Ishak v. Shibu and Sulaiman and Oriental Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 16[TH] DAY OF JUNE 2022 / 26TH JYAISHTA, 1944** **MACA NO. 2160 OF 2013** **AGAINST THE COMMON AWARD IN OP(MV) 383/2010 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** ISHAK, AGED 33 YEARS, S/O.SAIDMUHAMMED T.R, THOTTAPPIL RAMLAN HOUSE, NEAR HOSPITAL ROAD, KADAPPRAM P.O, ANCHANGADI, CHAVAKKAD, THRISSUR. BY ADVS. SRI.SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN ## **RESPONDENTS/RESPONDENTS:** 1 SHIBU, S/O.VELU, KODAKKATTU HOUSE, VELLILA DESOM, MANGADU VILLAGE, MALAPPURAM – 676505. (DRIVER OF THE CAR BEARING REG. NO.KL60 4821) 2 C.SULAIMAN, AGE NOT KNOWN S/O.P.AHAMMED HAJI, CEEYAS, KOLAVAYAL(PO), KOLAVAYAL, KANJANGAD, KASARAGOD -671 121. (OWNER OF CAR BEARING REG. NO.60/4821) 3 THE ORIENTAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, PRANAVAM, MELEPATTAMBI, PATTAMBI – 679 581. POLICY NO.441099/31/2009/2335 VALID FROM 12-3-2009 TO 11-3-2010 BY ADV. SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING FINALLY HEARD ON 16.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.2160 of 2013** 2 ## **JUDGMENT** This appeal arises out of award dated 15.07.2013 in O.P.(M.V) No.383/2010, on the file of Motor Accidents Claims Tribunal, Ottapalam. The appellant herein is the original petitioner, where the original respondents before the Tribunal are the respondents. 2. Heard the learned counsel for the appellant as well as the learned Standing Counsel for the Insurance Company. 3. Brief facts of the case: According to the appellant, on 12.01.2010 at about 12:15 p.m., while the appellant was riding a motorcycle bearing registration No.KL- 46 B-3972 with one Shameer as a pillion rider along Chavakad-Ponnani public road and when the motorcycle reached at Puthiyarapallu, a car bearing registration No.KL-60-4821 driven by R1, in a rash and negligent manner came from 3 ## **M.A.C.A No.2160 of 2013** the opposite direction dashed against the bike. Thereby the rider and pillion rider fell down on the road. The appellant sustained severe injuries and the pillion rider succumbed to the injuries. On the above facts, an application under Section 166 of the Motor Vehicles act was preferred by the appellant before the M.A.C.T, Ottapalam claiming compensation to the tune of Rs.8,00,000/- from respondents 1 to 3. 4. The 3[rd] respondent, Insurance Company filed written statement denying negligence on the part of 1[st] respondent while admitting policy of the offending vehicle. Quantum of compensation also was disputed. 5. The Tribunal jointly tried O.P.(M.V) Nos.383/2010 and 389/2010. PWs.1 to 3 were examined and marked Exts.A1 to A26 on the side of the claimants. No evidence let in by the respondents. 6. The Tribunal appraised the evidence and finally granted Rs.4,66,120/- as compensation 4 ## **M.A.C.A No.2160 of 2013** along with 9% interest. 7. While assailing the award on the ground of insufficiency, the learned counsel for the appellant argued that though the monthly income of the appellant was claimed at Rs.4,500/being a coolie worker, who was aged 20 years, the Tribunal fixed the same at Rs.3,000/- per month. Since the accident is of the year 2010, applying the ratio in _**Ramachandrappa v.**_ _**Manager, Royal Sundaram Alliance Insurance**_ _**Company Ltd.**_ : **(2011) 13 SCC 236,** the income claimed as such is liable to be accepted. Therefore, Rs.4,500/- per month ought to have been fixed as the monthly income in this case. This aspect is not disputed by the learned counsel for the Insurance Company. 8. The learned counsel for the appellant would submit that though as per Ext.A12 disability certificate issued by PW3, who authored the same, functional disability is ## **M.A.C.A No.2160 of 2013** ## 5 something more and, therefore, the functional disability is liable to be assessed and compensation to be recalculated. However, the said contention is strongly opposed by the learned counsel for the Insurance Company on the ground that functional disability not either assessed in Ext.A12 or brought through the evidence of PW3. 9. On perusal of Ext.A12, on clinical and radiological examination done on 19.11.2010, PW3 examined the appellant and ultimately assessed whole body disability at 22%, after separately showing limb disability under three different heads. The same is extracted here under: - _1) Mal united fracture of both bone (R) leg._ - _2) He has hypertrophic non union (70%) rigidity) of femur (R). Interlocking nail is broken and distel screw site._ - _3) He has stiffness of (R) knee Range 0- 100[0] , Normal 0-135[0.]_ 10. The evidence of PW3 is also in support **M.A.C.A No.2160 of 2013** **==> picture [7 x 9] intentionally omitted <==** of Ext.A12. The Tribunal already accepted 22% as the disability. Therefore, I am not inclined to assess the functional disability, for want of sufficient materials to do the said exercise. Thus, the compensation granted by the Tribunal is recalculated on the basis of Rs.4,500/- as the monthly income. 11. According to the learned counsel for the appellant, though the appellant underwent inpatient treatment for 52 days and was incapacitated in doing any work for a period of one year, the Tribunal granted 'loss of earnings' for a period of six months only. Therefore, he canvassed increase under the head 'loss of earnings'. The learned counsel for the Insurance Company opposed this contention on the submission that six months 'loss of earnings' granted by the Tribunal is reasonable and no further increase is justified. 12. Having gone through the injuries and treatment as borne out from Exts.A14 and A22 ## **M.A.C.A No.2160 of 2013** 7 discharge summaries, I am of the view that the 'loss of earnings' granted by the Tribunal in this case is not justified. Therefore, I am inclined to increase the same for a period of 10 months. Thus, 'loss of earnings' entitled by the appellant is recalculated as, 4500 x 10 = 45,000/-. Out of which, Rs.21,000/- was granted by the Tribunal. Thus, **Rs.24,000/-** more is granted under the head 'loss of earnings'. 13. That apart, 'Loss of disability income' is recalculated as follows: 4,500 x 12 x 18 x 22% = 2,13,840/- Out of which, Rs.1,66,320/- was granted by the Tribunal. Thus, **Rs.47,520/-** more is granted under the head 'loss of disability income'. 14. The Tribunal granted Rs.25,000/- under the head 'pain and sufferings'. Having considered the multiple injuries and fractures and the treatment thereof for a long period, I am inclined to grant **Rs.15,000/-** more under the ## **M.A.C.A No.2160 of 2013** **==> picture [7 x 9] intentionally omitted <==** head 'pain and sufferings'. It is relevant to note that no amount is granted by the Tribunal under the head 'loss of enjoyment and amenities of life' though the appellant sustained very serious injuries as extracted above. Therefore, I am inclined to grant **Rs.35,000/-** under the head 'loss of enjoyment and amenities of life' also. 15. In the result, this appeal is allowed. It is held that the appellant is entitled to get Rs.5,87,640/- as compensation out of which Rs.4,66,120/- was granted by the Tribunal and the balance amount of **Rs.1,21,520/-** (Rupees One Lakh Twenty One Thousand Five Hundred and Twenty Only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the 3[rd] respondent, Insurance Company from the date of petition till the date of deposit or realisation. ## **M.A.C.A No.2160 of 2013** **==> picture [7 x 9] intentionally omitted <==** The Insurance Company is directed to deposit the amount in the name of the appellant within two months from today. On deposit, the appellant is entitled to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww