Hussain v. Shuhaib P.M. and ors.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 5TH DAY OF DECEMBER 2017 / 14TH AGRAHAYANA, 1939 **MACA.No. 340 of 2010** AGAINST THE AWARD IN OPMV 618/2007 of M.A.C.T OTTAPPALAM DATED 07-07-2009 ## **APPELLANT/PETITIONER** HUSSAIN, AGED 30 YEARS S/O. MUHAMMED, MADAPPAN HOUSE, ANDATHODE.P.O.,THRISSUR-679564. BY ADV.SRI.SHEJI P.ABRAHAM ## **RESPONDENTS/RESPONDENTS** : 1. SHUHAIB P.M., S/O.MYUHAMMED.P. PARAYAMPARAMBIL HOUSE, ANDATHODE.P.O., THRISSUR. DRIVER OF AUTO RICKSHAW. 2. P.M.LATHIEF, AGE NOT KNOWN PARAYAMPARAMBIL HOUSE, ANDATHODE.P.O., THRISSUR,OWNER OF AUTO RICKSHAW. 3. THE NEW INDIA ASSURANCE CO. LTD., ANUGRAHA BUILDING,VADAKKANCHERRY ROAD, KUNNAMKULM. VALID FROM 28-6-2006 TO 27-6-2007. R1 BY ADV. SRI.RAJIT R1 BY ADV. SRI.RANJIT BABU R2 BY ADV. SRI.R.SREEHARI R2 BY ADV. SRI.SACHIN VYAS R3 BY ADV. SMT.M.HEMALATHA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** ------------------------------- M.A.C.A.No.340 of 2010 -------------------------------Dated 5[th] December, 2017 ## **JUDGMENT** ## **Mary Joseph, J.** The aggrieved claimant in a claim petition preferred as O.P. (M.V)No.618 of 2007 before the Motor Accidents Claims Tribunal, Ottappalam (for short 'the Tribunal') has approached this Court as appellant seeking enhancement of compensation. The parties to this appeal shall be referred to hereinafter in accordance with their status before the Tribunal as 'the claimant' and 'the respondents'. 2. The claimant met with a motor accident on 13.2.2007 at 11 a.m. when the autorickshaw in which he was travelling overturned due to the rash and negligent driving by its driver, the 1[st] respondent and consequently sustained injuries. The autorickshaw, at the relevant time, was admittedly owned by the second respondent and insured with the third respondent. Seeking compensation of `1,50,000/-, the claim petition was preferred by the appellant/claimant as O.P.(M.V)No.618 of 2007 before the Tribunal. 3. The Tribunal had considered the claim petition after appreciating the documentary evidence of Exts.A1 to A9, which alone M.A.C.A.No.340 of 2010 2 was let in by the claimant. Before the Tribunal, the driver and owner of the autorickshaw remained _ex parte and t_ he claim petition was only contested by the insurer of the autorickshaw. Either oral or documentary evidence was not let in by the insurer. 4. In the computation of the compensation by the Tribunal, a sum of 53,450/- was arrived at and the third respondent was₹ directed to deposit the same with interest at the rate of 8% per annum from the date of the claim petition till realisation. The Tribunal found from the evidence adduced by the third respondent, the insurer that the insured, allowed the first respondent, who was not possessed with a valid driving licence, to drive the offending vehicle and that being a violation of the policy conditions, allowed the insurer to recover the compensation from the insured after depositing the same in favour of the petitioner. 5. It is solely aggrieved by the quantum of compensation awarded by the Tribunal, the claimant has approached this Court in the captioned appeal seeking enhancement. 6. Sri.Sheji P. Abraham, the learned counsel for the claimant contended that the compensation awarded by the Tribunal under various heads is meagre and disproportionate to the hardships met with by the claimant due to the accident. According to him, the M.A.C.A.No.340 of 2010 3 monthly income of the claimant was not fixed by the Tribunal while computing the compensation for loss of earning and an amount of `9000/- was awarded in lumpsum under the head 'loss of earning', in utter disregard of the pleas of the claimant that he was aged 34 years, and a driller by profession. It is also not clear from the award, what is the duration for which loss of earning was considered. It is contended by the learned counsel that though it is established before the Tribunal by valid medical documents that the claimant had sustained comminuted fracture of patella of his left knee and had undergone treatment as inpatient for 15 days at Sevana Hospital, Pattambi, the sum arrived at as compensation under the head `pain and suffering' is only 12,000/-, which is inadequate and highly unreasonable. The₹ learned counsel has drawn our attention to the amounts awarded as compensation under the heads `bystander expenses', `transportation expenses', `extra nourishment' and `damages to clothing', to contend that, the calculation is improper and is made on an improper appreciation of the evidence on record. The learned counsel has also contended that the compensation for loss of amenities was arrived at by the Tribunal without application of mind to the actual sufferance of the claimant. Raising the contentions as above, the learned counsel urged for a re-visitation of the award and re-fixation of compensation. M.A.C.A.No.340 of 2010 4 7. Per contra, Smt.Hemalatha.M., the learned counsel appearing for the third respondent has contended that the compensation awarded by the Tribunal under various heads is reasonable in all respects and interference is totally uncalled for. 8. We have gone through the description in the impugned award about the documentary evidence adduced by the claimant before the Tribunal. The documentary evidence, as we have already stated, consist of Exts.A1 to A9. Ext.A2 is the Accident Register-cum-Wound Certificate issued from Sevana Hospital, Pattambi which reveals the claimant's admission therein firstly on 13.2.2007. Ext.A7 series are the discharge summary cards issued from the very same hospital and it disclose the