Habeeb Rahiman v. K.P. Sukanya & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943** ## **MACA.No.2023 OF 2011** **AGAINST THE AWARD IN OPMV 410/2004 DATED 07-06-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY** ## **APPELLANT:** **HABEEB RAHIMAN S/O HASSAINAR AGED 37 YEARS, COOK AT PETROLEUM COMPANY, RESIDING AT POONKAVIL PUNNAKKAL HOUSE, MADAKKARA IRINAV P.O. KANNUR DISTRICT** **BY ADV. SRI.GEORGE MATHEWS** ## **RESPONDENTS:** - **1 K.P.SUKANYA & OTHERS FATHER'S NAME AND AGE NOT KNOWN RESIDING AT ANUGRAHA,MUNDAYAD P.O. KANNUR PIN 670001.** - **2 KANDEMBETH SHIJU S/O.PIDAKKAL GOPALAN, RESIDING AT KANDAMBETH HOUSE, NEAR VALIYANNUR VILLAGE OFFICE, VARAM P.O. KANNUR 670001** - **3 THE UNITED INDIA INSURANCE COMPANY LTD. BRANCH OFFICE, CHOVVA KALTEX JUNCTION, KANNUR 670001** **R1, R3 BY ADV. SMT.R.REMA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2023 OF 2011** **2** ## **P.V.KUNHIKRISHNAN, J. =================== MACA No.2023 OF 2011 =================== Dated this the 25[th] day of March 2021** ## **J U D G M E N T** Appellant is the petitioner in O.P (MV) No.410/2004 on the file of the Motor Accidents Claims Tribunal, Thalassery. It was a claim petition filed under Section 166 of the Motor Vehicles Act, 1988. The above claim petition was disposed of along with OP (MV) No. 409 of 2004. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal). 2. The short facts are like this:_ On 09.01.2003 the petitioners in OP (MV) Nos. 409/2004 and 410/2004 were traveling in a motor cycle bearing Registration No. KL-13/D 4211 and when the motor cycle reached near Varam Talkies at about 2.00 **MACA.No.2023 OF 2011** **3** p.m., a pick up van bearing Registration No. KL -13/G 9887 driven by the 2[nd] respondent in a rash and negligent manner hit against the motor cycle. As a result of which, the petitioner sustained grievous injuries. It is alleged that, the accident occurred solely due to the rash and negligent driving of the 2[nd] respondent. First respondent is the owner and the 3[rd] respondent is the insurer of the pick up van involved in the accident. 3. To substantiate the case, Exts. A1 to A17 were marked on the side of the petitioner. PW1 and PW2 were the witnesses examined on the side of petitioner. After going through the evidence and documents, the tribunal found that, the petitioner is entitled an amount of Rs.2,29,500/-, with interest @ 7.5% per annum from the date of application till realization. Aggrieved by the quantum of compensation this appeal is filed. 4. Heard the learned counsel for the petitioner and the learned Standing counsel for the insurance company. **MACA.No.2023 OF 2011** **4** 5. The learned counsel for the appellant submitted that, the appellant was working as a cook in a shipping company and he was aged 31 years at the time of accident. The learned counsel submitted that, the tribunal erred in fixing the monthly income of the appellant as Rs.3,000/-, when his claim is that, he was getting Rs.30,000/- per month. There is no serious dispute to the fact that, the appellant was working in a shipping company. The appellant produced Exts. A10 and A15 to prove his monthly income. As per the document, the monthly income of the petitioner is Rs.2,500/- dirham, which is equal to Rs.30,000/- (Indian Currency Notes). The tribunal rejected Exts. A10 and A15, because it is not proved in a manner known to law. But the fact remains that, the petitioner is working in gulf and he is having a valid passport also. Nobody will continue with a job in Abudhabi with a meager amount of Rs. 3,000/- per month. But it is true that, Exts. A10 and A15 is not **MACA.No.2023 OF 2011** **5** properly proved. Considering the entire facts and circumstances of the case, the monthly income of the appellant can be fixed as Rs.10,000/-. Moreover, 40% increase is to be given to the income towards future prospectus. Then the monthly income of the appellant can be fixed as Rs. 14,000/-. 