Hakim A. v. Jumajia and National Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 29TH DAY OF JANUARY 2016 / 9TH MAGHA, 1937 **MACA.No. 31 of 2012** [AGAINST THE AWARD IN OPMV 1597/2004 of ADDL.D.C.& MACT,PATHANAMTHITTA DATED 14-10-2011] APPELLANT(S) HAKKIM.A. ATED 31 YEARS, THEKKUM VILAYIL VEEDU, MANGADU P.O., ENADHIMANGALAM, PATHANAMTHITTA DISTRICT. BY ADV.SRI.K.N.RADHAKRISHNAN(THIRUVALLA) RESPONDENTS(S): ## 1. JUMAJIA W/O.SAINUDHEEN, PALLIKIZHAKKETHIL VEEDU, KURICHIMUTTAM, ARANMULA, PATHANAMTHITTA DISTRICT-689 645. 2. NATIONAL INSURANCE COMPANY LTD. PATHANAMTHITTA-689 645. R2 BY ADV. SMT.SARAH SALVY R1 BY SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.Ravikumar & Mary Joseph, JJ.** ------------------------------------------------- M.A.C.A.No. 31 of 2012 -----------------------------------------------Dated this the 29[th] day of January, 2016. ## **JUDGMENT** ## **C.T.Ravikumar, J.** The injured/claimant preferred this appeal, aggrieved by and dissatisfied with the quantum of compensation awarded by the Motor Accidents Claims Tribunal, Pathanamthitta in O.P.(MV) No.1597 of 2004. On 28.5.2004, while the appellant was standing on the southern side of the Kayamkulam-Punalur public road, a mini lorry bearing Reg.No.KL-7E 5301 driven by the first respondent, who is also the owner of the said lorry, in a rash and negligent manner knocked him down and as a result of which he sustained serious injuries. He was taken to Mariya Hospital, Adoor and he had been an inpatient for 9 days. As a result of the injury, he incurred 30% physical disability going by Ext.A7 disability certificate issued by the Medical Board. It is in the said circumstances, that he filed O.P(MV) No.1597/2004 seeking a compensation of `3,50,000/- before the Tribunal. The appellant produced Exts.A1 to A8. Both sides did not adduce any oral MACA NO.31 OF 2012 -:2:- evidence and in fact, in the case of the respondents, they did not adduce any documentary evidence as well. After appreciating the evidence on record and considering the rival arguments advanced, the Tribunal found that the accident had occurred due to the rash and negligent driving of the driver of the first respondent, the driver-cum-owner of the offending vehicle. Since there was no dispute with regard to the coverage of insurance policy, the second respondent was mulcted with the liability to indemnify the first respondent. The Tribunal had assessed the compensation to which the appellant is entitled, as `2,48,080/-. It was ordered that the said amount will carry interest at the rate of 7.5% from the date of filing of the petition i.e., 6.12.2004 till realisation. `5000/- was also awarded towards cost. As noticed hereinbefore, this appeal has been filed contending that the Tribunal had failed to grant just compensation and what was granted is too inadequate, considering the injuries sustained by him. 2. We have heard the learned counsel for the appellant as also the learned counsel appearing for the second respondent. 3. As noticed hereinbefore, on appreciation of the evidence on MACA NO.31 OF 2012 -:3:- record, the Tribunal had arrived at a definite finding that the accident had occurred solely due to the rashness and negligence on the part of the first respondent, the Driver-cum-Owner of the offending vehicle, which is the mini lorry bearing Reg.No.KL-7E 5301. Despite such a specific finding, the first respondent or the second respondent did not choose to file any appeal. In the said circumstances, there is no scope for interfering with such findings. Hence, the question to be decided is whether there is any substance in the contention of the appellant that under various heads, compensation was erroneously assessed and they require upward modification. 4. The main contention of the appellant is that the monthly income taken for calculation purpose is too meagre. Evidently, the contention of the appellant was that he was earning `6000/- per month. However, no evidence, either oral and documentary was adduced to establish the occupation of the appellant or to support his claim of income. The appellant was aged 31 years at the time of the accident and he was an able-bodied person though he incurred 30% permanent disability due to the injuries sustained in the accident. In such MACA NO.31 OF 2012 -:4:- circumstances, it is contended that in the light of the decision of the **v.** Honourable Apex Court in **Ramachandrappa Manager, Royal Sundaram Alliance Insurance Co.Ltd.