successive spells of hospitalization for treatment following the accident. It is evident therefrom that the claimant had inpatient treatment at Sevana hospital for a total period of 15 days. It is further evident that the claimant had sustained comminuted fracture of patella of his left knee and was subjected to a surgical procedure of laying implants. As evidenced by the medical bills, marked as Exts.A6 and A9, the claimant had expended a sum of `21,177/- for treatment. As rightly put forth by the learned counsel the monthly income of the claimant was not fixed by the Tribunal and a lumpsum amount of `9,000/- was awarded under the head `loss of earnings'. The plea of M.A.C.A.No.340 of 2010 5 the claimant was that he was a Driller by profession and aged 30 years. The accident was in the year 2007. Therefore, the Tribunal ought to have adverted to the dictum of the Apex Court in _**Ramachandrappa** v._ _**Manager, Royal Sundaram Alliance Insurance Company Limited**_ _**((2011) 13 SCC 236)**_ wherein the Apex Court has directed that `4500/- can be taken as the monthly income in the case of a coolie worker, who met with a motor accident in the year **2004** . The claimant in the case on hand met with the motor accident in the year 2007 and being a man aged only 30 years, in view of the decision supra, we feel it just and proper to consider `6000/- as his monthly income. In view of the seriousness of the injuries sustained by the victim, it is appropriate to take loss of earning for three months. When the computation is done in the way, the claimant would be entitled to get a sum of `18,000/under the head loss of earning. The sum awarded by the Tribunal under the head being `9,000/-, the sum payable in addition in our computation in the way as stated above would be `9,000/-. 9. Under the head `pain and sufferings', the Tribunal has awarded `12,000/-. Indisputably, the same is disproportionate to the injuries sustained and we are inclined to grant `8,000/- more under that head. The sum awarded as compensation under the head `loss of M.A.C.A.No.340 of 2010 6 amenities' is only `6,000/- which, according to us, is also not a compensation commensurate with the hardships to which the claimant was put to by the accident. Therefore, we are inclined to fix it as `15,000/-, thereby making the claimant entitled to get 9,000/- in₹ addition. Under the head `bystander expenses', the Tribunal has awarded `2,250/- by considering `150/- per day. The accident having been occurred in the year 2007, we will be justified to consider `200/per day and in the computation with the amount re-fixed, the claimant would be entitled to get `750/- in addition. The sum awarded under the heads `transportation expenses', `extra nourishment' and `damages to clothing', being a consolidated sum, we are inclined to re-fix it individually. Since the claimant had sustained comminuted fracture of patella of left knee and undergone the surgical procedure of laying of implants, definitely the claimant must have been forced to attend the hospital more than once. Considering that aspect, we are inclined to grant a sum of `1,500/- under the head `transportation expenses'. The award is silent, about the manner in which the compensation for `extra nourishment' was arrived at by the Tribunal. In our view `100/- is a reasonable sum and in the computation with the said sum, `1,500/would be payable under that head. `Damages to clothing' being a M.A.C.A.No.340 of 2010 7 probable consequence of the accident and in the absence of any sum awarded by the Tribunal as compensation under that head, we are constrained to award 1,000/- under that head. ₹ 10. When computation is done in the way as aforesaid, the total sum payable under the three heads together would come to `4,000/-. When the consolidated sum of `3000/- is deducted from the total sum now arrived at by us, the claimant would be entitled to get `1,000/- in addition. Thus, a total sum of `27,750/- is found payable to the claimant as additional sum in our interference as aforesaid. 11. During the course of argument, the learned counsel representing the parties have submitted that subsequent to the passing of the award, a revised award was passed by the Tribunal on production of the driving licence by the first respondent and thereby, the direction in the original award granting permission to the third respondent to get recovery of the amount after payment, jointly from the first and second respondents was set aside. As per the revised award, the entire liability to compensate the claimant is fixed on the third respondent, the insurer. 12. In the result, a sum of ₹`27,750/- is found as the compensation payable to the claimant in addition. Needless to say that the said amount will carry interest at the rate of 8% per annum from M.A.C.A.No.340 of 2010 8 the date of the claim petition till the date of realisation. The third respondent is directed to deposit the said sum with interest, as aforesaid within one month from the date of receipt of a copy of this judgment. The appeal is disposed of as above. No order as to costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **MARY JOSEPH Judge** TKS _Continued at Page -9-_ M.A.C.A.No.340 of 2010 9 The judgment dated 05/12/2017 in M.A.C.A.No.340/2010 is corrected by incorporating the words “ **exempting the period of delay of 121 days occurred in the matter of filing appeal** .” after the words “ **till the date of realisation** ” occurring in the second sentence of paragraph 12 of the judgment, at page No.8, vide order dated 02/03/2018 in M.A.C.A.No.340/2010. Sd/Registrar (Judicial)