Abu Thahir v. Mohammed Ali and The New India Assurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH WEDNESDAY, THE 25TH DAY OF MAY 2016/4TH JYAISHTA, 1938 MACA.No. 1735 of 2011 ( ) -------------------------AGAINST THE AWARD IN OP(MV)NO.1778/2004 of THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR DATED 30-05-2011 ## APPELLANT/PETITIONER: --------------------------- ABU THAHIR, S/O.KHALID, ALANCHERY HOUSE, NAMBRAM, P.O.KAVALAPPARA, SHORNUR, PALAKKAD DISTRICT. BY ADV. SRI.P.V.CHANDRA MOHAN ## RESPONDENTS/RESPONDENTS: ----------------------------------- 1. MOHAMMED ALI, S/O.MUHAMMED, PULAKKAL HOUSE, KONDOORKKARA, P.O.KARAKKAD, PATTAMBI-679 303. 2. THE NEW INDIA ASSURANCE CO.LTD., REP.BY DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE, THRISSUR.680 001. R2 BY ADV. SMT.A.SREEKALA R2 BY ADV. SRI.ZIYAD RAHMAN THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------- M.A.C.A.No.1735 of 2011 -------------------------------Dated 25[th] May, 2016 ## **JUDGMENT** ## **Ravikumar, J.** The injured-claimant comes up in appeal on being dissatisfied with the quantum of compensation awarded by the Motor Accidents Claims Tribunal, Thrissur in O.P.(M.V)No.1778 of 2004. The appellant filed the said claim petition under Section 166 of the Motor Vehicles Act seeking compensation for the injuries sustained by him in a motor vehicle accident occurred on 11.1.2003. On that day at about 2.30 p.m. he was riding a motor cycle bearing Reg.No.KL-11/F 4173 through Aramgottukara - Koottupataha public road from east to west. The offending vehicle, a jeep bearing Reg. No.KLL/4979, driven by the first respondent, who is its owner-cum-driver, dashed against the said motor cycle. Consequently, he sustained injuries. The appellant was taken to West Fort Hospital, Thrissur and he remained there as inpatient from 11.1.2003 to 20.1.2003. He was again admitted in Divine Medical Centre, Wadakkanchery on 21.3.2004 and was discharged on 22.3.2004. Going by Ext.A1 accident-cum-wound certificate, Ext.A2 discharge summary, Ext.A3 C.T. Scan report, the M.A.C.A.No.1735/2011 2 ## appellant sustained the following injuries in the accident:- “A lacerated wound 2 x 1 x 0.5 cm on nose, abrasion on chest upper side anteriorly, fracture of one tooth of the upper jaw and subluxation of three teeth on the upper jaw.” Ext.A3 C.T. Scan report would reveal that he had sustained fracture of right Zygoma and fracture of lateral wall of right orbit. It was in the said circumstances that he filed the above mentioned claim petition seeking a total compensation of 1,72,500/-. In support of his claim₹ the appellant got marked Exts.A1 to A11. Evidently, both sides did not adduce any oral evidence before the Tribunal. On the side of the respondents Ext.B1 which is the copy of the insurance policy, was got marked. The Tribunal, as per the impugned award, awarded a compensation of 59,750/- rounded off to 60,000/-. As noticed₹ ₹ hereinbefore, it is feeling aggrieved and dissatisfied with the quantum of compensation that the captioned appeal has been preferred. 2. We have heard the learned counsel for the appellant as also the learned counsel appearing for the second respondent. 3. The insurance coverage of the offending vehicle is admitted by the 2[nd] respondent. Though the Tribunal found that the M.A.C.A.No.1735/2011 3 accident occurred due to the rashness and negligence on the part of the first respondent he did not prefer any appeal. In such circumstances, we are called upon to consider only the question as to whether or not the appellant is entitled to get enhanced compensation as claimed. 4. The learned counsel for the appellant contended that disregarding the specific averments in the claim petition that the appellant was working as Salesman in a Poultry Farm and was earning a monthly income only at 4,500/- the Tribunal fixed the monthly income₹ only at 2,500/-. It is submitted that the said erroneous fixation of₹ the monthly income by the Tribunal has virtually deprived the appellant a just compensation. The appellant has further grievances regarding the compensation granted under certain other heads. The learned counsel submitted that compensation granted under the heads `bystander expenses', `transportation expenses', `extra nourishment', `pain and suffering' are on the lower side. It is the further contention that though the appellant produced Ext.A6 disability certificate showing the permanent disability of the appellant as 15% the Tribunal totally discarded the same and no amount of compensation was granted for the permanent disability incurred by the appellant in the accident. It is further contended that though the appellant claimed an amount of ₹1,00,000/- for the disability incurred the Tribunal, presumably granted M.A.C.A.No.1735/2011 4 a paltry amount of 6,000/- under the combined heads of disability,₹ loss of earning power, loss of amenities and disfiguration. The learned counsel contended that in such circumstances, compensation under the aforesaid heads also require a modification. Per contra the learned counsel appearing for the 2[nd] respondent insurer contended that the Tribunal cannot be found fault with in taking the monthly income of the appellant notionally and also for declining to accept Ext.A6 disability certificate. The learned counsel submitted that though the appellant claimed that he was working as a Salesman attached to a Poultry Farm and was earning 4,500/- and further that he had incurred a₹ permanent disability to the tune of 15% he had not adduced any evidence to establish such contentions. 