Imthyas v. Alavikutty Karuthedath & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 10[TH] DAY OF JANUARY 2022 / 20TH POUSHA, 1943** ## **MACA NO. 1709 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 256/2009 OF MOTOR ACCIDENTS CLAIMS** ## **TRIBUNAL , MANJERI** ## **APPELLANT/PETITIONER:** **IMTHYAS AGED 22 YEARS S/O.MOHAMMED ASAM, 66/C, MOUFIDUL ISLAM LANE, ENTALLY P.O., KOLKATTA - 700 014, NOW RESIDING AT C/O.T.V.QUARTERS, ATHANIKKAL, VALLUVAMBRUM P.O., MALAPPURAM DISTRICT. BY ADV SRI.K.ABDUL JAWAD** ## **RESPONDENTS/RESPONDENTS:** **1 ALAVIKUTTY KARUTHEDATH, S/O.POCKER.K., MESTRIYEL HOUSE, ARAVANKARA, POOKOTTUR P.O., MALAPPURAM DISTRICT (DRIVER), PIN - 676 505. 2 SHIHABUDHEEN S/O.ALAVIKUTTY, KARUTHEDATH, ARAVANKARA NEW BAZAR, POOKOTTUR P.O., MALAPPURAM DISTRICT (OWNER), PIN - 676 505. 3 NATIONAL INSURANCE COMPANY LIMITED KORAMBAYIL ARCADE, PANDIKKAD ROAD, MANJERI, MALAPPURAM-676 505. BY ADVS. SRI.RAJESH THOMAS SMT.SARAH SALVY SRI.M.A.GEORGE** ## **OTHER PRESENT:** ## **SMT. SARAH SALVY-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **10.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1709 OF 2012 2 ## **JUDGMENT** Appellant is the claimant in O.P.(M.V.)No.256/2009 on the file of Motor Accidents Claims Tribunal, Manjeri. Claim petition was filed under Section 166 of the Motor Vehicle Act, 1988 (in short, the Act) for the injuries sustained by the claimant out of a motor accident occurred on 20.01.2008 at about 4 p.m. 2. It is alleged that the appellant/claimant was riding a motorcycle along with his friend and while reached at Aravankara at about 4 p.m on 20.01.2008 a maruti car bearing registration No.KL10 W 363 hit against the motorcycle with Reg.No.KL-10 S 2012 ridden by the claimant and thereby he sustained injuries. It is alleged that the accident happened due to the negligence of the first respondent driver of the car. Second respondent is the owner of the car. Third respondent is the insurer of the offending vehicle. 3. Before the Tribunal, respondents 1 and 2 remained ex parte. Third respondent filed written statement admitting the policy coverage with respect to the offending vehicle. 4. But it is contended that the registration number of the motorcycle ridden by the claimant was not correctly stated in the M.A.C.A.No.1709 OF 2012 **==> picture [8 x 9] intentionally omitted <==** petition. It is also contended that the claimant was riding the motorcycle in a rash and negligent manner without any licence. 5. There was no oral evidence adduced from both sides. Exts.A1 to A7 series were marked from the side of the claimant and Ext.X1 the report of the Medical Board was marked in addition. 6. On evaluating the materials produced from the side of the claimant and also the averments in the claim petition, the Tribunal awarded a total compensation of Rs.1,89,964/- with interest at the rate of 9% per annum from the date of petition i.e 21.06.2008. Dissatisfied with the quantum of compensation awarded by the Tribunal the appellant came up in appeal. 7. Notice was issued to the respondents. Adv. Sarah Salvy appeared on behalf of the third respondent. Since the third respondent admitted the insurance policy, service of notice on respondents 1 and 2 dispensed with at the risk of the appellant. Both sides were heard. LCR was called for and perused. 8. According to the learned counsel for the appellant/claimant (hereinafter be referred as claimant), the claimant was a 22 year old cobbler and was also a bachelor and due to the serious injuries sustained by him permanent disability M.A.C.A.No.1709 OF 2012 4 has been caused and hence the compensation awarded under various heads are very low. Learned counsel would contend that the monthly income claimed by the claimant was Rs.5,000/- per month. But the Tribunal fixed the income notionally as Rs.2,500/-, which, according to the learned counsel, is too low. It is also contended that though Ext.X1 disability certificate issued by the Medical Board was produced the Tribunal was inclined to take only half of it for computing the loss of earning power, which is also not proper, according to the learned counsel. It is further contended that no amount was awarded towards marriage prospects. The judgment of the Tribunal would show that the claimant was present before the court and the court also noted that he was limping and there was disfigurement of his right leg and hence Rs.50,000/- claimed towards marriage prospects ought to have allowed. So, in short, according to the learned counsel, the award passed by the Tribunal is very meagre when compared to the serious nature of injuries sustained by the claimant. 