Afsal Babu v. Sreenivasan P and Nilambur Co-operative Urban Bank & United India Insurance 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** **THURSDAY, THE 26TH DAY OF MAY 2016/5TH JYAISHTA, 1938** **MACA.No. 1435 of 2012 () -------------------------** **AGAINST THE AWARD IN OPMV 233/2009 of M.A.C.T., MANJERI DATED 29-02-2012** ## **APPELLANT/PETITIONER:** **---------------------------------** **AFSAL BABU,AGED 25 YEARS S/O SHOWKATH, ANAKKAYIL HOUSE, P.O, VADAPURAM, MALAPPURAM DISTRICT.** **BY ADVS.SRI.P.SAMSUDIN SMT.NIMA JACOB** ## **RESPONDENTS/RESPONDENTS:** **--------------------------------------** ## **1. SREENIVASAN P** **S/O RAJAN NAIR, CHEERANTHODI HOUSE, CHAKKALAKUTH, NILAMBUR P.O.-679 329, MALAPPURAM DISTRICT. (DRIVER).** ## **2. THE GENERAL MANAGER,** **NILAMBUR CO-OPERATIVE URBAN BANK, NILAMBUR P.O.-679329, MALAPPURAM DISTRICT. (OWNER).** **3. THE UNITED INDIA INSURANCE COMPANY LIMITED.** **A.M. BUILDING, HOSPITAL ROAD, NILAMBUR P.O.-679 329. (INSURER)** **R1 BY ADV. SRI.RAJAN P.KALIYATH R3 BY SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.1435 OF 2012** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of May, 2016 ## **JUDGMENT** ## Ravikumar, J. The injured claimant is the appellant. It is feeling aggrieved and dis-satisfied with the quantum of compensation awarded by the Motor Accidents Claims Tribunal, Manjeri in O.P.(MV)No.233/2009 that he preferred the captioned appeal. He filed the claim petition under Section 166 of the Motor Vehicles Act seeking compensation for the injuries sustained by him on 4.8.2008 in a motor vehicle accident. On that day, he was riding his motor cycle along Nilambur-Manjeri road with his sister as pillion rider. When they reached Vadapuram bridge, the offending vehicle, which is a car bearing Reg.No.KL 10 W 212 collided with the motor cycle and consequently the appellant sustained injuries. He remained in the hospital as an inpatient for a period of 23 days. In the accident, he sustained fracture of both bones of his right leg, fracture zygoma bilateral maxilla, fracture mandible, punctured MACA No.1435/2012 2 wound left middle leg and fracture of both bones of left forearm, as is evident from Exts.A2 and A3 wound certificates. Ext.X1 disability certificate issued by the Medical Board would reveal that he incurred 9% permanent disability. He filed the claim petition seeking a total compensation of Rs.4,00,000/-. 2. To establish his claim, the appellant got marked Exts.A1 to A9. On the side of the respondents, Ext.B1, which is the copy of the final report in the crime registered in connection with the aforesaid accident was got marked. Both sides did not adduce any oral evidence. It is after considering the rival contentions and evidence on record that the Tribunal granted a total compensation of Rs.2,51,050/- as compensation with interest @ 9% per annum from the date of petition till realization. The appellant seeks for enhancement of the said quantum of compensation. 3. We have heard the learned counsel appearing for the appellant Sri.P.Shamsudin and the learned counsel appearing for the third respondent Sri.Rajan P.Kaliyath. MACA No.1435/2012 3 4. The learned counsel for the appellant contended that the finding of the Tribunal that the appellant had contributed to the accident and consequently apportioning the contributory negligence between the appellant and the first respondent in the ratio of 25 : 75 is erroneous and warrants appellate interference. The learned counsel contended that Ext.B1 would reveal that the first respondent alone was made the accused in the crime registered in connection with the accident. The contention is that in such circumstances there was absolutely no justification for finding that the appellant had contributed to the accident and the Tribunal ought to have found that the accident occurred solely due to the negligence of the first respondent. It is to be noted that the scene mahazar prepared in the crime registered in connection with the accident was not produced before the Tribunal. The appellant was not holding a driving licence at all at the time of the accident. Obviously, on the fateful day, the appellant and his sister were travelling on his motor cycle. Despite the persuasive arguments of the learned counsel appearing for the appellant that the MACA No.1435/2012 4 non-possession of a driving licence ought not to have been taken at all for the purpose of considering his entitlement to compensation, we are not inclined to accept the said contention. The appellant had not produced the scene mahazar to establish that the accident had occurred solely due to the negligence from the part of the first respondent. Legally, it cannot be presumed that a person, who was not at all holding a driving licence at all is a person, who is fully competent to drive a vehicle. Add to it he was driving the motor cycle with a pillion rider. Taking into account all such circumstances, we are of the view that the finding of the Tribunal that the appellant had contributed to the negligence and apportioning his contributory negligence as 25% warrants no interference. 5. The appellant got a further grievance regarding the fixation of his monthly income by the Tribunal for the purpose of calculating the compensation for loss of earning power. It is contended that in the claim petition, it was specifically averred that he was a nursing tutor and was earning Rs.5,000/- per month. At the same time it is a fact that MACA No.1435/2012 5 the appellant had not adduced any evidence to establish his contentions regarding occupation and income. When that be so, it cannot be said that the Tribunal went wrong in fixing the monthly income of the appellant notionally. But at the same time, the question whether the fixation of the monthly income of the appellant, who was aged only 22 years at the time of the accident, at Rs.3,500/- requires interference. In this context, is only proper to refer to the decision of the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** for guidance in the matter of fixation of monthly income. That was a case where the accident occurred to a coolie in the year 2004. The Hon'ble Apex Court fixed his monthly income notionally as Rs.4,500/- for the purpose of computing compensation. Taking into account the age of the appellant, the year of the accident and the said decision, we have no hesitation to hold that the fixation of monthly income by the Tribunal at Rs.3,500/- is too low and therefore we are inclined to fix the same to Rs.5,000/-. It is fixed accordingly. MACA No.1435/2012 6 6. The Tribunal has reckoned a period of six months as the period of loss of earnings. In the light of the fixation of his monthly income as Rs.5,000/- for the same period, the appellant would be entitled to get Rs.9,000/- more under the head of loss of earnings. 