,80,000/-₹ and the Tribunal granted 1,87,200/-. Ext.C1 is the disability₹ certificate issued by the Medical Board. As per the same permanent disability of the appellant was assessed as 40%. Evidently, the entire percentage of disability was taken into account by the Tribunal for granting the compensation under the head permanent disability. Taking into account the age of the appellant the multiplier of `13' was taken and evidently, the Tribunal has correctly fixed the multiplier with M.A.C.A.No.1827/2011 7 reference to the age of the appellant. We have already found that the Tribunal fixed the monthly income of the appellant as 3,000/-₹ erroneously and we fix the same as 4,500/-. In such circumstances,₹ on re-assessment of the amount payable towards permanent disability with substitution of the multiplicand 4,500/- the appellant is entitled₹ to an amount of 93,600/- additionally. In the light of the discussion₹ as above, the appellant is entitled to get an amount of 2,20,200/-₹ over and above the amount granted under the impugned award. The said amount will carry 8% interest from the date of petition till realisation. The third respondent is directed to deposit the said amount within a period of three months from the date of receipt of copy of this judgment. In case of failure on the part of the 3[rd] respondent to deposit the amount within the above stipulated time the amount remaining to be paid will carry interest at the rate of 9% per annum. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **MARY JOSEPH** **Judge** TKS