9. Learned Standing Counsel for the third respondent on the other hand would vehemently contend that very just and reasonable compensation has been awarded by the Tribunal and M.A.C.A.No.1709 OF 2012 5 no further enhancement is required to be passed in this case. It is further contended that 42% disability is noted as permanent partial disability and hence computation of loss of earning power by the Tribunal is also just and proper and no interference is called for. 10. In view of the rival contentions advanced from both sides, the following points arose for consideration: 1. Whether monthly income notionally fixed by the Tribunal is correct? 2. Whether the loss of earning power and the amount fixed therein by the Tribunal call for any interference? 3. Whether any enhancement is required under other heads awarded by the Tribunal. ## 11. **Point:No1:** Rs.5,000/- per month has been claimed as monthly income in the claim petition. He is claimed to be a cobbler, aged 22 years. The incident occurred on 20.01.2008. No evidence either oral or documentary adduced to prove the income. So rightly Tribunal fixed the income notionally. But the question is whether the amount of Rs.2,500/- fixed notionally is correct or not. M.A.C.A.No.1709 OF 2012 6 12. In Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. 13. In Syed Sadiq Etc. v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735], taking note of the earlier M.A.C.A.No.1709 OF 2012 7 decision in Ramachandrappa's case (supra), the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganised sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 14. In the present case, the claimant is said to be a cobbler and the accident occurred in the year 2008. Hence the monthly income of Rs.5,000/- claimed by him seems to be just proper. Hence I accept the monthly income of the claimant as Rs.5,000/per month, instead of Rs.2,500/- notionally fixed by the Tribunal. Point so found. ## 15. **Point Nos.2 and 3** : In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] the Apex Court laid down the M.A.C.A.No.1709 OF 2012 **==> picture [8 x 9] intentionally omitted <==** principles to be followed while fixing compensation under various heads in injury matters and how the computing could be made with respect to the injury and the permanent disability and the loss of earning capacity. 16. It has been held by the Apex Court that in cases where claimant suffers permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of common disability of his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. What is to be assessed is the effect of permanent disability on the earning capacity of the injured and after assessing the loss of earning capacity in terms of percentage of the income, it has to be quantified in terms of money to arrive at the future loss of earnings. 17. In the present case, according to the learned counsel, the claimant was treated as inpatient at Medical College Hospital, Kozhikode from 20.01.2008 to 14.02.2008 and hence he has undergone inpatient treatment for 26 days. The Tribunal M.A.C.A.No.1709 OF 2012 9 ## awarded the following amount as compensation. |Head under which<br>compensation<br>is<br>claimed|Amount<br>claimed<br>(in Rs.)|Amount<br>allowed<br>(in Rs.)|Basis<br>on<br>which<br>allowed/disallowed<br>with reasons in a nut-<br>shell| |---|---|---|---| |Loss of earning|60,000|7,500|3 months| |Partial loss of earning|30,000|3,750|3 months| |Future treatment|10,000||| |Medical expenses|15,000|2,964|Ext.A7 series| |Bystander expenses|5,000|2,600|26 days| |Damage to clothingetc.|500|250|Nominal amount| |Transportation|2,000|500|Nominal amount| |Extra nourishment|2,500|---|| |Pain and suffering|25,000|9,000|Fractures| |Loss of love and<br>affection||---|---| |Loss of consortium||----|----| |Loss of estate||----|---| |Loss of dependency/<br>economic benefits||-----|---| |Loss of amenity and<br>conveniences|25,000|50,000|Shortening of leg,<br>disfigurement at a<br>youngage| |Loss<br>of<br>earning<br>power/disability|2,25,000|1,13,400|2500x12x18x42/100x<br>1/2| |Any other heads/loss of<br>marriage prospects|50,000||| |Total|6,75,000/-<br>Limited<br>to<br>4,25,000|1,89,964|9% p.a. interest on<br>award amount from<br>date of petition.| 18. The Tribunal awarded three months loss of earning at the rate of 2,500/-. Considering the nature of injuries and the period of treatment undergone by the claimant, the loss of M.A.C.A.No.1709 OF 2012 10 earning computed for three months by the tribunal cannot be said as wrong. Loss of earning can be computed as **Rs.7,500/-** [5,000x3–7,500]. Towards the partial loss of earning, the Tribunal awarded further three months compensation that also can be enhanced. Accordingly, **Rs.3,750** /- is awarded [5000x3x½-3750]. 