Haridas Menon v. Shabi A.H, Abdulla s/o Abubhakkar and United India Insurance Company Ltd

**MACA NO. 2051 OF 2012** **1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 24[TH] DAY OF JANUARY 2022 / 4TH MAGHA, 1943 MACA NO. 2051 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 2836/2006 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANT/PETITIONER:** HARIDAS MENON S/O.PRABHAKARA MENON, RESIDING AT VAILATH HOUSE, PARAPPULLIL BAZAR, KODUNGALLUR P.O., THRISSUR DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.K.A.ANAS SRI.A.R.NIMOD ## **RESPONDENTS/RESPONDENTS:** 1 SHABI A.H RESIDING AT AMBALATH HOUSE, VAKA, THRISSUR-680 602. 2 ABDULLA S/O.ABUBHAKAR, RESIDING AT NJAVANITHARA, VALIYAKATH HOUSE, KOOLIMUTTAM, EMMAD, THRISSUR DISTRICT-680 691. 3 THE UNITED INDIA INSURANCE COMPANY LTD KURUPPAM ROAD, THRISSUR-680 001. BY ADVS. SRI.K.A.SHAMSUDEEN SRI.THOMAS MATHEW NELLIMOOTTIL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2051 OF 2012** **2** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.2836/2006 on the file of the Motor Accidents Claims Tribunal, Thrissur. 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 11.05.2004. It was his case that, on the abovesaid day, while he was riding his motorcycle bearing Reg. No.KL-8/X-3846 along the KodungallurTriprayar national highway, another motorcycle bearing Reg.No.KL-8/P-9566 (offending motorcycle), driven by the 2[nd] respondent in a rash and negligent manner, hit the motorcycle of the appellant. The appellant sustained serious injuries, including a head injury. He was treated at the Modern Hospital, Kodungallur and at the Amritha **MACA NO. 2051 OF 2012** **3** Institute of Medical Sciences, Kochi, for a period of 37 days. The offending motorcycle was owned by the 1[st] respondent and insured with the 3[rd] respondent. The appellant was an Assistant Manager in a firm named 'Prima Enterprises' and was earning a monthly income of Rs.5,500/-. Hence, the appellant claimed a compensation of Rs.9,97,400/- from the respondents, which claim was limited to Rs.9,00,000/-. 3. The respondents 1 and 2 did not contest the proceeding and were set ex parte. 4. The 3[rd] respondent had filed a written statement admitting that the offending motorcycle had a valid insurance policy. However, it was contended that the accident occurred due to the negligence of the appellant. The 3[rd] respondent also disputed the age, occupation and income of the appellant. 5 The appellant examined the Doctor, who issued the disability certificate, as PW1 and marked Exts.A1 to A12 in evidence. The respondents did not let in any **MACA NO. 2051 OF 2012** **4** evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to recover from the 3[rd] respondent an amount of Rs.3,06,960/- with interest and costs. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/petitioner is in appeal. 8. Heard; Sri.T.C.Suresh Menon, the learned counsel appearing for the appellant/petitioner, and Sri.Thomas Mathew Nellimoottil the learned counsel appearing for the 3rd respondent- insurer. 9. The point that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 10. Ext.A4 final report filed by the Police proves that the accident occurred due to the negligence of the 2[nd] respondent- the driver of the offending motorcycle. The **MACA NO. 2051 OF 2012** **5** respondents have not let in any evidence to discredit Ext.A4 final report. The 3[rd] respondent has also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st ] respondent arising out of the accident. ## **Income** 11. The appellant had claimed that he was working as an Assistant Manager in a private firm. To prove his assertion, he produced Ext.A9- salary certificate issued by the proprietor. The said document was marked subject to proof. Despite the objection, the appellant did not examine the employer. Therefore, the Tribunal fixed the monthly income of the appellant notionally at Rs.4,500/-. I do not find any error or illegality in the fixation of the notional monthly income of the appellant at Rs.4,500/-, in view of the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236]. **MACA NO. 2051 OF 2012** **6** ## **Loss of earnings** 12. It is proved that the appellant was treated as an inpatient for a period of 37 days. He had sustained a fracture on his nasal bone, Type III fracture of the facial bones and fracture of the raidal styloid(L). Accordingly, the Tribunal held that the appellant was indisposed for a period of eight months. I accept the said finding and find that the amount of Rs.36,000/- awarded