Anwar Sadath v. The National Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 25TH DAY OF FEBRUARY 2016/6TH PHALGUNA, 1937 MACA.No. 2059 of 2007 ( ) -------------------------- AGAINST THE AWARD IN OPMV 86/2003 of M.A.C.T OTTAPPALAM DATED 17-07-2006 APPELLANT/PETITIONER:: ------------------------------------- ANWAR SADATH, AGED 31 YEARS, S/O.ABBAS, RESIDING AT KARUPPAN VEETTIL, S.R.K.NAGAR, OTTAPALAM, PALAKKAD DISTRICT. BY ADVS. SRI.SANTHEEP ANKARATH SMT.S.SUJA ## RESPONDENT/3RD RESPONDENT:: -------------------------------------------------- THE NATIONAL INSURANCE CO. LTD., KOLLANOR DEVASY SMARAK BUILDING, ROUND EAST, THRISSUR, THRISSUR DISTRICT. BY ADV. SRI.E.M.JOSEPH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -------------------------------------------------M.A.C.A.No.2059 OF 2007** **-------------------------------------------------DATED THIS THE 25[th] DAY OF FEBRUARY, 2016** ## **JUDGMENT** ## **ANIL K.NARENDRAN, J** . The appellant is the claimant in OP(MV)No.86/2003 on the file of the Motor Accident Claims Tribunal, Ottappalam, an application under Section 166 of the Motor Vehicles Act. The appeal is for enhancement of the compensation awarded by the Tribunal in respect of injuries sustained to the appellant, pursuant to the road traffic accident occurred on 5.6.2002. 2. The factual position revealed from the proceedings is that, while the appellant was riding motor cycle bearing Registration No.KL-9/H-8012 from Chelakkara to Pazhayannur, it was hit by a jeep bearing Registration No.KL-8/C-4068 driven, owned and insured by respondents 1 to 3 before the Tribunal, as a result of which the appellant sustained serious injuries, which led to the claim petition filed by him before the Tribunal, seeking to compensate the loss. 3. Before the Tribunal respondents 1 and 2 filed written MACA No.2059/2007 -2- statement contending that the accident had occurred due to the negligence on the part of the appellant himself. The 3rd respondent has filed a written statement admitting the insurance coverage of the jeep. The nature of contention raised by the respondent Insurance Company was mainly on age, income, nature of injury, quantum and negligence. 4. The evidence adduced before the Tribunal consists of oral testimony of PWs 1 and 2, Exts.A1 to A16 produced and marked on the side of the appellant and Exts.B1 and B2 produced and marked on the side of the respondents. 5. Based on the relevant materials on record, the Tribunal arrived at a finding that the accident occurred due to the negligence on the part of the driver of the jeep. 6. Referring to serious consequences resulted because of the injury sustained, a total sum of 4,50,000/- was claimed by₹ the appellant. Awarding amounts under different heads, total compensation was fixed by the Tribunal as 1,57,378/-, which₹ was directed to be satisfied with interest @6% per annum from the date of petition. The liability was mulcted upon the shoulders MACA No.2059/2007 -3- of the respondent Insurance Company. 7. Inadequacy of compensation awarded by the Tribunal is the subject matter of challenge in this appeal. 8. Heard the learned counsel for the appellant and also the learned counsel appearing for the respondent Insurance Company. 9. The amounts awarded by the Tribunal under different heads as given in paragraph 13 of the Award are as follows : Medical expenses : ₹ 66,078/Bystander's expenses: ₹ 4,500/Travelling expenses : ₹ 3,000/Extra nourishment : ₹ 3,500/Damage to clothes : ₹ 500/Loss of disability : ₹ 64,800/Pain and suffering : ₹ 15,000/----------Total : 1,57,378/-₹ 10. At the time of accident, the appellant was aged 27 years. He claimed a monthly income of 25,000/- on the₹ strength of Ext.A9 letter from M/s.Ali Abdulla Estt. Ext.A7 is the relevant page of his passport. Though the appellant was examined as PW1, no reliable materials were produced to prove MACA No.2059/2007 -4- his alleged salary and also his qualification. It was in such circumstances, the Tribunal reckoned only a notional monthly income of 9,000/- for the purpose of calculating disability₹ compensation. However, the Tribunal deducted 1/3rd of the said amount towards his personal expenses and reckoned only ₹ 6,000/- as his monthly income for calculating compensation under different heads. Since deduction of personal and living expenses is impermissible in a claim made by the injured, for calculating compensation under different heads, the monthly income of the appellant has to be reckoned as 9,000/-. ₹ 11. The injuries sustained by the appellant, the