6. The learned counsel for the petitioner submitted that, as per the medical board certificate, the disability of the appellant is fixed as 40%. But the tribunal taken it as 10%. The learned counsel submitted that, PW2 is the doctor, who is a member of the medical board and he proved Ext. A17. But, PW2 deposed before the Court that, no mention is there in Ext.A17 so as to see that, the assessment was with respect to the whole body. It is also admitted by PW2 that, in Ext.A17, there is no mention regarding the verification of the medical records. A perusal of Ext.A17 will show that, the permanent disability of the petitioner is 40% belongs to moderate category. **MACA.No.2023 OF 2011** **6** 7. The Apex Court in _**Pappu Deo Yadav v. Naresh Kumar and others**_ [AIR 2020 SC 4424] after considering a plethora of decisions on a point 'permanent disability' has held that the inquiry that has to be conducted by the Court is the resultant loss of income generating capacity of the claimant. The principle to be followed by the court in assessing motor vehicles compensation claims is to place the victim in the same position as he was before the accident. The Bench referred to the earlier decisions in _**Syed Sadiq and others v. Divisional Manager, United India Insurance Company**_ [2014 (2) SCC 735] and _**Raj Kumar v. Ajay kumar and anr.**_ [2011 (1) KLT 620 (SC)] and held that the court should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities supplied, both in the assessment of extent of disabilities and compensation under various heads. 8. Considering the entire facts and circumstances **MACA.No.2023 OF 2011** **7** of the case, I think, 20% disability can be assessed, taking into consideration the evidence of PW2 and Ext. A17. But, I am not accepting the disability found by the Medical Board as 40% in the facts and circumstances of the case. 9. The multiplier used by the tribunal for assessing the compensation for disability is '17'. It is admitted that, the multiplier is '16' in the light of the decision in _**Sarla Verma & Others v. Delhi Transport Corporation & another [2010 (2) KLT 802].**_ Therefore, the amount entitled by the petitioner for disability is to be re assessed in the following manner. Rs.14,000 X 12 X 16 X 20/100= Rs. 5,37,600/10. An amount of Rs. 61,200/- is already granted by the tribunal and that is to be deducted from the above amount. The balance amount will be:- Rs.5,37,600 – Rs.61,200 = **Rs.4,76,400/-** . 11. Then the loss of earning is to be re calculated in the light of the monthly income now fixed by this Court. **MACA.No.2023 OF 2011** **8** Then the loss of earing is to re assessed in the following manner; Rs.10,000 X 8= 80,000/- 12. An amount of Rs.24,000/- is already granted by the tribunal and that is to be deducted from the above amount. The balance amount will be:- Rs.80,000 – Rs.24,000 = **Rs.56,000/-** . 13. Towards bystanders expenses, only an amount of Rs.100/- per day for a period of 38 days is allowed by the Tribunal. I think that the appellant is entitled an amount of Rs.200/- per day and hence, towards bystander's expenses, another enhanced amount of **Rs.3,800/-** is allowed. 14. Towards pain and sufferings, the Tribunal awarded only an amount of Rs.12,000/-. I perused the medical records and from that it is clear that the petitioner sustained very serious injures. I think that the appellant is entitled an amount of **Rs.13,000/-** more towards pain **MACA.No.2023 OF 2011** **9** and sufferings. 15. For loss of amenities no amount is awarded by the Tribunal. In the facts and circumstances, the appellant is entitled **Rs.15,000/-** towards loss of amenities. 16. Therefore, the enhanced compensation entitled by the appellant can be summarised like this:- **==> picture [378 x 160] intentionally omitted <==** **----- Start of picture text -----**<br> Head Amount<br>Permanent disability Rs.4,76,400/-<br>Loss of earnings Rs.56,000/-<br>Bystanders expenses Rs.3,800/-<br>Pain and sufferings Rs.13,000/-<br>Loss of amenities Rs.15,000/-<br>Total Rs.5,64,200/-<br>**----- End of picture text -----**<br> 17. The appellant is entitled an enhanced compensation of Rs.5,64,200/- (Rupees Five Lakhs Sixty Four Thousand and Two Hundred Only) with interest at the rate of 7.5% p.a., for the enhanced compensation. Therefore, this appeal is allowed in part and the impugned award is modified. The appellant is entitled an **MACA.No.2023 OF 2011** **10** enhanced compensation of Rs.5,64,200/- (Rupees Five Lakhs Sixty Four Thousand and Two Hundred Only) with interest at the rate of 7.5% p.a., from the date of petition till realisation. Respondent No. 3 is directed to pay the enhanced compensation with interest to the appellant. The appellant is not entitled interest for a period of 329 days because this appeal was filed with a petition to condone the delay of 329 days. **(Sd/-) P.V.KUNHIKRISHNAN JUDGE** LU/avs