under the head 'loss of earning' to be reasonable and just. ## **Disability** 13. The disability of the appellant was assessed by PW1, who issued Ext.A1 disability certificate. PW1 found that the appellant has a depressed fracture on his frontal bone, fracture on his nasal bone and multiple bone fractures with palatal fistula. Accordingly, PW1 found that the appellant has deformity in his frontal region, impairment of the higher mental function, motor function of the right hand with permanent neurological disability. Hence, PW1 came to the conclusion that the appellant has **MACA NO. 2051 OF 2012** **7** a permanent disability of 25%. The Tribunal, apparently for no reason, has scaled down the disability to 20%. 14. In **Rajkumar v. Ajaykumar** [2011 (1) KLT 620 SC] , the Hon'ble Supreme Court has categorically held that, if the Tribunal is not satisfied with the disability certificate produced before it, the Tribunal has to refer the injured-claimant to a duly constituted Medical Board. It is also held that, if the disability certificate is marked with the consent of the parties, the same can be accepted in evidence. 15. In the instant case, the appellant has proved his disability through PW1 and Ext.A1 was marked in evidence, without any objection or protest from the respondents. Therefore, I find that the scaling down of the disability from 25% to 20% is erroneous and wrong. Consequentially, I fix the functional disability of the appellant at 25%. ## **Multiplier** 16. The appellant was aged 49 years at the time of **MACA NO. 2051 OF 2012** **8** the accident. In view of the law laid down in **Sarla Verma & Otrs Vs. Delhi Transport Corporation** [(2009) 6 SCC 121], the relevant multiplier to be adopted is '13'. ## **Loss due to disability** 17. Taking into account the above mentioned factors, namely, the monthly income of the appellant at Rs.4,500/-, his functional disability at ‘25%’ and the multiplier at '13', I award the appellant an amount of Rs.1,75,500/- towards ‘loss due to disability’ instead of Rs.1,40,400/- awarded by the Tribunal. ## **- Bystander expenses and Extra nourishment expenses** 18. It is proved and established that the appellant was treated an inpatient for a period of 37 days in two hospitals. The Tribunal did not award any amount under the above two heads. 19. On a consideration of the fact that the appellant was treated as an inpatient for a period of 37 days and the accident occurred in the year 2004, I award the appellant **MACA NO. 2051 OF 2012** **9** an amount of Rs.400/- per day for a period of 37 days towards ‘bystander expenses’ which works out to Rs.14,800/-, and Rs.200/- per day for a period of 37 days towards ‘extra-nourishment expenses’ which works out to Rs.7,400/- ## **Pain and sufferings and Loss of amenities** 20. The Tribunal has awarded an amount of Rs.20,000/- under the head 'pain and sufferings' and Rs.15,000/- under the head 'loss of amenities'. 21. Taking note of the fact that the appellant has suffered a functional disability of 25% and that that he was indisposed for a period of eight months, I award him an amount of Rs.10,000/- each under the heads 'pain and sufferings' and 'loss of amenities'. ## **Other heads of compensation** 22. With respect to the compensation awarded under the head 'transportation expenses, medical expenses and loss of earning capacity, I find that the Tribunal has awarded reasonable and just compensation. **MACA NO. 2051 OF 2012** **10** 23. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. **==> picture [431 x 435] intentionally omitted <==** **----- Start of picture text -----**<br> SI Head of claim Amount awarded Amounts<br>by the Tribunal (in modified and<br>.No rupees) recalculated by<br>this Court<br>1 Loss of earnings 36,000 36,000<br>2. Transportation 1, 500 1,500<br>--<br>3. Bystander expenses 14,800<br>---<br>4. Extra nourishment 7,400<br>5. Medical Expenses 79,051 79,051<br>6 Pain and suffering 20,000 30,000<br>7. Loss of amenities 15,000 25,000<br>8. Loss due to disability 1,40,400 1,75,500<br>9. Loss of earning capacity 15,000 15,000<br>Total 3,06,960 3,84,251<br>====== ======<br>**----- End of picture text -----**<br> **MACA NO. 2051 OF 2012** **11** In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.77,291/- with interest at the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.10,000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited compensation to the appellant/petitioner in accordance with law. ma/24.01.2022 Sd/- **C.S.DIAS, JUDGE** ## **/True copy/**