** [2011(13)SCC 236], wherein the monthly income of a coolie was taken as `4500/-, his claim regarding income ought to have been accepted and acted upon. The learned counsel also brought to our notice that though the appellant has not adduced any evidence, a contention was taken before the Tribunal itself that the permanent disability would adversely affect his career as a labourer. Taking into account such contention, and in the light of the **' s case** decision of the Honourable Apex Court in **Ramachandrappa** (supra), we find no reason why he should not at least be treated as a coolie for the purpose of assessing compensation. In the case on hand, the accident in question had occurred in the year 2004 and the appellant was then aged 31 years. When that be the case, we have no hesitation to hold that the Tribunal had erred in taking the notional income of the appellant as `3000/- and it is too meagre. It ought to have been taken as ` 4500/- in the light of the aforesaid decision. Hence, we do so. 5. As regards the compensation for loss of earning, taking his MACA NO.31 OF 2012 -:5:- monthly income notionally at `3000/-, the Tribunal had awarded an amount of `9000/- as against thr claim of the appellant for `25,000/-. Ext.A4 is the Accident Register-cum-Wound Certificate, which would reveal that he sustained the following injuries:- - “ _1) Lacerated wound 7x4x2cm over frontal region of scalp._ - _2) Lacerated wound 4x3x2cm over left parietal region of scalp._ - _3) Lacerated wound on 5[th] web of toe._ - _4) Spotted abrasion over right dorsum of hand right knee and right dorsum of foot._ - _5) Fracture shaft of humerus right, comminuted fracture shaft._ - _6) Multiple fracture right hand 2[nd,] 3[rd] and 4[th] metacarpal right compound and comminuted._ ” In the light of the evidence on record regarding the nature of injuries, we do not find any reason to interfere with the period fixed for granting compensation therefor. But then, for the period of three months, in the light of the modified rate of monthly income, the appellant also is entitled to get a total amount of `13,500/-. In other words, he is entitled to get `4500/- additionally under the said head. The accident had occurred at Plantation Junction on Kayamkulam-Punalur Public road. Evidently, the petitioner was thereafter taken to Mariya Hospital at Adoor. Towards the cost of expenses incurred for transportation, the MACA NO.31 OF 2012 -:6:- appellant had claimed an amount of `2000/-, but the Tribunal granted only `1000/-. Taking into account the distance between the place of accident and the hospital and also the fact that he must have had further reviews, we are of the view that there was no justification for declining the entire amount claimed under the said head. In such circumstances, under the head 'transportation to hospital', the appellant is entitled to get `1000/- more. The appellant had been an inpatient for a period of nine days. Ext.A4 Accident Register-cum-Wound Certificate would reveal the injury sustained by the appellant in the accident in question. Though the appellant had claimed only a reasonable amount of `2000/under the head 'Extra diet and nourishment', the Tribunal had granted only `1000/-. In the said circumstances, we award `1000/- more under the said head. Towards damage to clothings and other articles, the appellant had claimed an amount of `1000/- and the Tribunal granted only `500/-. We award `500/-more under that head. The appellant had claimed `50,000/- towards the medical expenses and treatment expenses. However, he had produced Exts.A8 series which would reveal only an expenditure of `36,080/- towards medical and MACA NO.31 OF 2012 -:7:- treatment expenses. The Tribunal had granted the entire amount covered by Ext.A8 series and in such circumstances, we find no reason to interfere with the compensation awarded under the aforesaid head. Though the appellant did not claim any amount towards by-standers expenses, the Tribunal granted `900/- taking `100/- per day and taking into account the fact that he had been an inpatient for nine days. The accident had occurred in the year 2004 and the appellant had been an inpatient for nine days. In such circumstances, we are of the view that the Tribunal erred in having fixed the rate of expenses the amount payable to the appellant under the said head only at the rate of `100/per day. We are of the view that the appellant is entitled to get an amount of `150/- per day