Afsal Rahman v. Firosh, Safeer and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 2[ND] DAY OF APRIL 2024 / 13TH CHAITHRA, 1946** **MACA NO. 3820 OF 2019** **AGAINST THE AWARD DATED 06.05.2019 IN OPMV NO.1545 OF 2017 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/PETITIONER:** **AFSAL RAHMAN AGED 41 YEARS, S/O. MOHAMMED, MALIYEKKAL PARAMBIL HOUSE, EAST NALLUR P.O FEROKE, KOZHIKODE-673 631.** **BY ADV ANIL KUMAR K.P.** ## **RESPONDENTS/RESPONDENTS:** **1 FIROSH, S/O. MUHAMMED, PUTTAKKAD HOUSE, FEROKE P.O, KOZHIKODE 673 631. 2 SAFEER AGED 21 YEARS, S/O. HUSSAIN KUNNATHODI, KUNNATH PARAMBU HOUSE, EAST NALLUR P.O, FEROKE, KOZHIKODE 673 631. 3 UNITED INDIA INSURANCE CO. LTD, MICRO OFFICE, KADOOR BUILDING, NEAR PAVANOOR PALLI, RAMANATTUKARA, KOZHIKODE 673 002.** ## **BY ADV SRI.A.A.MOHAMMED NAZIR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.3820 of 2019 2 ## **C.S.SUDHA, J.** ## **-----------------------------------M.A.C.A.No.3820 of 2019** **---------------------------------------------------Dated this the 02[nd] day of April 2024** ## **J U D G M E N T** This appeal under Section 173 of the Motor Vehicles Act, 1988 (the Act) has been filed by the claimant in O.P. (MV)No.1545/2017 on the file of the Motor Accidents Claims Tribunal, Kasaragod, (the Tribunal), aggrieved by the amount of compensation granted by Award dated 06/05/2019. The respondents herein are the respondents before the Tribunal. The parties and the documents will be referred to as described in the original petition. 2. According to the petitioner, on 26/11/2016 at 11:30 a.m., he was riding his scooter bearing No.KL-11 AE-3495 from the place by name Feroke to Ramanattukara and when he reached M.A.C.A.No.3820 of 2019 3 the road in front of Calicut Gate Hotel, motor cycle bearing No.KL-55-A-152 ridden by the second respondent in a rash and negligent manner, hit the scooter of the petitioner as a result of which he fell down and sustained serious injuries. The first respondent is the registered owner of the offending vehicle and the third respondent, the insurer. The respondents are jointly and severally liable to compensate the petitioner. Hence the petitioner claimed an amount of ₹5 lakhs as compensation under various heads. 3. . Respondents 1 and 2 remained _ex parte_ 4. The third respondent filed written statement admitting the existence of a valid policy, but disputing liability. The accident occurred due to the negligence of the petitioner. The age, occupation, income and injuries stated to have been sustained by the petitioner were disputed. According to the third respondent, the compensation claimed was highly exorbitant and unreasonable. M.A.C.A.No.3820 of 2019 4 5. Before the Tribunal, PW1 was examined and Exts.A1 to A11 were marked on the side of the petitioner. No oral or documentary evidence was adduced by the respondent. 6. The Tribunal on a consideration of the oral and documentary evidence and after hearing both sides, found negligence on the part of the second respondent resulting in the incident and hence awarded an amount of ₹3,15,750/- with interest @ 8% per annum from the date of the petition till realisation along with proportionate costs. Aggrieved, the petitioner has come up in appeal. 7. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court. 8. Heard both sides. 9. The impugned award is challenged by the petitioner on the following grounds- - 10. **Notional Income** It is submitted by the learned 5 M.A.C.A.No.3820 of 2019 counsel for the petitioner that when the incident took place on 26/11/2016, the petitioner, a businessman was aged 38 years. Though he was unable to produce any documentary evidence to prove his monthly income of ₹40,000/-, going by the dictum in **Ramachandrappa v. Manager, Royal Sundaram Allian.Co.Ltd, (2011) 13 SCC 236** , the Tribunal ought to have fixed the monthly income at ₹10,500/-. However, the Tribunal fixed the monthly income only at the rate of ₹8,000/- per month, which is against the dictum in **Ramachandrappa** _(Supra). Per Contra,_ it is submitted