Hassankutty Mundoli v. Fasalul Haque V., T.V. Balakrishnan and Oriental Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 27[TH] DAY OF JULY 2021 / 5TH SRAVANA, 1943 MACA NO. 1560 OF 2010** **AGAINST THE AWARD IN OP(MV)NO. 1355/2005 OF MOTOR ACCIDENT** # **CLAIMS TRIBUNAL, MANJERI** ## **APPELLANT/PETITINER:** ## **HASSANKUTTY MUNDOLI** **S/O.KUNHAMUTTY HAJI (LATE), KADIRIYA MANZIL,, NALLALAM P.O., KOZHIKODE, NOW RESIDING AT:, C/O.B.MOYIN HAJI, KALANTHODI HOUSE,, EDAPARAMBA, MORAYUR PO, MALAPPURAM DISTRICT. BY ADV SRI.P.VENUGOPAL (1086/92)** ## **RESPONDENTS:** **1 FASALUL HAQUE.V., S/O.KUNHIMOHAMMED, VALLIYIL HOUSE,, ALINCHUVADU P.O., TIRUR, MALAPPURAM DISTRICT.** **2 T.V.BALAKRISHNAN SO.NARAYANAN THANDAN VALAPPIL HOUSE, TIRUNAVAYA, TIRUR P.O.,, MALAPPURAM DISTRICT.** - **3 ORIENTAL INSURANCE COMPANY LIMITED BRANCH OFFICE, THAZHEPALAM, TIRUR,, MALAPPURAM DISTRICT, REPRESENTED BY ITS, MANAGER.** **BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No. 1560 of 2010 _2_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 1560 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27[th] day of July, 2021 ## **JUDGMENT** The appellant was the petitioner in OP(MV)No.1355 of 2005 on the file of the Motor Accidents Claims Tribunal, Manjeri. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief, relevant for the determination of the appeal, are : on 05.09.2002 while the was on appellant travelling pillion motorcycle bearing registration No.KL 11/N 3432 from Nallalm to Thenhipalam, a Car bearing registration No.KL 10/C 5042 (Car) driven by the 1[st] respondent came from the opposite side and hit the motorcycle. The appellant was thrown to the ground and sustained grievous injuries. He was treated at MACA No. 1560 of 2010 _3_ the Medical College Hospital, Calicut, Kozhikode District Co-operative Hospital, Calicut, Prasanthi Ayurveda Hospital, Kondotty and Ganga Hospital, Coimbatore. The sustained a appellant rotary sublixation of the attanto - axial joint with quadriplegia, fracture both rami (R) public bone - right superior rami and antero lateral disability of (Lt) knee. He underwent in-patient treatment in the above four hospitals for a period of 151 days. The appellant was doing business in Ras al Khaimah, UAE and drawing a monthly income of Rs.35,000/-. The Car was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The appellant claimed a total compensation of Rs.10,00,000/from the respondents, but limited the same to Rs.8,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. MACA No. 1560 of 2010 _4_ 4. The 3[rd] respondent filed a written statement admitting that the Car had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence on the part of the rider of the motorcycle. Therefore, the claim petition was bad for non-joinder of necessary parties. 5. The appellant was examined as PW1 and Exts.A1 to A14 series were marked in evidence. The disability certificate issued by the Medical Board and the commission report were also marked in evidence as Exts. X1 and C1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to realise an amount of Rs.5,20,861/- with interest at the rate of 7% per annum from the date of petition till the date of realisation along with cost of Rs.1,500/-. MACA No. 1560 of 2010 _5_ 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard Sri.P.Venugopal, the learned counsel appearing for the appellant and Sri. P. Jacob Mathew, the learned Counsel appearing for the 3[rd] respondent – insurance company. 9. The sole question that emerges for consideration in this appeal whether the quantum of compensation awarded by the Tribunal is reasonable and just? 10. Ext.A3 charge-sheet filed by the police proves that the accident occurred on the account of the negligence on the part of the 1[st] respondent, who drove the Car in a negligent manner. Admittedly, the Car was owned by the 2[nd] respondent and insured with the 3[rd] respondent. Therefore, the 3[rd] MACA No. 1560 of 2010 _6_ respondent is to indemnify the 2[nd] respondent for the liability that has arisen due to the accident. 11. The appellant had claimed that he was an NRI and running a Supermarket in Ras al Khaimah, UAE. He claimed that he was earning a monthly income of Rs.35,000/-. The appellant produced Ext.A13 series documents – the copies of the passports of himself, his wife and son. The passport of the appellant is stamped to with the resident visa issued by the United Arab Emirates showing that the appellant was a resident of UAE from 07.09.1999 to 06.09.2002 and, thereafter, from 31.07.2002 to 30.07.2005. Therefore, as on the date of accident i.e. 05.09.2002, the appellant was holding a resident Visa in the United Arab Emirates. Hence, it is only to be accepted that the appellant was employed and residing abroad. Nevertheless, the appellant did not MACA No. 1560 of 2010 _7_ produce any documents to substantiate his income. 12. In **United India Insurance Company Ltd. v Satinder Kaur @ Satwinder Kaur and others** [2020 (3)KHC 760] the Hon'ble Supreme Court has held that in order to prove that a person is earning income from abroad, it is imperative that he produces a salary/income certificate attested by the Indian missions abroad namely the in the overseas Embassy/Consulate functioning country. The said view was also taken by a Division Bench of this Court in **National Insurance Company Ltd., Thalassery v. Ramla and others** [2016 (4) KHC 891(DB)]. 