treatment he had undergone, etc., as disclosed in Para.8 of the Award reads as follows: “In the accident, the petitioner sustained type III A compound fracture BB (R) leg, laceration Rt. Foot. Ext.A5 is the copy of wound certificate of the petitioner herein issued from Divine Medical Centre, Wadakkanchery, where he was admitted initially, immediately after the accident, the fracture and other laceration wounds are mentioned in Ext.A5. Subsequently, he was admitted in the West Fort Hospital, Thrissur. Ext.A10 is the CT scan report. Ext.A12 MACA No.2059/2007 -5- is the disability certificate issued to him from the doctor of the Medical College Hospital, Thrissur. The petitioner was treated with wound debridement and calcaneal fracture. Later on interlocking nailing done and discharged on 28.6.2002. He was readmitted on 16.11.2002 with infection in operation site. He was treated with antibiotics. He was discharged on 21.11.2002. He was readmitted on 23.2.2004 for removal of implant and discharged on 2.3.2004. The doctor examined the patient on 14.11.2005 to assess the disabilities. It is noted as pain in (R) leg on walking some distance, recurrence pain swelling and infection, stiffness of (R) ankle and knee. On examination, he has malunited fracture of fibula and tibia, there was some evidence of chronic infection in Rt. Leg and stiffness of (R) ankle. It is noted as malunited fracture base of 5[th] toe proximal phalanx. He has got temporary disability of 45% for the 1[st] 6 months, 20% for next 6 months and permanent disability is assessed as 10%. However, considering all these facts, the petitioner can be considered as 5% whole body disability. ….” 12. We notice that in Ext.A12, the permanent disability suffered by the appellant has been assessed as 10%. However, the Tribunal reckoned only 5% permanent disability. When the Doctor who issued Ext.A12 disability certificate was examined as PW2 and the appellant himself was examined as PW1, we find MACA No.2059/2007 -6- absolutely no justification on the part of the Tribunal in reducing the percentage of disability as 5%, instead of 10% as certified in Ext.A12 disability certificate. Therefore, for the purpose of calculating disability compensation, the percentage of disability has to be reckoned as 10% as certified in Ext.A12. At the time of accident, the appellant was aged 27 years. The Tribunal reckoned the multiplier as '18' which is against the principle laid down by the Apex Court in **Sarala Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** . The proper multiplier applicable is '17'. In the result, the total compensation payable under the head permanent disability is re-fixed as 9000x12x17x10/100=1,83,600/-. The Tribunal awarded a sum of ₹64,800/- under this head. In the result, the appellant will be entitled for an additional compensation of **₹1,18,800/-** under this head. 13. The treatment undergone by the appellant, which includes inpatient treatment for a period of 30 days is also mentioned in the Award passed by the Tribunal. 14. Towards pain and suffering, the Tribunal awarded MACA No.2059/2007 -7- ₹15,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, we deem it appropriate to re-fix the compensation under the head pain and suffering to ₹20,000/-, resulting in an additional compensation of ₹ **5,000/-** . 15. Towards loss of earning, the Tribunal has not awarded any amount. Considering the nature of injuries sustained and the treatment the appellant had undergone, we find it appropriate to award loss of earning for a period of six months. In the result, the appellant will be entitled for a sum of ₹ **54,000/-** under this head. 16. Though the appellant sustained serious injuries resulting in permanent disability of 10% as certified in Ext.A12, the Tribunal has not granted any amount under the head loss of amenities. Considering the nature of injuries sustained and the disability that had arisen therefrom we deem it appropriate to award an amount of ₹ **20,000/-** under the head loss of amenities. 17. Thus the appellant will be entitled for an additional compensation of **₹1,97,800/-,** which shall be satisfied with MACA No.2059/2007 -8- interest @9% per annum from the date of petition, till satisfaction. Since the policy is admitted, we direct the Insurance Company to deposit the amount within one month from the date of receipt of a certified copy of this judgment. The appeal is disposed of as above. Sd/- ## **P.R.RAMACHANDRA MENON** , **JUDGE** **Sd/ANIL K.NARENDRAN, JUDGE** dsn True copy P.S.to Judge