Babu v. Moideen, Jamsheed, and Royal Sundaram Alliance 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 MONDAY, THE 17TH DAY OF JULY 2017/26TH ASHADHA, 1939 ## MACA.No. 2794 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 678/2010 of M.A.C.T. TIRUR DATED 25-08-2012 APPELLANT(S)/PETITIONER IN THE O.P.: --------------------------------------------- BABU, S/O.SAMI KODAKKALLIMMEL HOUSE, MAVOOR PANCHAYATH, KOZHIKODE DISTRICT. BY ADV. SRI.K.VIDYASAGAR RESPONDENT(S)/RESPONDENTS IN THE O.P.(MV): -------------------------------------------------- ## 1. MOIDEEN S/O. KUNHIMUHAMMED, 24/10, CHAKKERI HOUSE, KOORIYAD, VENGARA P.O., MALAPPURAM, PIN-676304. 2. JAMSHEED S/O. AHAMED KUTTY, 9/399, PARAMMEL HOUSE, PARUTHIPARA, FEROKE COLLEGE P.O., KOZHIKODE, PIN-673632. 3. ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD. - 46, WHITE ROAD, CHENNAI P.O., PIN-600014. R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.** ## **========================== M.A.C.A. No.2794 OF 2012 ==========================** Dated this the 17[th] day of July, 2017 ## **JUDGMENT** _Anil K. Narendran, J._ This appeal arises out the award passed by the Motor Accidents Claims Tribunal, Tirur dated 25.08.2012 in O.P.(MV).No.678 of 2010, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident which occurred on 28.5.2010. While the appellant/claimant was travelling on a motor cycle as a pillion rider, it was hit by a car bearing Reg.No.KL/11AG5068 driven and owned by respondents 1 and 2 and insured with the third respondent. As a result of the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the first respondent driver, claim **M.A.C.A.2794/2012** 2 petition was filed before the Tribunal claiming a total compensation of Rs.2,05,000/- under different heads. 2. Before the Tribunal, Exts.A1 to A7 were marked on the side of the appellant/claimant. The disability certificate issued by the District Medical Board, Manjeri was marked as Ext.C1. The respondents have not chosen to adduce any oral or documentary evidence. 3. After considering the materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the car by the first respondent driver. Since the said vehicle was covered by a valid insurance policy, the third respondent insurer was held liable to indemnify the second respondent owner. Under different heads, the Tribunal awarded a total compensation of Rs.93,784/- and directed the third respondent insurer to deposit the said amount before the Tribunal together with interest at the rate of 9% per annum from the date of the petition till realisation with proportionate cost. 4. Dissatisfied with the quantum of compensation awarded by **M.A.C.A.2794/2012** 3 the Tribunal under different heads, the appellant/claimant is before this Court in this appeal. 5. We heard the learned counsel for the appellant/claimant and also the learned counsel for the third respondent insurer. 6. The sole issue that arises for consideration in this appeal is as to whether the appellant/claimant is entitled for enhancement of the compensation awarded under different heads. 7. The accident is of the year 2010 and at the time of the accident, the appellant/claimant was aged 28 years. He claimed a monthly income of Rs.8,000/-, as a building worker. However, no reliable materials were produced before the Tribunal to prove his monthly income at the time of the accident. The appellant/claimant has also not chosen to mount the box. It was in such circumstances that the Tribunal fixed the monthly income of the appellant/claimant notionally at Rs.3,500/-. 8. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** , the Apex **M.A.C.A.2794/2012** 4 Court notionally fixed the monthly income of a coolie, who met with a motor accident in the year 2004 as Rs.4,500/-. In the instant case, the accident is of the year 2010 and at the time of the accident, the appellant/claimant was an able bodied person aged 28 years. In such circumstances, we deem it appropriate to re-fix his monthly income notionally at Rs.7,500/- for the purpose of assessing compensation under different heads. 