Babu Mathew v. O.P. Ashraf, B. Musthafa & M/S New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 15TH DAY OF JUNE 2020 / 25TH JYAISHTA, 1942 MACA.No.2013 OF 2007** **AGAINST THE AWARD DATED 09-02-2007 IN OP(MV) No.1123/2001 OF** **MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY** ## **APPELLANT:** **BABU MATHEW,S/O. MATHEW,AGED 45 YEARS, C/O GEETHA TOURIST,P.O.CHIRACKAL, KANNUR. BY ADV. SRI.A.K.ABDUL AZEEZ** ## **RESPONDENTS:** |**1**|**O.P.ASHRAF,S/O KHADER,OTHAYOTH PUTHIYA PURAYIL,**| |---|---| ||**P.O.KUTTIATTOOR, KANNUR DISTRICT**| ||**(DRIVER OF LORRY KLC 6109)**| |**2**|**B.MUSTHAFA,S/O. AMMEDKUTTY,**| ||**ASHYA MANZIL,P.O.NARATH, KANNUR**| ||**(OWNER OF LORRY KLC 6109)**| |**3**|**M/S. NEW INDIA ASSURANCE CO. LTD.,**| ||**NEAR BUS STAND, KANNUR**| ||**(INSURER OF LORRY KLC 6109**| ||**POLICY NO. 3176080178299)**| ||**R3 BY ADV. SRI.A.A.ZIYAD RAHMAN**| ||**R3 BY ADV. SRI.KKM.SHERIF**| ||**R3 BY ADV. SRI.LAL K.JOSEPH**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO.2013/2007 2 ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 15[th] day of June, 2020**_ The claimant in OP(MV) No.1123/2001 of the Motor Accidents Claims Tribunal, Thalassery, is in appeal under Section 173 of the Motor Vehicles Act, 1988, aggrieved by Award dated 09.02.2007 therein. 2. The appellant filed the OP(MV) contending that on 15.04.2000, he was driving a motorcycle and when he reached Chirakkal Kambrathu Eda, a lorry driven by the 1[st] respondent came in a rash and negligent manner overtaking another vehicle and the lorry hit the motorcycle of the appellant. The appellant sustained grievous injuries and was taken to Koyili Hospital, Kannur. Due to the seriousness of the injuries, he was referred to Hospital with more facilities and was taken to City Hospital, Mangalore. MACA NO.2013/2007 3 The appellant was thus hospitalised from 15.04.2000 till 28.05.2000. The appellant was subjected to surgery. 3. The appellant further stated that at the time of accident, he was aged 40 years, was working as a Chief Chef in a Hotel and was drawing a monthly income of not less than ₹10,000/- per month. The appellant therefore claimed compensation of ₹5,00,000/-. 4. Respondents 1 and 2 filed a joint written statement admitting the accident. There was no negligence on the part of the 1[st] respondent, it was stated. On the other hand, the appellant was negligent. The 3[rd] respondentinsurer also filed a written statement admitting the insurance policy of the offending lorry. But, denied the negligence on the part of the driver thereof. 5. Appellant produced Exts.A1 to A11 and respondents produced Ext.B1. Ext.X1 disability certificate was marked as third party exhibit. Appellant-claimant MACA NO.2013/2007 4 ## examined himself as PW1. 6. The Tribunal, after appreciating the evidence, awarded ₹2,43,000/- as just and fair compensation under the following heads:- |1.|Loss of earning|₹15,000/-| |---|---|---| |2.|Transportation expense|₹20,000/-| |3.|Medical expense|₹1,02,978/-| |4.|Bystanders expense|₹13,500/-| |5.|Extra nourishment|₹3,000/-| |6.|Pain and sufferings|₹30,000/-| |7.|Loss of earning capacity|₹58,500/-| ||Total|₹2,42,978/-| ||Rounded to|₹2,43,000/-| The Tribunal awarded 7% interest. Respondents 1 to 3 are held jointly and severally liable. The 3[rd] respondent was directed to make the payment. Aggrieved by the insufficiency of the compensation awarded, the appellant is before this Court. 7. The learned counsel for the appellant submitted MACA NO.2013/2007 5 that though the appellant produced Annexure-A9 salary certificate evidencing that he is receiving not less than ₹10,000/- as monthly salary, the Tribunal erroneously assessed the monthly income of the appellant as ₹2,500/-. The Disability Certificate in respect of the appellant proved that he has suffered 39% physical disability. However, the Tribunal wrongly assessed the functional disability of the appellant as 13%. 8. The learned counsel for the appellant further argued that the Tribunal gave compensation towards loss of earning only for a period of six months, which is quite insufficient. The appellant was an in-patient for more than 90 days. He was rendered immobile for a much longer period to do any work. Therefore, the amount of ₹15,000/granted by the Tribunal towards loss of earning is much on a lower side. Taking into account the requirement of assistance of a bystander during the long period of his MACA NO.2013/2007 6 treatment, the amount of ₹13,500/- granted for bystander expenses is too low. The counsel further argued that in spite of production of Annexure-A7 bill evidencing an expenditure of ₹61,476/- towards transportation, the Tribunal allowed only ₹20,000/-. This is illegal. The rejection by the Tribunal of a claim of ₹17,100/- incurred as per Ext.A5 Medical Bills, is unreasonable. The Tribunal did not give any compensation towards damage to clothing and awarded a paltry sum of ₹30,000/- towards compensation for pain and suffering. The compensation amount is therefore liable to be substantially increased, argued the counsel. 