Firoz Babu v. Ali; Abdul Latheef P.K.; United India Insurance Company Ltd.; Abdul Gafoor (MACA No. 46 of 2014)

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 22 [ ND ] DAY OF MAY 2024 / 1ST JYAISHTA, 1946 ``` ## **`MACA NO. 46 OF 2014`** ``` AGAINST THE AWARD DATED 08.04.2013 IN OP(MV) NO.490 OF 2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM ``` ## **`APPELLANT/PETITIONER:`** ``` FIROZ BABU, AGED 27 YEARS, S/O. IBRAHIM, RESIDING AT AMBALAPARAMBIL HOUSE, PUTHIYANCHERIKKAVU, P.O.PERUMBILAVU, THRISSUR DISTRICT. ``` ``` BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1 ALI, S/O. ENI, RESIDING AT PONNACHAN VALAPPIL HOUSE, CHERAVALLUR P.O., PERUMBADAPPU, MALAPPURAM DISTRICT-679 580. ``` - **`2 ABDUL LATHEEF P.K.,`** ``` S/O. KUNJUMOHAMMED, RESIDING AT PALIYAMPATTAYIL HOUSE, PERUMPILAVU, THRISSUR DISTRICT-680 519. ``` - **`3 THE UNITED INDIA INSURANCE COMPANY LTD., PEEVEES BUILDING, KUTTIPURAM ROAD, VALANCHERY, MALAPPURAM DISTRICT, PIN-676 552.`** MACA 46 of 2014 2 ``` 4 ABDUL GAFOOR, RESIDING AT MANKULANGARA HOUSE, PERUMPILAVU P.O., THRISSUR DISTRICT, PIN-680 519. ``` ``` R3 BY ADVS.SRI.JOHN JOSEPH VETTIKAD, STANDING COUNSEL ``` ``` SRI.P.K.MANOJKUMAR, STANDING COUNSEL ``` ``` SMT.ALICE THOMAS, STANDING COUNSEL ``` ``` THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 46 of 2014 3 ## **J U D G M E N T** This appeal is at the instance of the claimant in OP(MV) No.490 of 2010 on the file of Motor Accidents Claims Tribunal, Ottapalam, challenging the award on the ground of inadequacy of compensation. 2. On 13.12.2009, at 7.00 a.m., the appellant met with a road traffic accident while he was travelling in KL-8/S-3211 auto rickshaw driven by the 2nd respondent. The auto rickshaw capsized due to the rash and negligent driving by the 2nd respondent, and he sustained serious injuries including fracture of both bones of his right leg. He was hospitalised for 35 days in total and suffered disability of 11% due to the injuries suffered. He approached the Tribunal claiming compensation of Rs.6,45,000/-. But the Tribunal awarded only Rs.4,73,100/- and hence this appeal. MACA 46 of 2014 4 3. The 1st respondent was the owner of the offending auto rickshaw, 2nd respondent was its driver, 3rd respondent was its Insurer, and 4th respondent was the insured. The 3rd respondent-Insurer admitted the accident as well as the Policy. 4. Now this Court is called upon to answer whether there is any illegality, irregularity or impropriety in the impugned award, warranting interference by this Court. 5. Heard learned counsel for the appellant and learned counsel for the 3rd respondent-Insurer. 6. Learned counsel for the appellant would submit that the appellant was working as a clerk in Gulf countries and he returned to his native only on 08.12.2009 to attend the marriage of his sister. On 13.12.2009, he met with the accident. He was earning monthly income of Rs.15,000/from his work in Gulf countries. But learned Tribunal fixed MACA 46 of 2014 5 his notional income @ Rs.5,000/- only, and according to him, it is on the lower side. 7. The First Information Statement given by the appellant before Police says that, he was working in Gulf countries and he produced Ext.A16 certified copy of passport also to substantiate that fact. But no documents were produced by him to prove his monthly income. Learned counsel for the appellant would submit that even going by the decision **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]** , even a coolie worker was eligible to get his notional income fixed @ Rs.7,000/- in the year 2009. Since the appellant was employed in Gulf countries, according to him, he was eligible to get his notional income fixed more than that. MACA 46 of 2014 6 8. The salary, if any, received by the appellant before the Gulf countries cannot be equated with the income, which he ought to have received in India, considering the expenses he had to incur there, and also the unstable nature of the employment there. Considering the fact that he was working in Gulf countries, prior to the accident and he was aged only 24, this Court is inclined to fix his notional income @ Rs.8,000/- per month. 9. Towards loss of earning for six months @ Rs.8,000/-, the appellant is entitled to get Rs.48,000/-. After deducting Rs.30,000/- already awarded, he is entitled to get the balance amount of Rs.18,000/-. 10. Towards bystander expenses, learned Tribunal awarded only Rs.200/per day for 35 days of hospitalisation. Since the accident was in the year 2009, this Court is inclined to grant Rs.300/- per day during the MACA 46 of 2014 7 period of hospitalisation, which will come to Rs.10,500/(300x35) . After deducting Rs.7,000/- already awarded, he is entitled to get the balance amount of Rs.3,500/- as enhancement under the head ‘bystander expenses’. 11. For pain and suffering, the appellant claimed Rs.35,000/- before the Tribunal, and Rs.25,000/- was awarded. The appellant suffered fracture of both bones of right leg. He had undergone surgical procedures, including bone grafting and he was hospitalised for 35 days. So, this Court is inclined to award Rs.5,000/- more under the head ‘pain and suffering’. 12. Towards loss of amenities also, this Court is inclined to award Rs.5,000/- more as the appellant who was a 24 year old man suffered 11% disability, with sensory impairment on his left thigh, right leg etc. and shortening by one inch. MACA 46 of 2014 8 13. For 11% disability, taking his monthly income @ Rs.8,000/-, he is eligible to get Rs.1,90,080/(8,000x12x18x11/100). After deducting Rs.1,18,800/already awarded by the Tribunal, he is entitled to get the balance amount of Rs.71,280/-. |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Difference to<br>be drawn as<br>enhanced<br>compensation| |---|---|---|---| |Loss of earning|Rs.30,000/-|Rs.48,000/-|Rs.18,000/-| |Bystander<br>expenses|Rs.7,000/-|Rs.10,500/-|Rs.3,500/-| |Pain and suffering|Rs.25,000/-|Rs.30,000/-|Rs.5,000/-| |Loss of amenities|Rs.15,000/-|Rs.20,000/-|Rs.5,000/-| |Compensation for<br>permanent<br>disability|Rs.1,18,800/-|Rs.1,90,080/-|Rs.71,280/-| |Total|||**Rs.1,02,780**/-| 14. In the result, the appellant is entitled to get enhanced compensation of Rs.1,02,780/- in total. 15. The 3rd respondent-Insurer is directed to deposit the enhanced compensation of Rs.1,02,780/- (Rupee One MACA 46 of 2014 9 Lakh Two Thousand Seven Hundred and Eighty only), with 9% interest per annum, from the date of petition till the date of deposit, (excluding 145 days of delay in filing the appeal) before the Motor Accidents Claims Tribunal, Ottapalam, within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to the appellant after deducting his liabilities, if any, towards tax, balance court fee, legal benefit funds etc. The appeal is allowed to the extent as above, and no order is made as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/-