9. The injuries sustained by the appellant/claimant in the accident, as borne out from Ext.A2 discharge certificate, read thus:- “Fracture of trochanter right” Ext.A2 discharge certificate would show that due to the injuries sustained, the appellant/claimant had undergone inpatient treatment for a period of 6 days. Ext.A5 series of medical bills would show that he had spent a sum of Rs.2784.01 towards medical expenses. Ext.C1 is the disability certificate issued by the District Medical Board, Manjeri in which the permanent disability sustained by the appellant/claimant has been certified as 10%. 10. The compensation awarded by the Tribunal under different **M.A.C.A.2794/2012** 5 ## heads reads thus:- |**_Head of claim_**|**_Amount claimed_**<br>**_(in Rupees)_**|**_Amount awarded_**<br>**_(in Rupees)_**| |---|---|---| |Loss of earning (total)|96000/-|10500/-| |Loss of earning (partial)|Nil|Nil| |Medical & miscellaneous<br>expenses|Nil|2784/-| |Future treatment|Nil|Nil| |Bystander expenses|2000/-|600/-| |Transportation expenses|5000/-|750/-| |Extra nourishment|15000/-|Nil| |Damage to clothingetc.|2000/-|250/-| |Pain and suffering|15000/-|7500/-| |Loss/reduction in earning<br>capacity|50000/-|71400/-| |Loss of amenities and<br>conveniences etc.|Nil|Nil| |Any other heads: Loss of<br>earning power|20000/-|Nil| |Total|2,05,000/-|93784/-| 11. Towards loss of earning, the Tribunal awarded a sum of Rs.10,500/- at the rate of Rs.3,500/-, for a period of three months. Since we have already re-fixed the monthly income of the appellant/claimant at Rs.7,500/-, the compensation payable under this head comes to Rs.22,500/- (7500x3), resulting an additional compensation of **Rs.12,000/-** . **M.A.C.A.2794/2012** 6 12. Towards bystanders expenses, the Tribunal awarded a sum of Rs.600/-. No amount was awarded under the head extra nourishment. Considering the fact that the accident is of the year 2010 and the appellant/claimant had undergone inpatient treatment for a period of 6 days, we deem it appropriate to re-fix the compensation under the head bystander's expenses at Rs.1,200/- (200x6), resulting an additional compensation of **Rs.600/-** . The appellant/claimant will also be entitled for a sum of **Rs.600/-** (100x6) under the head extra nourishment. 13. Towards damage to clothing, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 2010, we deem it appropriate to re-fix the compensation under this head as Rs.1,000/-, resulting an additional compensation of **Rs.750/-** . 14. Towards pain and suffering, the Tribunal awarded a sum of Rs.7,500/-. Considering the nature of the injuries sustained and the treatment the appellant had undergone, as borne out from the medical records, we deem it appropriate to re-fix the compensation under this **M.A.C.A.2794/2012** 7 head as Rs.10,000/-, resulting an additional compensation of **Rs.2,500/-.** 15. Towards loss of earning capacity, the Tribunal awarded a sum of Rs.71,400/- taking the multiplicand as 3,500, applying the multiplier of '17' and percentage of disability as 10%. Going by the decision in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802],** the Tribunal has rightly adopted the multiplier. Since we have already re-fixed the monthly income of the appellant/claimant at Rs.7,500/-, the compensation payable under this head is re-worked as Rs.1,53,000/- (7500x12x17x10/100), resulting an additional compensation of **Rs.81,600/-.** 16. Towards loss of amenities, no amount was awarded by the Tribunal. Considering the nature of injuries sustained and the disability that had arisen therefrom, as certified in Ext.C1 disability certificate issued by the District Medical Board, we deem it appropriate to grant a sum of **Rs.10,000/-** under this head. 17. In the result, the appellant will be entitled for an additional **M.A.C.A.2794/2012** 8 compensation of **Rs.1,08,050/-** (12,000+600+600+ 750+2,500+81,600+10,000) in this appeal, which will carry interest at the rate of 8% per annum from the date of the petition till realisation. 18. Since the insurance coverage of the offending vehicle is not in dispute, the third respondent insurer shall deposit the said amount before the Tribunal within two months from the date of receipt of a certified copy of this judgment. Appeal is disposed of as above. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN** **(JUDGE)** **spc/** **M.A.C.A.2794/2012** 9 **C.T. RAVIKUMAR, J.** **M.A.C.A.2794/2012** 10 **JUDGMENT September, 2010**