9. The Standing Counsel appearing for the 3[rd] respondent vehemently opposed the arguments of the appellant. The Standing Counsel pointed out that the appellant did not prove his alleged income of ₹10,000/- per month. No independent witness was examined to substantiate his income. The assessment of the Tribunal as MACA NO.2013/2007 7 regards the monthly income of the appellant at ₹2,500/- is not liable to be interfered with. The Tribunal also took into consideration the physical status of the appellant and rightly fixed appellant's functional disability as 13%. No interference is warranted with the said finding of the Tribunal. The Tribunal has considered all the heads under which the appellant can be compensated and concluded that ₹2,43,000/- will be just and fair compensation. The appeal filed against the Award is without any merit and it is liable to be dismissed. 10. I have heard the learned counsel for the appellant and the learned Standing Counsel for the 3[rd] respondent. 11. As regards the findings of the Tribunal on the income of the appellant, it is to be noted that the accident occurred in the year 2000. In the light of the guidelines given by the Hon'ble Apex Court in _**Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Co.**_ MACA NO.2013/2007 8 _**Ltd.** [(2011) 13 SCC 236]_ , the notional income of a manual labourer having no proof of income can be taken as ₹2,500/during the year 2000. In the present case, the appellant claimed that he is a Chief Chef in a Hotel. Though the appellant produced Ext.A9 salary certificate allegedly issued by the Proprietress of the Hotel, the Tribunal did not rely on the said salary certificate since there was no evidence that under what capacity, the signatory has signed in Ext.A9. However, I find that there is no serious dispute regarding the avocation of the appellant as a Chief Cook. During the year 2000, taking into account the general wage structure then prevailing, a Chief Cook would have received a monthly income of ₹5,000/-. Therefore, the notional monthly income of the appellant is to be fixed as ₹5,000/-. 12. The Tribunal has granted loss of earnings for a period of six months taking into account the nature of injuries and treatment undergone by the appellant. MACA NO.2013/2007 9 Regarding the period for which the appellant suffered loss of earning, the multiple surgeries and the period during which the appellant had to be treated as an in-patient in hospital from the year 2000 to 2005 are relevant. The appellant had to be treated as in-patient for more than 90 days during the following periods, spanning from year 2000-2005:- |15.04.2000|to|28.05.2000|-|44 days| |---|---|---|---|---| |13.09.2000|to|26.09.2000|-|14 days| |01.12.2000|to|03.12.2000|-|3 days| |31.01.2001|to|02.02.2001|-|3 days| |27.04.2002|to|08.05.2002|-|12 days| |07.06.2002|to|09.06.2002|-|3 days| |02.09.2002|to|05.09.2002|-|4 days| |08.02.2005|to|16.02.2005|-|9 days| Therefore, it would only be reasonable to assume that the appellant indeed suffered a loss of earning at least for a MACA NO.2013/2007 10 period of 12 months. Therefore, the appellant will be entitled to ₹60,000/- (₹5,000 x 12 months) as compensation towards loss of earning. Deducting the amount of ₹15,000/- already awarded by the Tribunal under this head, the appellant should be eligible for an additional compensation of **₹45,000/-** towards loss of earnings. 13. As regards compensation for transportation, the Tribunal granted ₹20,000/-. The appellant had to be admitted in hospital eight times for surgeries and other treatments. For consultations preceding and reviews following, in respect of the aforesaid eight sessions itself, the appellant might have travelled by taxi for 24 times. This will be apart from consultations with Doctors for treatment as an outpatient. Therefore, the amount of ₹20,000/- awarded by the Tribunal is much on a lower side. The appellant should be held eligible for ₹30,000/- towards compensation for transportation expenses. Accordingly, the appellant will be MACA NO.2013/2007 11 entitled to an additional compensation of **₹10,000/-** . 14. The appellant claimed the actual medical expenses incurred by him producing relevant medical bills. However, the Tribunal, while allowing ₹1,02,978/-, rejected to accept Ext.A5 bill for ₹17,100/- produced by the appellant for the reason that those receipts produced by the appellant appear to be new. The fact remains that those bills were issued by one Dr.Shantharam Shetty in respect of treatment during the years 2000-2005. Perhaps, those bills might have been issued after 2005 by the Physician at appellant's request. Considering the long period of treatment undergone by the appellant, it would be unfair to deny compensation for actual medical expenses on the premise that the bills produced appear to be new. Therefore, it has to be held that the appellant is entitled to an additional compensation of **₹17,100/-** towards medical expenses incurred under Ext.A5 bill. MACA NO.2013/2007 12 15. The Tribunal towards extra nourishment, granted only ₹3,000/- to the appellant. Considering the long duration of treatment during which the appellant had to undergo multiple surgeries, this Court is of the opinion that the Tribunal ought to have awarded ₹6,000/- to the appellant towards towards extra nourishment. Accordingly, the appellant is held to be entitled to **₹3,000/-** towards additional compensation for extra nourishment. 