**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR.JUSTICE K.HARILAL**
**WEDNESDAY, THE 20TH DAY OF JUNE 2018 / 30TH JYAISHTA, 1940**
**MACA.No. 2443 of 2014**
**OP(MV).1007/2011 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE**
## **APPELLANT/PETITIONER :**
**C.P. ABBAS, S/O.ABDULLAKUTTY,AGED 51 YEARS, RESIDING AT CHERIYACHANTE PULIKKAL (H), CHALIYAM P.O., KOZHIKODE - 673 301.**
**BY ADVS.SRI.AVM.SALAHUDIN**
**SMT.A.D.DIVYA**
## **RESPONDENTS/3RD RESPONDENT :**
**1. HANEEFA, S/O.VEERANKUTTY, AGE NOT KNOWN, PARAMBADAN, VALIYAPPALLIYIL HOUSE, THURAKKAL P.O., MALAPPURAM - 676 505.**
**2. JIYADMON K., S/O.JABBAR, AGED 22 YEARS, RESIDING AT SHERIYAR MANZIL, CHAKKIRIKKAD PARAMBA, ARAKKINAR P.O., KOZHIKODE - 673 028.**
**3. THE UNITED INDIA INSURANCE CO.LTD., KIYAMANNIL PLAZA, 2ND FLOOR, MANJERI ROAD, MALAPPURAM - 676 505.**
**R1-R2 BY ADVS. SRI.K.M.FIROZ**
**SMT.M.SHAJNA SRI.S.KANNAN R3 BY SRI.JOHN JOSEPH VETTIKAD,SC BY ADV. SMT.DEEPA GEORGE**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**EL**
**2.8.2018**
## **K.HARILAL, J. ----------------------------------M.A.C.A.No. 2443 of 2014 -----------------------------------------------Dated this the 20[th] day of June, 2018**
## **J U D G M E N T**
The appellant is the petitioner in O.P.(MV).No. 1007/2011 of the Motor Accidents Claims Tribunal, Kozhikode. The aforesaid application was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the loss suffered by him in a road traffic accident.
2. According to him, on 28.09.2010 at about 7 pm, while he was walking along the public road, the offending motor cycle ridden by the 2[nd] respondent, owned by the 1[st] respondent and insured with the 3[rd] respondent hit him, resulting serious injuries to him. The accident was caused by the rash and negligent riding of the motor cycle by the 2[nd] respondent. So the 1[st] and 2[nd] respondents are liable to pay compensation to him and the 3[rd] respondent insurance company is liable to indemnify the 1[st] and 2[nd] respondent, by paying compensation to him.
3. The 3[rd] respondent insurance company opposed the
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said application disputing the quantum of compensation and cause of accident but admitted the coverage of insurance policy. After considering the evidence on record, the tribunal passed the impugned award granting Rs. 1, 92, 231/-, as compensation for the injuries suffered by him. The inadequacy and correctness of the quantum of compensation are challenged in this appeal, filed by the petitioner.
4. I have heard the learned counsel for the petitioner and the learned counsel for the 3[rd] respondent insurance company.
5. It is contended by the learned counsel for the appellant that at the time of accident the petitioner was a coolie worker and he was getting more than Rs. 9,500/- as monthly income. But the tribunal has taken Rs. 4,000/- only as monthly notional income. Similarly, he had sustained multiple fracture and undergone two surgeries during two different periods. The first surgery was immediately after the accident on 17.10.2010 and the second surgery was on 14.06.2011. Firstly, he was an inpatient from 28.09.2010 to 17.10.2010 and secondly from
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14.06.2011 to 25.06.2011. He was bed ridden for a period of one year, but the tribunal has granted Rs. 16,000/- only as compensation for loss of earnings for four months only. Thirdly it is contended that the tribunal has granted Rs. 10,000/- only as compensation for loss of amenities. In view of the degree of disability sustained by him, the compensation for loss of amenities is disproportionate and inadequate.
