Andikkat Shihabudheen @ Shihab S/o. Abdu @ Abdulla v. Binu T.V., Faizal, ICICI Lombard Motor Insurance

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 14[TH] DAY OF OCTOBER 2022 / 22ND ASWINA, 1944 ``` ``` MACA NO. 1016 OF 2013 ``` ``` AGAINST THE AWARD DATED 21.07.2012 IN O.P(M.V) NO.787/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI ``` ## **`APPELLANT/PETITIONER:`** ``` ANDIKKAT SHIHABUDHEEN @ SHIHAB S/O. ABDU @ ABDULLA, ANDIKKAT HOUSE, ALATHOORPADI P.O, MALAPPURAM DISTRICT BY ADVS.SRI.BABU S. NAIR SRI.K.RAKESH ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1BINU T.V. S/O.THANKA, PARASSERI HOUSE, MODAPOIKA, VAZHIKKADAVU P.O, MALAPPURAM DISTRICT, PIN-679 333. 2FAIZAL, S/O.MOIDEENKUTTY, KAIMALLY, CHANDAPARAMBA, PANG P.O, MALAPPURAM DISTRICT, PIN- 679 338. 3ICICI LOMBNARD MOTOR INSURANCE, BRANCH OFFICE, MANJERI, MALAPPURAM DISTRICT, PIN 676 121 R3 BY BY ADV. SRI.LATHEESH SEBASTIAN ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD`** ``` ON 14.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1016 of 2013 ``` ``` 2 ``` ## **`JUDGMENT`** ``` Dated this the 14[th] day of October, 2022 ``` This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Manjeri (for short ‘the Tribunal’) on 21.07.2012 in O.P(M.V) No.787/2009. The appellant is the petitioner before the Tribunal in the above original petition. 2. Sri.Rakesh K, the learned counsel for the appellant urged that the Tribunal failed to award reasonable compensation under various heads of claim. 3. Petitioner had sustained injuries when the motor cycle in which he was pillion riding was dashed by a bus bearing registration No. KL 10K 8530 at Padaparamba on 02.12.2008. He had sustained deep lacerated wound on the right sole with the tendon and muscles exposed. His skin and soft tissue became gangrenous. He was treated as inpatient for 53 days and the treatment provided was excision and reconstruction of the skin. He had an expenditure of Rs.1,32,920.55 for his treatment. Seeking for a sum of Rs.5,00,000/- as ``` M.A.C.A.No.1016 of 2013 ``` ``` 3 ``` compensation the above original petition was filed before the Tribunal. The accident was alleged as occurred due to rash and negligent driving of the bus by its driver who was arrayed in the original petition as the 1[st] respondent. The registered owner and the insured of the offending vehicle were also arrayed in the original petition as the 2[nd] and 3[rd] respondents. Alleging that respondents 1 to 3 are jointly and severally liable to compensate him the Original Petition was filed. 4. 1[st] and 2[nd] respondents were served with notice in the Original Petition but they did not turn up and were declared ex parte. 3[rd] respondent has filed written statement admitting the insurance coverage of the bus with them at the relevant time of the accident. It was contended that since the driver, owner and insurer of the motor cycle were not arrayed as respondents in the claim petition, it is bad for non-joinder of necessary parties. 5. Evidence adduced by the petitioner before the Tribunal consists of Exts.A1 to A7 and Ext.X1. On appreciation of the evidence as above the Tribunal found that the petitioner ``` M.A.C.A.No.1016 of 2013 ``` ``` 4 ``` is entitled to get compensation from the respondents and arrived at Rs.2,43,541/- as the sum payable as compensation. The 3[rd] respondent insurer was directed to deposit the amount with interest at the rate of 9% per annum from the date of the original petition till the date of realisation. 6. According to Sri.Rakesh.K, the learned counsel for the appellant, the monthly income for the purpose of computation of compensation was fixed by the Tribunal notionally as Rs.3,000/-, which in view of **Ramachandrappa vs. Royal Sundaram Alliance Insurance Co.Ltd. [(2011)** **13 SCC 236]** is too low. According to him, the fixation needs modification in the light of the fixation adopted by the Apex Court in **Ramachandrappa** Supra. The petitioner was inpatient for 53 days following the accident, but the Tribunal has awarded only Rs.5,300/- as compensation under the head bystander expenses which is low and inadequate. It was further contended that just and reasonable compensation has not been awarded by the Tribunal for pain and suffering, transportation expenses and extra nourishment. According to him the Tribunal ``` M.A.C.A.No.1016 of 2013 ``` ``` 5 ``` had assessed compensation for disability by adopting an incorrect multiplier. According to him 18 is the correct multiplier. 