16. It is the definite case of the counsel for the appellant that the amount of ₹30,000/- awarded by the Tribunal towards compensation for pain and suffering is too meager in the facts of the case. It has come out in evidence that the appellant has suffered serious crush injury right leg, lower half with compound fracture tibia. The appellant had to undergo surgeries three times. He was admitted in hospital for more than eight times. The treatment given to the appellant is noted as wound debridement, external MACA NO.2013/2007 13 fixator application and flap cover. External fixator had to be removed later under general anesthesia. At the time of discharge, the appellant was advised for non weight bearing crutch walking. The appellant had fracture of both bones middle one third right leg with infected non-union discharging sinus over anteromedial aspect of middle third leg. Removal of interfragmentary screws and ilizarov fixator application had to be done under spinal anasthesia. Even after eight months of the accident, the appellant had to be admitted in hospital due to severe pain in one of the lower pin on weight bearing. Even after nearly five years, the appellant had to be given treatment of sequestrectomy right tibia done under spinal anasthesia, on 08.02.2005. The history of the surgical treatment and consequential complications suffered by the appellant would indeed show that the compensation for pain and suffering of ₹30,000/awarded by the Tribunal is too low. This Court is of the MACA NO.2013/2007 14 opinion that the appellant should be entitled to a gross amount of ₹80,000/- towards compensation for pain and sufferings. Accordingly, it is held that the appellant will be eligible for an additional compensation of **₹50,000/-** under this head. 17. This Court is also of the opinion that the percentage of disability fixed by the Tribunal is without regard to the actual functional disability of the appellant. The Medical Board, after examining the appellant, held that the appellant is having 39% Orthopaedical disability. The Tribunal held that the 39% is only the limp disability and the Tribunal fixed permanent whole body disability at 13%, i.e., one third of the limb disability. The Hon'ble Apex Court has held in the judgment in _**Raj Kumar v. Ajay Kumar and another** [(2011) 1 SCC 343]_ that the Tribunal has to consider the impact of the disability whether limb disability or whole body disability, on the loss of future earning capacity MACA NO.2013/2007 15 of the injured. This is an independent exercise to be done by the Tribunal taking into account the opinion of the Medical Board as well as the impact of the injuries on the ability of the injured to do his work in future. 18. The materials available in the present case would show that the Orthopaedic injury suffered by the appellant is serious and he will not be able to continue his job as Chief Chef in a Hotel. The appellant himself has adduced evidence and stated that he is not working as Cook in the Hotel now due to the injuries. Even for doing any other work requiring physical exertion, the appellant will be substantially inhibited by his 39% orthopaedical disability. In the circumstances, on a modest estimate, the functional disability of the appellant should be taken as 30%. Consequentially, the appellant should be held entitled to an amount of ₹2,70,000/- (₹5,000 x 12 x 14 x 30/100) as compensation for disability. The Tribunal has already MACA NO.2013/2007 16 awarded ₹58,500/- under this head. The appellant therefore will be held entitled to an additional compensation of **₹2,11,500/-** as compensation for disability. 19. The appellant has not been granted any compensation for damage to clothing. In the facts of the case and the year of accident being 2000, the appellant will be entitled to **₹750/-** towards damage to clothing. 20. Accordingly, the appellant will be entitled to total additional compensation ₹3,37,350/- under the following heads:- |(i)|Additional compensation towards loss of|₹45,000/-| |---|---|---| ||earnings (₹60,000 minus ₹15,000/- already|| ||awarded by the Tribunal)|| |(ii)|Additional<br>compensation<br>towards|₹10,000/-| ||transportation expenses (₹30,000/- minus|| ||₹20,000/- already awarded by the Tribunal)|| |(iii)|Additional compensation towards medical|₹17,100/-| ||expenses|| MACA NO.2013/2007 17 - (iv) Additional compensation towards extra ₹3,000/nourishment (₹6,000/- minus ₹3,000/- already awarded by the Tribunal) - (v) Additional compensation towards pain and ₹50,000/suffering (₹80,000/- minus ₹30,000/- already awarded by the Tribunal) - (vi) Additional compensation towards disability ₹2,11,500/(₹2,70,000/- minus ₹58,500/already awarded by the Tribunal) - (vii) Compensation for damage to clothing ₹750/- **Total** ## **₹3,37,350/-** The additional compensation will also carry interest at the rate of 7% from the date of the OP(MV). The 3[rd] respondent is directed to pay the additional compensation of **₹3,37,350/-** to the appellant within a period of one month. The appeal is partly allowed. Sd/- ## **N. NAGARESH, JUDGE** aks/12/06/2020