Ibrahim Pulavattath (H) v. Mohammed Ali, Rafeeq V.B. and The Manager, Reliance General Insurance

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 4[TH] DAY OF JANUARY 2022 / 14TH POUSHA, 1943** **MACA NO. 1835 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 556/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/S:** IBRAHIM PULAVATTATH (H), NELLIKKATTIRI P.O.,, P.O.PETTIKKADA, C/O. ABDULLA, THALIYAPADATH HOUSE,, KATTOOR DESOM & VILLAGE, MUKUNDAPURAM TALUK. BY ADV SRI.V.BINOY RAM ## **RESPONDENT/S:** 1 MOHAMMED ALI ,S/O.ALAVI ERINJIKODI HOUSE, PERUMUDIYOOR P.O., PATTAMBI,, PALAKKAD DISTRICT. 679 303 2 RAFEEK V.B. S/O. V.V.BAVA VAZHAVALAPPIL (H), KASSAMKUNNU, SANKARAMANGALAM,, PATTAMBI, PALAKKAD DISTRICT.679 303 3 THE MANAGER RELIANCE GENERAL INSURANCE, AREA OFFICE,, 4TH FLOOR, ELIZABETH ALEXANDER MEMORIAL BUILDING,, SHANMUGHAM ROAD, MARINE DRIVE, COCHIN.682 031 BY ADVS. DR.ELIZABETH VARKEY SRI.K.J.SAJI ISAAC ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 04.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1835 of 2010 ## **C.S.DIAS, J.** ## **====================== MACA No.1835 of 2010** ## **====================== Dated this the 4[th] day of January, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.556/2007 on the file of the Motor Accident Claims Tribunal, Irinjalakkuda. 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 that he sustained in an accident on 1.12.2006. It was his case that, on the above said date, while he was riding pillion on a motor cycle bearing registration No.KL-9/T 1056 along the Thannerkod-Koottanad public road, a goods carriage auto-rickshaw bearing registration No.KL-9/R 2886 (autorickshaw), driven by the second respondent in a rash and negligent manner, hit the motor cycle on which the 3 MACA No.1835 of 2010 appellant was riding. The appellant sustained serious injuries and was admitted in the Amala Institute of Medical Sciences from 1.12.2006 to 11.12.2006. The appellant sustained a fracture of right clavicle, comminuted bilateral fracture of right maxilla and fracture of left zygoma. The appellant was a coolie worker by profession and was earning a monthly income of Rs.6,000/-. The first respondent was the owner and the third respondent was the insurer of the auto-rickshaw. Hence, the appellant claimed a compensation of Rs.4,43,000/- from the respondents, which claim was limited to Rs.3,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4. The third respondent had filed a written statement admitting that the auto-rickshaw had a valid insurance coverage. Nevertheless, the third respondent disputed the age, income and occupation of the appellant. 4 MACA No.1835 of 2010 The third respondent prayed that the claim petition may be dismissed. 5. The appellant produced and marked Exts A1 to A13 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to realise from the third respondent an amount of Rs.97,650/- with interest and proportionate cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.Binoy Ram.V the learned counsel appearing for the appellant/petitioner and Sri.K.J Saji Issac, the learned counsel appearing for the third respondent/insurer. 9. The sole question that arises for consideration in the appeal is whether the quantum of compensation 5 MACA No.1835 of 2010 awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Ext A2 charge-sheet filed by the Thrithala Police in crime No.325/2006 proves that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the auto-rickshaw. The respondents have not let in any evidence to discredit Ext A2 charge-sheet. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Notional Income** 11. The appellant had claimed that he was a coolie worker by profession and was earning a monthly income of Rs.6,000/-. For the want of materials, the Tribunal fixed the notional monthly income of the appellant at 6 MACA No.1835 of 2010 Rs.2,500/-. 12. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 13. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2006, I refix the notional monthly income of the appellant at Rs.5,500/-. ## **Multiplier** 14. Admittedly, the appellant was aged 36 years at the time of the accident. In view of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier to be adopted is '15'. ## **Disability** 15. The appellant had produced Ext A8 disability certificate issued by the Assistant Professor of 7 MACA No.1835 of 2010 Orthopedics, Medical College Hospital, Thrissur, who certified that the appellant has a whole-body disability of 14%. Nevertheless, the Tribunal fixed the permanent disability of the appellant at 7%. 16. In **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)]** , the Hon'ble Supreme Court has held that if the Tribunal is not satisfied with the disability certificate produced before it, it is imperative for the Tribunal to refer the injured-claimant to a duly constituted Medical Board. It is also observed, that what needs to be looked into in an injury claim is the functional disability of the injured-claimant. 17. In the instant case, Ext A8 disability certificate was marked without any demur or protest from the respondents. In such circumstances, the scaling down of the disability, without referring the appellant to a Medical Board, is erroneous and wrong. 18. On an evaluation of Ext A8, it is found that the 8 MACA No.1835 of 2010 appellant has mal-union of his right clavicle, which was assessed at 8% and mal-uinion of zygomatic maxilla,which was assessed at 5%. The other injury is the united fracture of maxilla, which has been assessed at 1%. 19. Taking note of the the first two injuries of nonunion and mal-union and considering the fact that the appellant was a coolie worker by profession, I fix his functional disability at 13%. ## **Loss due to disability** 20. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.5,500/-, the multiplier at 15 and his functional disability at 13%, I award the appellant an amount of **Rs.1,28,700/-** towards loss due to disability, instead of Rs.33,600/- awarded by the Tribunal. ## **Loss of earnings** 21. The Tribunal has found that the appellant was indisposed for a period of four months. I confirm the said 9 MACA No.1835 of 2010 finding. Nevertheless, in view of the refixation of the notional monthly income of the appellant at Rs.5,500/-, I hold that the appellant is entitled to an amount of **Rs.22,000/-** towards loss of earnings, instead of Rs.10,000/- awarded by the Tribunal. ## **Bystander expenses and Extra Nourishment** 22. The appellant was treated as an inpatient for a period of 10 days. The Tribunal has awarded only an amount of Rs.1,000/- towards bystander expenses, which is on the lower side. 23. Considering the fact that the appellant was treated as an inpatient for a period of 10 days and the accident occurred in the year 2006, I award him an amount of Rs.300/- per day for a period of 10 days towards bystander expenses and extra nourishment, which works out to **Rs.3,000/** - each under the above said heads. 10 MACA No.1835 of 2010 ## **Other heads of compensation** 24. With respect to the other heads of claim, viz., transportation expenses, pain and sufferings, medical expenses and loss of amenities, I find that the Tribunal has awarded reasonable and just compensation. 25. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the aforecited precedents, 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. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Loss of earnings|10,000/-|22,000/-| |2|Transportation expenses|1,000/-|1,000/-| |3|Extra nourishment|Nil|3,000/-| |4|Bystander expenses|1,000/-|3,000/-| |6|Medical expenses|27,050/-|27,050/-| |7|Pain and sufferings|15,000/-|15,000/-| |8|Loss of amenities etc|10,000/-|10,000/-| 11 MACA No.1835 of 2010 |9|Loss due to disability|33,600/-|1,28,700/-| |---|---|---|---| ||Total|97,650/-|2,09,750/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of **Rs.1,12,100/-** (Rupees One Lakh Twelve Thousand and One Hundred only) with interest at the rate of 7% per annum on the enhanced compensation from the date of claim petition till the date of realization and a cost of Rs.10,000/-. The third respondent/insurer is ordered to deposit the enhanced compensation with interest and costs 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 amount to the appellant, in accordance with law. Sd/- sks/4.1.2022 **C.S.DIAS, JUDGE**