7. The learned counsel for the appellant has also pointed out that the Tribunal failed to award compensation under the head loss of amenities and enjoyments in life. The learned counsel for the 3[rd] respondent has contended on the contrary that compensation having been awarded under the head disfiguration, the petitioner is disentitled to get compensation under the head loss of amenities. 8. It is noticed on a reading of the impugned award that the Tribunal had fixed the monthly income of the appellant notionally as Rs.3,000/-. True that the appellant failed to adduce evidence to establish his job and monthly income. The accident being occurred in the year 2008 a sum corresponding to the one taken by the Apex Court in **Ramachandrappa** supra for a coolie worker in the year 2004 could be taken. Therefore, Rs.6,500/- is fixed as the monthly income. This Court is inclined to take loss of earning for six months and grant Rs.39,000/- ``` M.A.C.A.No.1016 of 2013 ``` ``` 6 ``` towards loss of earnings. Under the head bystander expenses the Tribunal has awarded Rs.5,300/- by taking Rs.100/- per day for 53 days’ inpatient treatment. This Court is inclined to modify the amount by fixing Rs.200/- per day. When compensation is fixed with Rs.200/- as the daily sum for 53 days, the sum payable under the head would be Rs.10,600/-. Under the head transportation expenses the Tribunal has awarded only Rs.750/-. It is pertinent to note that the petitioner was a resident of Malappuram District and he had availed treatment from two different hospitals. Initially he had only out patient treatment and lateron he was treated as inpatient for 53 days. Therefore this Court is inclined to modify the transportation expenses to Rs.2,000/-. Though claim was made for compensation under the head extra nourishment the Tribunal failed to award any sum. This Court is inclined to award Rs.7,950/- by taking Rs.150/- per day for 53 days. 9. Under the head pain and suffering the Tribunal has awarded only Rs.9,000/-. This Court has noticed from Paragraph 7 of the impugned award that the petitioner had ``` M.A.C.A.No.1016 of 2013 ``` ``` 7 ``` sustained a deep lacerated wound on the right sole with tendon and muscles exposed. The skin and soft tissue became gangrenous and therefore, the treatment as inpatient prolonged for 53 days. Excision and reconstruction of the skin were done at the hospital as part of the treatment. Taking into account of those aspects, Rs.9,000/- awarded by the Tribunal under the head pain and suffering appears to this Court inadequate. Therefore, Rs.15,000/- is awarded. Since compensation has been awarded under the heads disfigurement and permanent disability, this Court is declined to award any compensation under the head loss of amenities. Compensation for disability, when re-assessed on the basis of the monthly income fixed as Rs.6,500/- and adopting the correct multiplier of 18, the amount payable as compensation would be Rs.1,54,440/- (6500x12x18x11/100). Rs.67,320/- awarded by the Tribunal when deducted from the sum now arrived at, a sum of Rs.87,120/- is payable additionally. 10. Therefore, the total additional compensation payable in the reassessment is Rs.1,28,620/- (Rupees One lakh ``` M.A.C.A.No.1016 of 2013 ``` ``` 8 ``` Twenty eight Thousand Six Hundred and Twenty only) which would carry interest at the rate of 7.5% per annum from the date of the Original Petition till the date of realisation. 11. The learned counsel for the 3[rd] respondent has pointed out that this Court vide order passed on 19.01.2022 has exonerated the 3[rd] respondent from paying interest for 208 days of delay occurred in filing the appeal on hand. In the above circumstances, the 3[rd] respondent is exempted from paying interest for the additional compensation for 208 days. 12. The 3[rd] respondent shall pay the compensation originally awarded by the impugned award (if not already paid) and the additional compensation now arrived at, within a period of two months from the date on which a copy of the judgment is received by it. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH** **JUDGE** NAB