by the learned counsel for the third respondent insurance company that the petitioner had met with accidents on two earlier occassions and had sustained serious injuries in those incidents. However, it was by concealing the said fact, the claim petition had been filed. The very fact that the petitioner was riding a tricycle at the time of the incident would make it clear that he was a disabled person and therefore the dictum in **Ramachandrappa** ( _Supra_ ) cannot be applied to the M.A.C.A.No.3820 of 2019 6 facts of the present case as the reported case was one relating to an able bodied coolie. The compensation awarded by the Tribunal is reasonable and the same calls for no interference, goes the argument. 10.1. The petitioner when examined before the Tribunal as PW1 admitted that on two previous occassions he had sustained serious injuries and that after the second incident, he requires the assistance of a walking stick to move around. The first incident was a road accident case, in which incident he had sustained serious injuries including fracture. However, the second incident was a fall by himself and hence no claim for compensation made. Compensation was claimed and obtained in the first incident. PW1 also deposed that his father was running a furniture mart and that he was assisting his father in the said business. It is true that in the cross examination a suggestion was put to PW1 that due to of the injuries sustained by him on earlier occassions, he had become a complete invalid and so was not M.A.C.A.No.3820 of 2019 7 working or earning any income. The suggestion was of course denied by PW1. The statement of the petitioner that he was assisting his father in the furniture business has not been discredited. No evidence has come on record that the petitioner was a complete invalid at the time of the incident. The petitioner was a 38 year old man and married at the time of the accident. Therefore, in the absence of evidence to show that he was completely incapacitated, it is improbable to conclude that he was not working at all or that he was not earning any income. In such circumstances, I rely on the dictum in **Ramachandrappa** ( _Supra_ ) based on which the notional income of the petitioner is fixed at ₹ **10,500** /- per month. 11. **Percentage of disability** - It is further submitted that the Tribunal went wrong in fixing the percentage of functional disability at 15%, though Ext.A8 disability certificate issued by a private orthopedic doctor states that the petitioner suffered 20% permanent partial disability on account of the M.A.C.A.No.3820 of 2019 8 injuries sustained in the incident. The conclusion of the Tribunal is not supported by any reason(s) and hence the said finding is also liable to be interfered with. On the other hand it was submitted by the learned counsel for the respondent/insurance company that fixing the disability at 15% itself was too high, as it needs to be noticed that the petitioner had sustained serious injuries on previous two occassions also. 11.1. Ext.A8 disability certificate is seen issued by a private doctor. The said doctor was not examined before the Tribunal. As held by the Apex Court in **Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343** , the Tribunal is to invariably make it a point to require the evidence of the doctor who treated the injured or who assessed the permanent disability and that mere production of a disability certificate/ discharge certificate is not proof of the extent of the disabilities stated in the certificate unless the doctor is tendered for cross examination with reference to the certificate. It has also been held that in cases where the M.A.C.A.No.3820 of 2019 9 certificates are not contested by the respondent, they may be marked on consent, thereby dispensing with oral evidence. In the case on hand, it is true that Ext.A8 certificate was marked without any objection being raised by the respondent. However, in the facts and circumstances of the case it would certainly have been ideal, had the doctor who issued the disability certificate been examined. This is so especially when it is admitted by the petitioner that he had sustained serious injuries including fracture on earlier two occasions. As pointed out by the learned counsel for the insurance company, the very fact that the petitioner was riding a tricycle scooter, that is, an altered model of a two wheeler and the admission made by PW1 that he requires the assistance of a walking stick to move around after his second accident, would show that he did have some percentage of disability even before the accident in this case. In such circumstances, even in the absence of the examination of the petitioner by a Medical Board, taking into account the injuries M.A.C.A.No.3820 of 2019 10 sustained by the petitioner, the Tribunal has fixed the disability at 15%, which in the light of the dictum in **Raj Kumar** ( _Supra_ ) appears quite reasonable. Therefore I find no reason(s) to interfere with the finding of the Tribunal under this head. 12. **Pain and suffering** - The learned counsel for the petitioner also pointed out that in the light of the injuries sustained by the petitioner, an amount of ₹20,000/- awarded under this head is too low. As per Ext.A2 wound certificate dated 26/11/2016, the petitioner sustained compound comminuted fracture of both bones of his left lower limb. Therefore an amount of **₹30,000** /- under this head would be just compensation. 13. **Loss of income** - It is also pointed out that in the light of the injuries sustained by the petitioner, he was unable to work for morethan six months and though compensation was claimed by the petitioner towards loss of income for the period, the Tribunal has failed to award any amount. 13.1. As the petitioner had sustained fracture of both ## M.A.C.A.No.3820 of 2019 **==> picture [12 x 9] intentionally omitted <==** the bones of his left lower limb, he would have been incapacitated at least for a period of three months and hence I find that he is entitled to compensation for loss of income for the - said period of three months, which comes to ₹ **31,500/** (10,500x3). 14. The impugned Award is partly modified thus - |Sl.<br>No.|Head of claim|Amount<br>claimed|Amount<br>awarded by<br>Tribunal|Modified<br>in<br>appeal| |---|---|---|---|---| |1.|Loss of earning<br>power|₹2,00,000/-|₹2,16,000 /-|₹2,83,500/-<br>(10,500x12x15x1<br>5/100)| |2|Loss of earning<br>from 26/11/2016<br>to 26/08/2017|₹3,60,000/-|-|₹31,500/-<br>[₹10,500/- x<br>3(M)*]| |3.|Pain<br>and<br>suffering|₹50,000/-|₹20,000/-|₹30,000/-<br>(20,000+10,000)| |4.|Loss amenities<br>and enjoyment of<br>life|₹50,000/-|₹20,000/-|₹20,000/-<br>(No<br>modification)| |5.|Medical Bills|₹1,00,000/-|₹51,750/-|₹51,750/-<br>(No<br>modification)| M.A.C.A.No.3820 of 2019 **==> picture [12 x 9] intentionally omitted <==** **----- Start of picture text -----**<br> 12<br>**----- End of picture text -----**<br> |||12||| |---|---|---|---|---| |6.|Bystander's<br>expenses|-|₹3,000/-|₹3,000/-<br>(No<br>modification)| |7.|Transport<br>to<br>hospital|₹50,000/-|₹2,000/-|₹2,000/-<br>(No<br>modification)| |8.|Extra nourishment|₹10,000/-|₹3,000/-|₹3,000/-<br>(No<br>modification)| ||**Total**|₹8,20,000/|₹3,15,750/-|₹4,24,750/-| ## [ * M – Month] In the result, the appeal is allowed in part by enhancing the compensation by a further amount of ₹ **1,09,000** /- (total compensation ₹4,24,750/-, that is, ₹3,15,750/- granted by the Tribunal + ₹1,09,000/- granted in appeal) with interest at the rate of 7.5% per annum from the date of petition till date of realization and proportionate costs. The third respondent/insurer is directed to deposit the enhanced compensation with interest and costs before the Tribunal within a period of 60 days from the date of receipt of a copy of the judgment. On deposit of the M.A.C.A.No.3820 of 2019 13 compensation amount, the Tribunal shall disburse the amount to the petitioner/appellant at the earliest in accordance with law. Interlocutory applications, if any pending, shall stand closed. Sd/- **C.S.SUDHA JUDGE** Jms