Ismail v. P.K. Muhammed & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **TUESDAY, THE 5TH DAY OF NOVEMBER 2013/14TH KARTHIKA, 1935** ## **MACA.No. 3056 of 2009 ( )** **-----------------------------------AGAINST THE AWARD IN OPMV 1335/2003 of PRL. MOTOR ACCIDENTS CLAIMS TRIBUNAL KOZHIKODE .** **..........** ## **APPELLANT(S)/PETITIONER IN OP(MV)** **----------------------------------------------** **ISMAIL, S/O. SAIDALAVI, AGED 26 YEARS, SAFREENA MANZIL, ANAMAD PARAMBA KALLAI POST, KOZHIKODE.** **BY ADVS.SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN** ## **RESPONDENT(S)/RESPONDENTS IN OP(MV)** **---------------------------------------------------------------** **1. P.K. MUHAMMED, S/O. MAMMU HAJI, THANAM JEWELLERY, THAMARASSERY, KOZHIKODE.** **2. BASHEER.C.K, S/O. MUHAMMED.C.K,** - **AGED 26 YEARS, CHEMBRAKUNNUMMAL HOUSE P.O. PARAPPANPOYIL, CALICUT.** **3. THE UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, VELLIMANA BUILDINGS, THAMARASSERY KOZHIKODE.** **R3 BY ADV. SRI.N.S.MOHAMMED USMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ================== ## M.A.C.A.No. 3056 of 2009 ================== Dated this the 5[th] day of November, 2013 ## J U D G M E N T ## K.Ramakrisnan, J.: The claimant in O.P.(M.V).No.1335/2003 on the file of the Motor Accidents Claims Tribunal, Kozhikode, is the appellant herein. The appellant filed the application for compensation for injuries and consequential disability sustained by him in a motor vehicle accident caused on account of the negligent driving of the vehicle by the 2[nd] respondent, owned by the 1[st] respondent and insured with the 3[rd] respondent. After considering the evidence on record, the Tribunal found that the accident occurred due to negligent driving of both the vehicles by the appellant and the driver of the jeep and apportioned negligence between them in the ratio of 50:50 and deducted 25% from the total compensation towards contributory negligence. The Tribunal assessed the total compensation at ` 79,570/- on various heads as follows: m.a.c.a.3056/09 - : 2 :- ||Head of claim|Amount<br>awarded<br>`| |---|---|---| |1|Medical bills|5,000.00| |2|Incidental charges|3,900.00| |3|Pain and suffering|10,000.00| |4|Disability|49,920.00| |5|Dis-figuration|5,000.00| |6|Loss of income|5,000.00| |7|Transportation|750.00| ||Total|79,570.00| But awarded ` 59,678/- after deducting 25% towards contributory negligence. Dissatisfied with the finding regarding negligence and also on the question of compensation awarded, the appellant has filed this appeal before this Court to set aside the finding regarding negligence and claiming enhancement of compensation. 2. Since the liability of the insurance company is admitted and respondents 1 and 2 were ex parte in the lower court and also in spite of notice issued in the delay condonation application, they remained absent and intimation regarding appeal served on them, further notice in the appeal to them is dispensed with. 3. Heard the learned counsel for the appellant and the learned counsel for the insurance company. m.a.c.a.3056/09 - : 3 :- 4. The learned counsel for the appellant submitted that the appellant was aged only 20 years at the time of the accident and a mason by profession and getting ` 4,000/- per month at the time of the accident. But the Tribunal has arbitrarily fixed his income as ` 1,300/- per month, which is palpably low. Further, the Tribunal came to the conclusion that the accident occurred due to the negligence of both the drivers only on the ground that the appellant had not produced his driving licence and also the scene mahazar and final report. The fact that the case was registered against the 2[nd] respondent is not in dispute. So, under the circumstances, the Tribunal was not justified in apportioning the negligence between the appellant and 2[nd] respondent especially when he went to the box and gave evidence as PW1. Further, the medical board assessed his disability as 20%. But the Tribunal discarded the same and no amount was awarded under the head, loss of earning capacity. The amount awarded under the heads, loss of amenities in life and pain and suffering, are also on the lower side. No amount was awarded under the head, extra nourishment. The amount awarded under the head, disability is also on the lower side. According to him, the m.a.c.a.3056/09 - : 4 :- appellant is entitled to get the finding regarding negligence set aside and also entitled to enhancement of compensation on all heads. 5. On the other hand, the learned counsel for the insurance company submitted that in the absence of any evidence adduced on the side of the appellant, the Tribunal was perfectly justified in notionally fixing the monthly income of the appellant as ` 1,300/-. Further, the Tribunal has considered all the aspects and the total compensation awarded is just and proper. The Tribunal was also justified in apportioning the negligence between the drivers of both vehicles and no interference is called for at the hands of this Court, is the contention raised. 