Chathukutty v. Shabeer A.K., Saneesh and United India Insurance Company

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 10[TH] DAY OF MARCH 2022 / 19TH PHALGUNA, 1943** ## **MACA NO. 2436 OF 2009** **AGAINST THE AWARD DATED 06.05.2009 IN OPMV 270/2005 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/PETITIONER:** CHATHUKUTTY, S/O EDATHADAN RAMANKUTTY POTTA VILLAGE AND DESOM, THRISSUR DISTRICT. BY ADV SRI.T.N.MANOJ ## **RESPONDENTS/RESPONDENTS:** - 1 SHABEER A.K.,MANAGING PARTNER MODERN FERTILIZERS INDUSTRIES, KAROOR CHALAKUDY. - 2 SANEESH, S/O.PUTHENPARAMBIL ASOKAN POOPATHY POYYA (VIA)MALA. - 3 THE MANAGER UNITED INDIA INSURANCE COMPANY, P.O. BOX NO.66, ALENGADANS, BUILDING IRINJALAKUDA BY ADV SMT.K.C.BEENA ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 10.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO.2436 OF 2009 2** ## **JUDGMENT** **Dated this the 10[th] day of March, 2022** The appellant was the petitioner in O.P (MV) No.270/2005 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 14.10.2004. It was his case that, while he was travelling pillion on a motorcycle bearing registration No. KDE 1691 from Irinjalakuda to Aloor, a lorry bearing registration No. KL 8/N 1333, driven by the second respondent in a negligent manner, hit the motorcycle. The appellant sustained multiple injuries, including a open fracture of the fibula and tibia right and a fracture of his right femur. The appellant was treated as an inpatient for the period from 14.10.2004 to **MACA NO.2436 OF 2009 3** 03.11.2004 at the St.James Hospital, Chalakkudy. The appellant was a coolie worker by profession and was earning a monthly income of Rs.4000/-. The lorry was owned by the first respondent and insured with the third respondent. Hence, the appellant claimed a compensation of Rs.2,00,000/- from the respondents. 3. The legal representatives of the rider of the motorcycle, who lost his life in the same accident, also filed O.P.(M.V) No.71/2005 before the same Tribunal, seeking compensation from the respondents. 4. The respondents 1 and 2 had filed a joint written statement in both the claim petitions denying the negligence on the part of the second respondent. It was contended that the accident occurred due to the negligence of the rider of the motorcycle. However, it was conceded that the lorry had a valid insurance coverage, therefore, it was the third respondent who was ## **MACA NO.2436 OF 2009 4** to indemnify the liability of the first respondent arising out of the accident. 5. The third respondent had also filed separate written statements admitting that the lorry had a valid insurance coverage. The third respondent reiterated that it was the rider of the motorcycle, who was negligent in causing the accident and that the compensation claimed was excessive. 6. The Tribunal, consolidated and jointly tried the two claim petitions. 7. The petitioners in the two claim petitions produced and marked Exhibits A1 to A12 in evidence. The respondents did not let in any evidence. 8. The Tribunal, after analyzing the pleadings and materials on record, by its common award, allowed the captioned claim petition in part, by permitting the appellant to recover from the third respondent an ## **MACA NO.2436 OF 2009 5** amount of Rs.1,43,000/- with interest and proportionate cost. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri.Manoj T.N., the learned counsel appearing for the appellant/petitioner and Smt.K.C.Beena, the learned counsel appearing for the third respondent-insurer. 11. The point that emanates for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 12. Exhibit A2 charge sheet filed by the Irinjalakuda Police in Crime No.602/2004 proves that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the lorry. The respondents have not let in any evidence to ## **MACA NO.2436 OF 2009 6** discredit Exhibit A2 charge sheet. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 13. The appellant had claimed that he was a coolie worker by profession and earning a monthly income of Rs.4000/-. For the want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.2000/-. 14. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 15. Following the yardstick in the afore-cited decision and considering the fact that the accident ## **MACA NO.2436 OF 2009 7** occurred in the year 2004, I re-fix the notional monthly income of the appellant at Rs.4000/-. ## **Loss of earnings** 16. The Tribunal has found that the appellant was indisposed for a period of five months. I confirm the said finding. 17. Nonetheless, in view of the re-fixation of the notional monthly income of the appellant at Rs.4000/-, I award him a further amount of Rs.10,000/- under the head ‘loss of earnings’. ## **Disability** 18. The appellant had produced Exhibit A11 disability certificate issued by the Assistant Surgeon and Orthopedic Surgeon of the Government Taluk Head Quarters Hospital, Irinjalakuda, to prove that he had a disability of 14%. However, the Tribunal, for the reason that the appellant had not examined the Doctor who ## **MACA NO.2436 OF 2009 8** issued Exhibit A11 disability certificate, discarded the said disability certificate. 19. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable Supreme Court has categorically held that if the Tribunal is dissatisfied with the disability certificate produced before it, it is the duty of the Tribunal to refer the to a injured-claimant duly constituted Medical Board. It is also held that if the disability certificate is marked with the consent of the parties, then the same can be accepted in evidence. Further, it is also held that what needs to be looked into in a injury claim is the functional disability of the injured-claimant. 20. In the instant case, Exhibit A11 disability certificate was marked without any objection or protest from the respondents. The Tribunal has also not referred the appellant to a Medical Board. Therefore, I ## **MACA NO.2436 OF 2009 9** accept Exhibit A11 in evidence to fix the functional disability of the appellant. 21. On a perusal of Exhibit A11, I find that the appellant has partial ankylosis with severe stiffness of his right knee, deformity of his right leg, wasting of his right thigh and leg muscle. As the appellant was a coolie worker by profession and he has difficulty in squatting and climbing stairs, I fix his functional disability at 10%. ## **Multiplier** 22. The appellant was aged 58 years at the time of the accident. In the light of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘9’. ## **Loss of earning capacity** 23. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.4000/-, his functional disability at 10% and the ## **MACA NO.2436 OF 2009 10** multiplier at ‘9’, I award him an amount of Rs.43,200/towards ‘loss of earning capacity’. ## **Loss of amenities and Extra nourishment** 24. The Tribunal has awarded the appellant only an amount of Rs.12,000/-. 25. Taking into account the fact that the appellant was treated as an inpatient for a period of 35 days, that he was indisposed for a period of five months and that he has suffered a functional disability of 10% , I award him a further amount of Rs.8,000/- under the head ‘loss of amenities’. I also award the appellant an amount of Rs.3500/- towards ‘Extra nourishment’. 26. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 27. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, I hold that the ## **MACA NO.2436 OF 2009 11** appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |Sl No.|Head of Claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings|10000|20000| |2|Transport|1000|1000| |3|By-stander<br>expenses|3500|3500| |4|Extra<br>nourishment|0|3500| |5|Medical<br>expenses|95500|95500| |6|Pain and<br>sufferings|20000|20000| |7|Loss of amenities|12000|20000| |8|Loss due to<br>disability|0|43200| ||Total|142000 but<br>awarded<br>Rs.143000/-|206700| ## **MACA NO.2436 OF 2009 12** In the result, the appeal is allowed, by enhancing the compensation by a further amount of **Rs.63,700/-** with interest at the rate of 6% per annum from the date of petition till the date of deposit, after deducting interest for a period of 42 days ( i.e., the period of delay in filing the appeal and as ordered by this Court on 26.10.2021 in C.M.Application No.1 of 2009), and a cost of Rs.5,000/-. The third respondent - insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a copy of this judgment. Immediately, on the compensation amount being deposited, the same shall be disbursed to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS JUDGE** rmm/10/03/2022