Akkara Rasheed v 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 ANIL K.NARENDRAN** **THURSDAY, THE 3RD DAY OF AUGUST 2017/12TH SRAVANA, 1939** **MACA.No. 2041 of 2008 ( )** **-------------------------OP(MV).NO. 641/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI ---------------------** **APPELLANT/PETITIONER:** **---------------------------------------** **AKKARA RASHEED, AGED 32 YEARS, S/O. UMMER, AKAMBADOM AMSOM, ELAMBILAKODE DESOM, P.O. ERANJIMANGAD.** ## **BY ADV. SRI.P.SAMSUDIN** **RESPONDENT/3RD RESPONDENT:** **--------------------------------------------------** **UNITED INDIA INSURANCE CO. LTD., TIRUR, MALAPPURAM DISTRICT.** **BY ADV. SRI.RAJESH THOMAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** **-----------------------------------------------** M.A.C.A.No.2041 of 2008 **-----------------------------------------------** Dated this the 3[rd] day of August, 2017 ## **J U D G M E N T** ## Ravikumar, J. This appeal seeking enhancement of quantum of compensation is filed by the injured petitioner. He sustained injuries in an accident occurred on 25.1.1996 at about 4.45 p.m. He was a passenger in a jeep bearing registration No.KL-10/C5787 driven by the 4[th] respondent. The accident occurred at a place called Munduparamba in Valavannoor-Edavanna road. A Metadoor lorry bearing registration No.KL-10/A-1778, driven by the 1[st] respondent dashed against the said jeep. The appellant sustained severe injuries and there upon he was initially taken to K.P.M. Hospital, Malappuram and from there, shifted to Kovai Medical College Hospital, Coimbatore. He remained as an inpatient for a total period of 23 days under different spells and the injuries sustained in the accident resulted in permanent disability. In O.P.(MV)No.641/02 filed under Section 166 of the Motor Vehicles Act, 1988, before the Motor Accidents Claims Tribunal-Manjeri, he claimed a sum of Rs.3 lakhs as M.A.C.A.No.2041 of 2008 :-2-: compensation and as per the impugned award, the Tribunal assessed a compensation of Rs.1,58,188/- and rounded it off as Rs.1,58,200/-. The said amount was ordered to carry interest at the rate of 6% per annum from the date of petition till realisation along with cost of Rs.1,000/-. It is seeking enhancement of the said quantum of compensation that this appeal has been filed. 2. We have heard the learned counsel for the appellant and the also the learned counsel appearing for the respondent insurance company. 3. There is no dispute regarding the liability to indemnify the insured owner of the offending vehicle. Hence the sole question to be decided is whether or not the appellant is entitled to get enhanced compensation. 4. The appellant raised various grounds to mount challenge against the award. It is the contention that the Tribunal had erroneously fixed the monthly income as Rs.1,500/as against a claim of Rs.3,000/-. In the claim petition it was averred that the appellant was aged 26 years at the time of the accident and was earning Rs.3,000/- as monthly income as a M.A.C.A.No.2041 of 2008 :-3-: loading and unloading worker. No oral evidence was adduced by either parties before the Tribunal. Obviously, no evidence was let in by the petitioner to prove his occupation and income. Therefore, the notional fixation of the monthly income by the Tribunal cannot be said to be erroneous, warranting an interference. But at the same time, fixation of Rs.1,500/- as monthly income for calculation purpose invites interference taking into account various aspects. The accident occurred on 25.1.1996 and the appellant was then aged 26 years. Taking into account the year of the accident, the age of the appellant at the time of the accident and also bearing in mind 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 the monthly income, though the accident involved in that case occurred later than the date of the accident involved in this case, we are of the considered view that the monthly income of the appellant, for calculation purpose can be safely fixed as Rs.2,500/-. Accordingly, it is fixed. Ext.X1 is the disability certificate of the appellant. Going by the same, the extent of permanent M.A.C.A.No.2041 of 2008 :-4-: disability incurred by the appellant owing to the injuries sustained in the accident is, 20%. The entire percentage was taken by the Tribunal for calculation purpose. The multiplier was rightly adopted with reference to the age of the injuredappellant. In such circumstances, a re-assessment of compensation for permanent disability is required only by substituting the re-fixed monthly income. On such calculation, the amount payable towards compensation for permanent disability will be Rs.1,02,000/- (2,500x12x17x20/100). The Tribunal has already granted Rs.61,200/- and after deducting the said amount, the appellant is entitled to get an amount of Rs. **40,800** /- additionally under that head. The Tribunal fixed the period of loss of earning as 3 months and an amount of Rs.4,500/- was granted towards compensation for loss of income. In this context it is relevant to refer to the nature of injuries sustained by the appellant. Ext.A2 is the wound certificate. Going by the same, he sustained the following injuries ; “fracture mid shaft right humerous, supracondylar fracture left humerous, comminuted supracondylar fracture right humerous with fracture proximal ulna, traumatic amputation M.A.C.A.No.2041 of 2008 :-5-: at the level of MP left ring finger, fracture proximal phalanx left ring finger, fracture right distal-radius.” 5. As noticed herein-before, going by Ext.X1 disability certificate, the said injuries resulted in permanent disability to the extent of 20%. He remained as an inpatient for a period of 23 days. Taking into account all such factors, especially the nature and impact of the injuries, we are of the view that the period of loss of earning ought to have been fixed as 5 months. Based on the re-fixed monthly income for the aforesaid period, the appellant is entitled to get Rs. **8,000** /- (12,500-4,500) additionally towards loss of income. 6. Towards transportation to hospital, the Tribunal granted only Rs.500/-. At the same time, taking into account that the appellant had 5 reviews, we are of the view that towards transportation expenses an amount of Rs. **1,500** /- can be granted additionally. Towards the combined heads of expenses for extra nourishment and for bystander's service, an amount of Rs.1,500/- was granted by the Tribunal. Taking into account the year of the accident and the number of days of hospitalisation, we are of the view that at the rate of Rs.75/- per day for a period ## M.A.C.A.No.2041 of 2008 :-6-: of 23 days, the appellant is entitled to get Rs.1,725/- towards bystanders expenses. For the same period, at the rate of Rs.50/per day, the appellant is entitled to get an amount of Rs.1,150/under the head extra nourishment. In such circumstances, under the said combined heads, the appellant is entitled to get an additional amount of Rs. **1,375** /- (2,875-1,500). Towards loss of amenities, the Tribunal has not granted any amount. Taking into account the nature of injuries and their impact as noticed hereinbefore, we are of the view that the appellant is entitled to get Rs. **15,000** /- under that head. It is granted. In the said circumstances, this appeal is disposed of as hereunder:- The appellant is granted a total additional compensation of Rs. **66,675** /- in this appeal and it will carry interest at the rate of 8% per annum from the date of petition till realisation. It is made clear that in the light of the order passed by this Court on 14.9.2015, while condoning the delay of 654 days in filing the appeal, the appellant is not entitled to get interest for the said period. Since the insurance coverage of the vehicle is not in dispute, the respondent insurer shall deposit the said amount M.A.C.A.No.2041 of 2008 :-7-: along with interest at the aforesaid rate, before the Tribunal, within a period of 2 months from the date of receipt of a certified copy of this judgment. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR** **JUDGE** Sd/- **JUDGE** **ANIL K.NARENDRAN** ami/22.8.17 //True copy// P.A.to Judge