towards bystander's expenses. In such circumstances, deducting the amount already granted under the said head, the appellant is entitled to get additionally an amount of `450/-. Towards the loss of amenities of life, the appellant had claimed an amount of `25,000/- and the Tribunal had granted only `1000/-. It is also to be noted that the evidence on record would reveal that the Tribunal had accepted the entire extent of disability assessed under MACA NO.31 OF 2012 -:8:- Ext.A7 viz., 30%. There cannot be any doubt with respect to the position that in such circumstances, he must have been deprived of enjoyment of life. Taking into account the fact that he was then aged only 31 years and sustained permanent disability to the tune of 30% and the nature of injuries, we are of the view that the appellant is entitled to get the entire amount claimed under the said head to `25,000/-. In such circumstances, deducting the amount already awarded, we award an additional amount of `24,000/- to the appellant under the head. As compensation towards pain and suffering, the appellant claimed an amount of `45,000/- and the Tribunal granted only an amount of `15,000/-. Evidently, the petitioner had been an inpatient for 9 days taking into account the nature of injuries sustained by him and the period of treatment which he had undergone, the amount granted under the head 'pain and suffering' is too inadequate in our considered view. Taking into account the nature of the injuries as also the period of treatment he had undergone, we are of the view that the appellant is entitled to get a compensation of `40,000/-. In such circumstances, deducting the amount already awarded, the appellant is MACA NO.31 OF 2012 -:9:- entitled to get `25,000/- more. For the permanent disability incurred in the accident, the appellant had claimed an amount of `2,00,000/- and the Tribunal had granted an amount of `1,83,600/- (`36,000/- x 17 x 30/100). We have already found that the Tribunal had erred in taking his monthly income as `3000/- and we fix the monthly income of the appellant as `4500/-. Obviously, the Tribunal had accepted Ext.A7, which is a disability certificate issued by the Medical Board, assessing the extent of permanent disability of the appellant as 30%. 6. The learned counsel for the second respondent contended that the Tribunal erred in taking 17 as the multiplier for the purpose of calculating the compensation payable under the aforesaid head, going by the decision of the Honourable Apex Court in **Sarla Verma** v. **Delhi Transport Corporation [** 2010(2) KLT 802 (SC)]. Though the second respondent did not prefer any appeal against the impugned award, when a mistake of such a nature is brought to our notice, we have no doubt in our mind that we are bound to consider the same. A **'** perusal of paragraph 42 of the decision in **Sarla Verma s case** (supra) would reveal that applying the earlier decisions of the Honourable MACA NO.31 OF 2012 -:10:- Apex Court in **General Manager, Kerala State Road Transport Corporation** v. **Susamma Thomas** [1994(1) KLT 67 (SC)], **U.P.S.R.T.C.** v. **Trilok Chandra** [1996(2) KLT 218(SC)] and **New India Assurance Co.Ltd.** v. **Charlie** [2005(3) KLT 227 (SC), the Honourable Apex Court held that in the case of persons between the age group of 31 to 35 years, the proper multiplier is '16'. In such circumstances, we are of the view that the said error in adoption of multiplier is liable to be corrected. In such circumstances, the multiplier ought to have been taken only as '16' instead of '17'. Hence the compensation payable for the permanent disability has to be re-assessed by taking the multiplier as '16' and the monthly income as `4500/-. The appellant is entitled to get additionally an amount of `75,600/- [(`4500/- x 12 x 16 x 30/100) **–** `1,83,600/-]. 7. In the light of the re-assessment and enhancement made as above, the appellant is entitled to get a total additional compensation of `1,32,050/-. The said amount will carry interest at the rate of 8% from the date of petition till realisation. The second respondent is directed to deposit the enhanced amount of compensation along with interest MACA NO.31 OF 2012 -:11:- within a period of three months from the date of receipt of a copy of this judgment. There will be no order as to costs. This Appeal is allowed as above. Sd/- ## **C.T.Ravikumar, Judge.** Sd/- **Mary Joseph, Judge.** MBS/ -true copy- P.S.TO JUDGE MACA NO.31 OF 2012 -:12:-