5. After hearing the rival contentions and perusing the evidence on record we are also of the view that the Tribunal cannot be said to have committed a legal error in declining to accept such contentions regarding the occupation, income and also permanent disability. But, at the same time, it is to be noted that at the time of the accident the appellant was aged 22 years and he was an able bodied person. At any rate, it is nobody's case that he was a disabled person prior to the accident. The accident occurred on 11.1.2003. We are of the view that even though the appellant failed to establish his M.A.C.A.No.1735/2011 5 occupation and income while considering the compensation payable under different heads his monthly income fixed by the Tribunal at ₹ 2,500/- is on the lower side and taking into account the aforesaid aspect, it requires modification. In the case of a Coolie who met with an accident in the year 2004 the Hon'ble Apex Court fixed his monthly income notionally at 4,500/-, as is obvious from the decision in₹ _**Ramachandrappa** v._ _**Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC 236).**_ It can be taken as a guidance for fixing the monthly income in this case as the accident in question occurred in the year 2003. Considering such factors we are of the view that for the purpose of computing compensation the monthly income of the appellant has to be fixed notionally at 4,000/-. It is fixed accordingly. The Tribunal evidently₹ took the period of loss of earning as three months. In the light of the fixation of the monthly income as 4,000/-, for the same period, the₹ appellant would be entitled to get an amount of 4,500/- additionally₹ under that head. Towards `bystander expenses' the appellant claimed an amount of 3,000/- and the Tribunal granted an amount of₹ ₹ 2,000/-. The appellant had been an inpatient for a period of 12 days. Taking into account the year of accident we are of the view that he is entitled to get 200/- per day towards `bystander expenses'. Based₹ on such computation the appellant is entitled to get an amount of M.A.C.A.No.1735/2011 6 ₹ 400/- more under that head. As regards `transportation expenses' an amount of 2,000/- was claimed and the Tribunal granted₹ ₹ 1,000/-. We have already noted that the appellant was hospitalised on two occasions. In such circumstances, he is entitled to get the amount as claimed towards transportation expenses. In other words, the appellant is entitled to get 1,000/- more under that head. We₹ award the same. Considering the nature of the injuries sustained by the appellant we are also of the view that there was no reason to decline the amount claimed towards `extra nourishment' viz., ₹ 2,000/-. The Tribunal granted only an amount of 1,500/-. Hence₹ ₹ 500/- more is granted under the said head. Towards `pain and suffering' the appellant claimed 20,000/- and the Tribunal granted₹ ₹ 15,000/-. We have already narrated the injuries sustained by the appellant in the accident. Taking note of the fact that he had sustained such grievous injuries there can be no doubt with respect to the fact that he must have suffered excruciating pain owing to such injuries. In such circumstances, we see no reason to decline the amount as claimed. In other words, the appellant is entitled to get 5,000/- more₹ under the head `pain and suffering' and we award the same. We have already found that the Tribunal cannot be legally found fault in not accepting Ext.A6. But, at the same time, merely because the appellant had failed to legally bring Ext.A6 on record we are of the view that the M.A.C.A.No.1735/2011 7 fact that he had incurred permanent disability in the accident cannot go unnoticed when the other medical records justify such claim and contention. In other words, he has to be adequately compensated when once it is evident that in the accident the appellant had actually incurred permanent disability and it cannot be a false claim of disability. Ext.A3 C.T. Scan report would further go to show that he had sustained fracture of lateral wall of right orbit, fracture of nasal bones on both sides and nasal septum. Taking into account such circumstances, we are of the view that the permanent disability incurred can be safely assessed as 5% for the purpose of calculating compensation for permanent disability incurred by him. With reference to the age of the appellant on the date of the accident viz., 22 years and in the light of the decision of the Hon'ble Apex Court in _**Sarla Verma** v._ _**Delhi Transport Corporation (2010 (2) KLT 802 (SC))**_ the multiplier to be adopted for the purpose of calculating compensation for permanent disability has to be 18. In such circumstances, the appellant is entitled to get an amount of 43,200/- (400 x 12 x 18 x ₹ 5 ). We award the 100 said amount under that head. The nature of the injuries would undoubtedly go to show that he had sustained some disfiguration and certainly, it would adversely affect his marriage prospects considering his young age. We are of the view that he is entitled to get an amount of 20,000/- on that head. The Tribunal granted an amount of₹ M.A.C.A.No.1735/2011 8 ₹ 6,000/- as against the heads `disability', `loss of earning power', `loss of amenities' and `disfiguration'. We are inclined to treat that the said amount was granted towards compensation for `loss of amenities'. In the light of the discussion as above, the appellant is entitled to get a total enhanced compensation of 74,600/-. The₹ enhanced amount will carry interest at the rate of 8% per annum from the date of petition till realisation. The 2[nd] respondent is directed to deposit the said amount within a period of two months from the date of receipt of copy of this judgment failing which the amount remaining to be paid will carry interest at the rate of 9% per annum from the date of petition. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS