Ahammed Koya K.T. v. M.KUNHIMOIDEENKUTTY; Sajith Rahman; The 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 MONDAY, THE 31ST DAY OF OCTOBER 2016/9TH KARTHIKA, 1938 MACA.No. 1274 of 2011 ( ) -------------------------AGAINST THE AWARD IN OPMV 81/2007 of PRINCIPAL M.A.C.T.,KOZHIKODE DATED 18-01-2011 APPELLANT(S):PETITIONER ------------------------------- AHAMMED KOYA K.T, S/O.MAMMYKOYA, AGED 46 YEARS,RESIDING AT KALATHUMTHODI HOUSE, P.O NELLITHODE, KOZHIKODE. BY ADVS.SRI.V.S.CHANDRASEKHARAN SMT.LEKSHMI SWAMINATHAN RESPONDENT(S):RESPONDENTS ------------------------------------ 1. M.KUNHIMOIDEENKUTTY, AGE NOT KNOWN, RESIDING AT KALATHIL HOUSE, DARUL HUDHA HOUSE, P.O POKKUNNU,NO.71/94,KOZHIKODE 673 022. 2. SAJITH RAHMAN, S/O.KUNHIMOIDEEN, AGED 23 YEARS,RESIDING AT DARUL HUDHA HOUSE, NO.71/194, P.O POKKUNNU,KOZHIKODE, 673 022. 3. THE UNITED INDIA INSURANCE CO.LTD, DIVISIONAL OFFICE, WHITE BUILDING, KALLAI ROAD, KOZHIKODE 673 003. R3 BY ADV. SRI.RAJAN P.KALIYATH R3 BY ADV. SRI.A.D.RAVINDRA PRASAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ. ==========================** ## **M.A.C.A. No.1274 OF 2011** **==========================** Dated this the 31[st ] day of October, 2016 ## **JUDGMENT** _Jyothindranath, J._ This appeal is preferred against award dated 18.01.2011 in O.P. (MV).No.81 of 2007 on the files of the Principal Motor Accidents Claims Tribunal, Kozhikode, with a delay petition as C.M.Appln.No.1936 of 2011. Claimant is the appellant. 2.After hearing the learned counsel for the appellant and Sri.Rajan P. Kaliyath, the learned counsel appearing for the insurance company and going through the affidavit and further keeping in mind that the delay is only for 87 days, we feel that the delay can be condoned. Hence, delay stands condoned. 3.Since the matter is of the year 2011, the appeal itself is considered for admission/disposal on consent of parties. **M.A.C.A.1274/2011** 2 4.The case of the appellant is that while he was riding a motor cycle bearing Reg.No.KL-11-P-6187, it was hit by a mini lorry bearing Reg.No.KL-11-H-4638 and he sustained very grievous injuries. Alleging negligence of the driver of the mini lorry, he moved a claim petition before the Tribunal for a total compensation of `4,00,000/- arraying the owner, driver and insurer of the said vehicle as respondents 1 to 3. The Tribunal awarded a sum of `3,22,821/-. Aggrieved by the quantum of compensation, this appeal is preferred. 5.Since there is no dispute regarding the negligence aspect and liability, the only question to be considered in this appeal is the quantum of compensation. 6.The learned counsel for the appellant submitted before us that here is a case where the appellant sustained very grievous injuries including avulsion of penis from the root as well as fracture of ribs. It is also the submission that the appellant was treated as inpatient for 80 days. Even though the case of the appellant was that he was working in a bakery and earning a monthly income of `7,000/-, the Tribunal considered only `3,000/-, for calculation purpose. It is also the **M.A.C.A.1274/2011** 3 submission that, he being a skilled worker, the Tribunal should have considered an income higher than an ordinary coolie. It is also the submission that even in the case of a coolie, who met with an accident in the year 2004, the Apex Court considered a notional monthly income of `4,500/- [ **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** . It is the further submission that the compensation, awarded on various heads, is also on a lower side. Hence, an interference by this Court is warranted. 7.The learned counsel appearing for the third respondentinsurance company submitted that here is a case where there is fracture of ribs. The Tribunal considered 55% disability. It is the submission that there is nothing to show that the earning capacity of the appellant was adversely affected by the injury. If that is so, the Tribunal should not have considered the whole disability for calculation purpose. At this juncture, the learned counsel for the appellant submitted that the disability was assessed by a medical **M.A.C.A.1274/2011** 4 board and the said certificate was accepted by the Tribunal. 8.After hearing the learned counsel and after going through the award and schedule attached to the same, we feel that the appeal can be disposed of, at this admission stage itself. 9.In this case, the Tribunal considered only a monthly income of `3,000/-. There is force in the submission of the learned counsel for the appellant that the income considered by the Tribunal is on a lower side. In this case, no positive evidence is adduced to show that the appellant is a bake man. Under such circumstances, only a notional income can be considered. But at the very same time, as submitted by the learned counsel, the income of a coolie who met with an accident in the year 2004 was considered by the Apex Court as `4,500/-. In this case, the accident occurred on 21.4.2006. Thus, it will be only just and proper to consider `5,000/- as monthly income of the appellant, for calculation purpose. Thus, towards loss of earning, the appellant will be entitled for an additional compensation of `12,000/(5000x6-18000). Towards extra nourishment, only a sum of `2,000/is seen awarded. It is also the admitted case that he was in the **M.A.C.A.1274/2011** 5 hospital for 80 days. Thus, he will be entitled for an additional compensation of `6,000/- on the head of extra nourishment. Towards bystanders expenses, the Tribunal awarded only a sum of `8,000/-by reckoning a daily expense of `100/-. By taking `200/- per day, the appellant will be entitled for an additional sum of `8,000/- on the said head. By considering `5,000/- as the monthly income, the appellant will be entitled for an additional compensation of `1,71,600/(5000x12x13x55/100-257400) on the head of permanent disability. The said amount awarded. Apart from the same, it can be seen that here is a case where a person aged 46 years sustained injuries. He was in the hospital for 80 days. The nature of the injury, place of the injury and further considering the fracture injury, we feel that the compensation awarded on the head of pain and suffering is also on a lower side. Thus, an additional sum of `10,000/- is awarded towards pain and suffering. Surely, the nature of the injuries will indicate that it will affect his marital/sexual life apart from the loss of amenities. No amount is seen awarded towards loss of amenities. Thus, on the combined head of adverse effect on his sexual life/marital life and loss **M.A.C.A.1274/2011** 6 of amenities, a sum of `50,000/- awarded. Thus, the appellant will be entitled for an additional compensation of `2,57,600/-. The said amount will bear 8% interest from the date of the petition till realisation. The insurance company shall deposit the said amount within two months from the date of receipt of a copy of this judgment. On such deposit, the Tribunal shall realise the additional court fee payable on the amount awarded as just compensation over and above the claim and the balance amount alone shall be released to the appellant. There will be no order as to costs. The appeal is disposed of, at the admission stage as stated above. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/K.P.JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.1274/2011** 7 **C.T. RAVIKUMAR, J.** **M.A.C.A.1274/2011** 8 **JUDGMENT September, 2010**