13. Another Division Bench of this Court in **Valsamma v. Binu Jose** [2014(1) KLT 10) has held that if persons are not permanently employed abroad and there is no proof of income, then the MACA No. 1560 of 2010 _8_ Indian standards have to be adopted for fixing the income of the injured/deceased. 14. In the instant case, as seen from Ext.A13 series documents, the appellant was holding a resident Visa for the period from 31.07.2002 to 30.07.2005. Thus, the appellant was an NIR. Nevertheless, for the want of documents, I fix his notional income at Rs.4,500/- following the ratio in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [ _(2011) 13 SCC 236_ ], though the income fixed for a Coolie worker in India was Rs.4,500/- in the year 2004. As the appellant was an NRI, I hold that he was earning a monthly income of Rs.4,500/-. ## **Loss of earnings** 15. It is on record that the appellant was incapacitated for a period of 12 months and was MACA No. 1560 of 2010 _9_ under prolonged treatment, which view was taken by the Tribunal. Therefore, in view of the re-fixation of the notional income at Rs.4,500/- per month, I re-fix his 'loss of earnings' at Rs.54,000/- instead of Rs.36,000/- awarded by the Tribunal. ## **Disability** 16. The disability of the appellant was assessed by the District Medical Board, District Hospital, Manjeri, who by Ext.X1 certified that the appellant has a permanent disability of 40%. I confirm and accept the findings of the Medical Board in Ext.X1 certificate. ## **Future prospects** 17. In **Pappu Deo Yadav v. Naresh Kumar and Others** (AIR 2020 SC 4424) and a line of decisions the Hon'ble Supreme Court has held that a person who suffers from a severe permanent MACA No. 1560 of 2010 _10_ disability is also entitled for future prospects as in the case of death. In the case on hand, the appellant has suffered 40% permanent disability. He was aged 32 years at the time of accident and the relevant multiplier is '16'. Hence, the appellant is entitled for future prospects at 40% on the total compensation for 'loss due to disability' ## **Loss due to disability** 18. In view of the above mentioned factors namely the monthly income of the appellant at Rs.4,500/-, his disability being 40%, multiplier being '16', future prospects at 40%, I hold that the appellant is entitled for compensation under the had 'loss due to disability' at Rs.4,83,840/- instead of Rs.2,30,400/- awarded by the Tribunal. ## **Byestander expenses** 19. The Tribunal awarded an amount of MACA No. 1560 of 2010 _11_ Rs.15,100/- towards 'bye-stander expenses' at Rs.100/- per day for 151 days. This according to me is on the lower side. Taking into account that the accident was in the year 2002, I hold that the appellant is entitled for 'bye-stander expenses' at Rs.200/- per day for a period of 151 days, i.e., a total amount of Rs.30,200/-. ## **Extra nourishment** 20. The appellant had claimed an amount of Rs.25,000/- towards 'extra nourishment', but the Tribunal did not award any amount under the said head. Taking into account the severe injuries that the appellant sustained and that he was treated as an in-patient for 151 days, I hold that Rs.5000/- has to be awarded under the said head. ## **Loss of amenities** 21. The appellant had claimed an amount of MACA No. 1560 of 2010 _12_ Rs.20,000/- under the head 'loss of amenities'. Nevertheless, the Tribunal did not award any amount under the said head. Taking into account the injuries that the appellant sustained, that he has suffered 40% permanent disability and that he was treated as an in-patient for a period of 151 days in four different hospitals, I hold that the appellant is entitled for compensation for 'loss of amenities' as claimed in the claim petition at Rs.20,000/-. ## **Other heads of claim** 22. With respect to the other heads of compensation, the Tribunal has awarded reasonable and just compensation. 23. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the afore-cited decisions, I am of the definite opinion that the appellant/petitioner is entitled for MACA No. 1560 of 2010 _13_ enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl.<br>No|Heads of claim|Amount awarded by the<br>Tribunal (in rupees)|Amounts modified<br>and recalculated<br>by this Court| |---|---|---|---| |1|Transport|28,973/-|28,973/-| |2|Clothing|250|250/-| |3|Loss of earnings|36,000/-|54,000/-| |4|Bye-stander expenses|15,100/-|30,200/-| |5|Extra nourishment|nil|5,000/-| |6|Medical expenses|1,65,138/-|1,65,138/-| |7|Pain and sufferings|25,000/-|25,000/-| |8|Loss of amenities|nil|20,000/-| |9|Future treatment|10,000/-|10,000/-| |10|Compensation<br>for<br>disfigurement|10,000/-|10,000/-| |11|Loss due to disability|2,30,400/-|4,83,840/-| |||5,20,861/-|8,32,401/-| In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.3,11,540/- with interest on the enhanced compensation at the rate of 7% per annum from the date of petition till the date of deposit and proportionate costs, after deducting the liability of MACA No. 1560 of 2010 _14_ the appellant/petitioner towards balance court fee, if any. The 3[rd] respondent shall deposit the enhanced compensation awarded in this appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant in accordance with law. **Sd/- C.S.DIAS,JUDGE** dlK 27.07.2021