6. Per contra, the learned counsel for the 3[rd] respondent insurance company advanced arguments to justify the determination of monthly income and the amount granted as compensation for loss of earnings. It is also contended that the quantum of compensation determined as compensation for loss of amenities is just and fair.
7. In view of the arguments at the Bar, the point to be considered is whether the tribunal is justified in determining the monthly income, the compensation for loss of earnings and loss of amenities.
8. According to the petitioner, he was a coolie worker at the time of accident and the said claim is not effectively
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challenged in evidence by the respondents. It is true that no evidence has been adduced to prove the exact income of the petitioner at the time of accident. But in the proposition laid down by the Apex Court in _**Ramachandrappa v. Manager,**_
_**Royal Sundaram Alliance Insurance Company Limited**_ reported in _**(2011) 13 SCC 236**_ is that in the absence of exact evidence to prove the monthly income of the claimant, for an accident occurred in the year 2004, Rs. 3,500/- to Rs. 4,500/- can be taken as the monthly notional income. In the instant case, the accident occurred in the year 2010.
9. Having regard to the passage of time after 2004 and the decrease in the money value and increase in the living index during this period. This Court is inclined to re fix the monthly income to Rs. 7,000/- per month.
10. The leaned counsel for the petitioner contended that the tribunal has erred in taking 20% as degree of disability, when the medical board has issued Ext. C1 disability certificate stating that the petitioner has 34% permanent disability. Going by Ext. C1 disability certificate, it shows that there was a 'malunion of
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the bone in functional position, restriction of movements in ankle, unable to squat, difficulty in standing on affected limb' etc.
11. It has come out in evidence that the petitioner was a coolie worker at the time of accident. In view of the nature of work of a coolie worker, the tribunal is not justified in reducing the percentage of disability from 35% to 20%. If he has permanent disability in standing on affected limb, it will effect his employment as a whole. Therefore, he is entitled to get compensation for permanent disability taking 34% as certified by the medical board. This court does not find any reason to reduce the degree of disability from 34% to 20%.
12. In the above view, the petitioner is given Rs. 3, 71, 280/- as compensation for permanent disability (Rs. 7,000/- x 12 x 13 x 34 /100). He is entitled to get Rs. 2, 46, 480/- as additional compensation in this account (ie, Rs. 3, 71, 280 - Rs. 1, 24, 800/-).
13. As rightly pointed out by the learned counsel for the petitioner Exts. A4 to A5 I.P reference card would show that he
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had undergone two surgeries during two different period. Firstly he was admitted and treated as and inpatient from 28.09.2010 to 17.1.2011 and the first surgery was done during this period. He was again readmitted and treated as an inpatient from 14.06.2011 to 25.06.2011 and he was subjected to the second surgery. Therefore, he could not have gone for work continuously at least for a period of ten months. Therefore, he is entitled to get compensation for loss of earnings for ten months. Thus, he is given Rs. 70,000/- (Rs. 7,000 x 10) as compensation for loss of earnings. He is entitled to get Rs. 54, 000/- as additional compensation in this account.
14. In view of the grievous nature of the injuries suffered by him and disablement shown in Ext.C1 disability certificate, the tribunal is not justified in fixing Rs. 10, 000/- only as compensation for loss of amenities. Consequently, the compensation for loss of amenities would stand enhanced to Rs. 20, 000/- and the petitioner is entitled to get Rs. 10, 000/more as additional compensation.
In the result, the total additional compensation to the
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petitioner is Rs. 3, 10, 480/- (ie, Rs. 2, 46, 480/- + Rs. 54, 000/+ Rs. 10, 000/-). It is needless to say that the aforesaid additional compensation also would carry interest as stipulated by the tribunal. All other findings of the tribunal would stand undisturbed and operative. The third respondent insurance company is directed to deposit the entire compensation within three months with the interest and the petitioner is allowed to realize the entire compensation. It is also made clear that this Court has not interfered with the reservation of the 3[rd] respondent's right to realize the compensation amount from the respondents one and two.
This M.A.C.A is allowed.
Sd/-
## **K.HARILAL, JUDGE**
\\True Copy\\ PA to Judge
Dxy