7. As noticed herein before, the appellant had to remain as inpatient for a period of 23 days. The Tribunal granted a sum of Rs.2,300/-, evidently @ Rs.100/- per day, towards bystander's expenses. Taking note of the fact that the accident occurred in the year 2008, we are inclined to enhance the rate to Rs.200/- per day and consequently, the appellant would be entitled to get Rs.2,300/additionally towards bystander's expenses. 8. Towards damage to clothing, the appellant claimed Rs.1,500/- and the Tribunal granted only a nominal amount of Rs.250/-. There can be no doubt that the dresses worn by the appellant must have been damaged in the accident taking note of the injury sustained by him. In such circumstances, we are inclined to grant Rs.750/- more under the aforesaid head. MACA No.1435/2012 7 9. Towards transportation, as against the claim of Rs.8,500/the Tribunal granted an amount of Rs.1500/-. Evidently, after the initial hospitalization, the appellant had 8 reviews. Taking into account such aspects, we are of the view that towards transportation expenses, the appellant is entitled to get Rs.3,500/- more. It is awarded accordingly. Towards extra nourishment, no amount is seen awarded. We have already taken note of the injury sustained by the appellant in the accident, they would undoubtedly indicate that the appellant must have made to take nutrient food during the period of hospitalization. In such circumstances, we are inclined to grant Rs.5,000/- under the said head. 10. Towards pain and suffering, the appellant claimed an amount of Rs.30,000/- and the Tribunal granted an amount of Rs.20,000/-. While considering the question of compensation for pain and suffering, certain aspects have to be looked into. Evidently, in the accident both the bones of his right leg and left forearm of the appellant were fractured. Apart from that, there is fracture of zygoma bilateral MACA No.1435/2012 8 maxilla, fracture mandible involving nasal bones. He had also sustained punctured wound on the left middle leg. Taking into account such injuries and their nature, it is evident that he must have endured severe pain. More over, it is to be noted that in the accident, he lost 10 teeth. Taking into account all such circumstances, we are of the considered view that for pain and suffering, the appellant is entitled to get Rs.50,000/- and in such circumstances, we award an amount of Rs.30,000/- more under the head of pain and suffering. 11. Towards loss of amenities and convenience, the appellant claimed an amount of Rs.75,000/- and the Tribunal granted an amount of Rs.20,000/-. The nature of the injuries expatiated above would undoubtedly show that the amount granted by the Tribunal is too meagre. Evidently, he was deprived of enjoyment of pleasures of life for quite a long time. The appellant is therefore, entitled to get enhancement under that head. Taking note of the fact that the appellant had sustained fractures of both bones of right leg and left forearm and mandible, besides loss of ten teeth, we are inclined to grant an amount MACA No.1435/2012 9 of Rs.30,000/- additionally under that head. 12. In the light of the fact that we have fixed the monthly income of the appellant as Rs.5,000/-, the amount of compensation for loss of earning power has to be reassessed. Evidently, the Tribunal has taken the entire percentage of disability viz. 9% certified under Ext.X1. There is no case for the appellant that the Tribunal had not correctly taken the multiplier applicable to him. In such circumstances, applying the same formula with the modified notional monthly income, the appellant would be entitled to get an additional amount of Rs.29,160/under the head of loss of earnings. It is awarded. 13. Under the head disfigurement, the Tribunal granted an amount of Rs.20,000/-. Evidently, for awarding the said amount, 5% functional disability pertaining to face noted in Ext.X1 was taken into account. In this context, the recital in paragraph 11 of the award of the Tribunal is not worthy. It is noted thereunder as follows : “This Tribunal confirmed that there was a slight asymmetry on is face near the right side of his mouth, that there was an elongated scar stretching MACA No.1435/2012 10 from the back of left ear to the centre of his neck and another scar on the left lower arm.” 14. Taking note of the above said aspects and the fact that the appellant lost ten teeth in the accident, we are of the view that the appellant is entitled to get compensation for the disfigurement, which he incurred in the accident. It is also to be noted that in view of such injuries, which had the impact as aforesaid, certainly it must have adversely affected his marriage prospects. Taking into account such aspects, we are inclined to grant Rs.30,000/- more under the head taking into account the disfigurement and its adverse impact on his marriage prospects. In the light of the enhancement made under different heads, the appellant will be entitled to get an enhanced compensation of Rs. 1,39,710/-. But at the same time, we have not interfered with the finding of the Tribunal that the appellant had contributed to the accident as also the fixation of the extent of his contributory negligence as 25%. In the result, 25% of the aforesaid amount has to be deducted. Consequently, the appellant will be entitled to get a total MACA No.1435/2012 11 enhanced compensation of Rs.1,04,782.50 rounded off to Rs.1,05,000/-. The enhanced amount will carry interest @ 8% per annum from the date of petition till realization. The third respondent is directed to deposit the enhanced amount within a period of two months from the date of receipt of a copy of this judgment, failing which the amount remaining to be paid will carry interest @ 9% per annum. There will be no order as to costs. **C.T.RAVIKUMAR, JUDGE** sv. **K.P.JYOTHINDRANATH, JUDGE**