6. We have considered the rival contentions of both parties in detail. 7. The case of the appellant was that he was riding the motor cycle and at that time, the jeep came from the opposite direction, and hit against the motor cycle driven by him. Except producing the first information report, which is marked as Ext.A1, neither the final report nor scene mahazar prepared in m.a.c.a.3056/09 - : 5 :- respect of the accident, were produced. Except the interested testimony of PW1, no other evidence was also adduced on the side of the appellant to prove that the 2[nd] respondent alone was responsible for the accident. So, under the circumstances, the Tribunal cannot be faulted for coming to the conclusion that the accident occurred due to the negligence of both the drivers and apportioning negligence between them in the ratio of 50:50. Further, the Tribunal has only deducted 25% while considering the compensation payable towards contributory negligence and thereby leniency was shown by the Tribunal on this aspect as well. So we are not inclined to interfere with the finding of the court below on this aspect. 8. The case of the appellant was that he was 20 years old and mason by profession and getting ` 4,000/- per month at the time of the accident. Except the interested testimony of PW1, there is no other evidence adduced on this aspect. But considering the fact that the accident was during March 2003 and the appellant was aged 20 years old, skilled labour like mason, one can understand that a person like the appellant will be getting ` 2,500/- per month during that period as income. So m.a.c.a.3056/09 - : 6 :- we are re-fixing the monthly income of the appellant as ` 2,500/-. 9. The appellant sustained fracture to first and second meta tarsel of left foot cut of tendon. Considering the fact that he was treated as inpatient for 39 days and considering the nature of injuries and the period of treatment undergone, he could not have worked for at least four months. So we are awarding ` 10,000/- under the head, loss of earning, instead of ` 5,000/- awarded by the Tribunal. Though he was treated as inpatient for 39 days and attended hospital for review, the Tribunal has only awarded ` 3,900/- under the head, incidental charges, besides treatment expenses, which appears to be on the lower side. We take this amount for the amount to be awarded under the head, bystander's expenses and award ` 1,000/- under the head transport to hospital and ` 2,500/- under the head extra nourishment. Considering the period of treatment undergone by the appellant, the amount awarded under the head, pain and suffering, is also on the lower side. So we enhance the same to ` 20,000/- from ` 10,000/- awarded by the Tribunal. 10. The Tribunal has taken the entire 20% disability for the purpose of assessing compensation under the head, loss of m.a.c.a.3056/09 - : 7 :- earning capacity, by taking 16 multiplier and ` 1,300/- as his monthly income. As per the decision in **Sarla Verma v. Delhi Transport Corporation** , 2009 ACJ 1298 (SC), the proper multiplier for the age group of 20, as the appellant was at the time of the accident, is 18 and not 16 as taken by the Tribunal. If a recalculation is made by taking his monthly income as ` 2,500/-, 18 as the multiplier and 20% as occupational disability, then he will be entitled to get an amount of ` 1,08,000/- under the head, loss of earning power, instead of ` 49,920/- awarded by the Tribunal. He will be entitled to get additional amount of ` 58,080/- under that head and we award that amount under that head. 11. Considering the fact he suffered 20% disability and in the disability certificate, it was mentioned that he was suffering from post traumatic deformity to foot, which has caused disfiguration. He was aged 20 years old at the time of the accident. This may have some impact on his personal life as well. So, the amount of ` 5,000/- awarded by the Tribunal under the head, compensation for dis-figuration is on the lower side and we award a further amount of ` 15,000/- under that head and for m.a.c.a.3056/09 - : 8 :- loss of amenities in life as well. In all, the appellant is entitled to get ` 91,580/- as additional compensation. But deducting 25% for his contributory negligence, he will be entitled to only ` 68,685/as additional compensation, which the 3[rd] respondent-insurance company is liable to pay with 9% interest from the date of petition till date of payment. Two months' time is granted to the insurance company to deposit this amount as well. With the above modification of the impugned award of the Tribunal, the appeal is disposed of. Sd/- S.SIRI JAGAN, JUDGE sdk+ Sd/K.RAMAKRISHNAN, JUDGE ///True copy/// P.A. to Judge