19. The next head disputed by the learned counsel is with respect to the loss of earning power. The Tribunal has calculated it as Rs.1,13,400/- (2500x12x18x42/100x½). Injury sustained is Type III B open SC fracture (Rt) femur. The learned counsel drew my attention to Ext.X1 the disability certificate which would prove the detailed treatment and other procedures undergone by the claimant at the Medical College Hospital. It has been certified that there was shortening of right lower limb, 3 cm and the award passed by the Tribunal would also show that the claimant was present before the Tribunal on 13.06.2012. The Tribunal noted that the claimant was limping and there has been disfigurement of his right leg. Medical Board fixed permanent partial disability due to the RTA at 42%. That was accepted and accordingly the Tribunal fixed Rs.1,13,400/- towards loss of earning power. M.A.C.A.No.1709 OF 2012 11 20. The learned counsel highlighted the fact that the claimant was a cobbler and hence the accident and resultant injuries and the disability affects his avocation to a great extent being a cobbler. I find some substance in the argument so advanced by the learned counsel. 21. Being a cobbler, he should stand and stretch his legs occasionally to carry out his work. So the disability caused to him will affect his avocation considerably. Tribunal further divided the amount by half for the reason that disability may not totally affect his earning capacity. In Raj Kumar's case, in para No.18, the Apex Court discussed the mode of assessment of disability on the basis of disability certificate. It has been discussed that where disability certificate refers to disability with reference to a limb, it cannot be considered to be the functional disability of the whole body. The point is as to what extent the disability caused would affect his earning capacity. In order to assess the same, the avocation and the part of the body, where injury is caused, will be material. 22. In this case, claimant is a cobbler who is a native of Calcutta. He might have migrated to our State to find out some source of livelihood. In Ext.X1 the Medical Board certifies 42% of M.A.C.A.No.1709 OF 2012 12 permanent partial disability. There is shortening of ® lower limb 3cm; only 5 to 10 degree flexion present and it is also certified that walking on slope, climbing stair, standing on affected leg, squatting on floor, sitting, kneeling etc. would be difficult. Being a cobbler he will have to sit, squat on floor for considerable time. So the disability would affect his earning capacity as a cobbler to a great extent. So deduction of amount by half after computing the loss of earning power will not be a just compensation as far as the claimant is concerned. So I am of the considered view that 42% permanent partial disability certified by the Medical Board can be taken as 30% permanent functional disability of whole body. So compensation towards loss of earning power would be Rs.3,24,000/- [5000x12x18x30/100]. From that, the amount already awarded is to be deducted, then balance amount will be **Rs.2,10,600/-** [324000-113400]. 23. Though the learned counsel further contends about the loss of amenity and inconvenience, the Tribunal already awarded Rs.50,000/- against a claim of Rs.25,000/- towards shortening of leg and disfigurement at a younger age. So I do not think that any further enhancement is required under that head. 24. The learned counsel further contends about the loss of M.A.C.A.No.1709 OF 2012 13 marriage prospects. It has come out from the award as well as Ext.X1 certificate of the Medical Board that there is shortening of right lower limb by 3 c.m and the award passed by the Tribunal also would show that the claimant was limping and there was disfigurement to his right leg. So the above factors would definitely affect his marriage prospects. So an amount of **Rs.10,000/** - is awarded towards loss of marriage prospects. Towards pain and suffering, though an amount of Rs.25,000/was claimed, only Rs.9,000/- was awarded. That appears to be very low in view of the grievous nature of injuries and 26 days of inpatient treatment at Medical college Hospital, Kozhikkode. - Hence **Rs.10,000/** is further awarded towards pain and suffering. 25. In the result, the appellant/claimant is allowed to realise enhanced compensation of **Rs.2,41,850/-** (Rupees two lakhs forty one thousand eight hundred and fifty only) [7500+3750+210600+10000+10000] in this appeal, which will carry interest at the rate of **7.5%** per annum from the date of petition till realisation. Respondent No.3 is directed to pay the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt M.A.C.A.No.1709 OF 2012 14 of certified copy of this judgment, after deducting the liability, of the appellant/claimant towards Balance Court Fee. 26. The disbursement of additional compensation to appellant shall be made taking note of the law on the point and in terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. Appellant/claimant shall provide his Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, within one month from the date of receipt of a certified copy of this judgment. Parties shall bear their respective costs. **==> picture [29 x 13] intentionally omitted <==** ## **M.R.ANITHA** **JUDGE** shg