Jalal v. The New India Assurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 20TH DAY OF JUNE 2018 / 30TH JYAISHTA, 1940** **AGAINST THE AWARD DATED 27.08.2008 IN OPMV 2506/2004 of M.A.C.T.,KOZHIKODE** **APPELLANT/PETITIONER:------------------------** **JALAL, S/O. HAMZAKOYA, AGED 34 YEARS, KOOTTAYINTE PURAKKAL HOUSE, P.O.PARAPPANANGADI, MALAPPURAM.** **BY ADV.SMT.K.V.RESHMI** **RESPONDENT/2ND RESPONDENT:-** **---------------------------** **THE NEW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE, SILVER PLAZA BUILDING, I.G.ROAD, KOZHIKODE-673 001, REPRESENTED BY ITS MANAGER.** **R1 BY ADV. SRI.P.MURALEEDHARAN BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = = M.A.C.A. No.1217 of 2015(B)** **- - - - - - - - - - - - - - - - - - - - - -** _Dated this the 20[th] day of June, 2018_ ## **J U D G M E N T** The appellant is the petitioner in O.P.(MV) No.2506 of 2004 of the Motor Accidents Claims Tribunal _(hereinafter referred to as 'the Tribunal')_ , Kozhikode. The aforesaid Original Petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries suffered by him in a road traffic accident. According to him, on 08.09.2004 at about 3.30 pm, while he was travelling in a motorcycle as a pillion rider, the offending lorry driven by the 1[st] respondent came in a rash and negligent manner and hit against the motorcycle, as a result of which he fell down and sustained injuries. The accident has occurred due to the rash and negligent driving of the offending lorry by the 1[st] respondent. He **M.A.C.A. No.1217 of 2015(B)** ## **-: 2 :-** claimed `6,00,000/- as compensation. According to him, the 1[st] respondent is the owner-cum-driver. Driver of the offending lorry is liable to pay compensation to him and the 2[nd] respondent Insurance Company is liable to indemnify the 1[st] respondent. 2. The 2[nd] respondent Insurance Company opposed the said application, disputing the quantum of compensation claimed under various heads of claim and the cause of accident; but admitted the coverage of the insurance policy. 3. After considering the evidence on record, the Tribunal passed the impugned award granting `3,50,800/- with 7% interest as compensation for the injuries suffered by him. The inadequacy and correctness of the quantum of compensation determined under various heads of claim are challenged in this appeal. ## **M.A.C.A. No.1217 of 2015(B)** ## **-: 3 :-** 4. Heard the learned counsel for the appellant and the learned counsel for the 2[nd] respondent Insurance Company. 5. It is contended by the learned counsel for the appellant that the quantum of monthly income determined by the Tribunal is very low. According to the appellant, he was a fisherman by profession at the time of accident. But, the Tribunal has taken `1,000/- only as his monthly income. 6. Per contra, the learned counsel for the Insurance Company advanced arguments, to justify the quantum of compensation determined by the Tribunal, under various heads of claim. According to him, in the absence of any evidence from the part of the petitioner to prove the exact income, the Tribunal can be justified in taking notional income only. 7. In view of the arguments at the Bar, the ## **M.A.C.A. No.1217 of 2015(B)** ## **-: 4 :-** point to be considered is, whether the Tribunal is justified in taking `1,000/- only as the monthly notional income? According to the appellant, at the time of accident, he was a fisherman and he was getting `5,000/- per month. It is true that no evidence has been adduced to prove his claim. The petitioner was not examined in evidence also. But, in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ [(2011) 13 SCC 236], the Supreme Court held that for an accident occurred in the year 2004, in the absence of any evidence to prove the exact monthly income of the claimant, `3,500/-to `4,500/- can be taken as the monthly income. In the instant case also, the accident has occurred in the year 2004 and the appellant was aged 24 years only at the time of accident. Therefore, in view of the decision, `4,500/- is taken as the ## **M.A.C.A. No.1217 of 2015(B)** ## **-: 5 :-** monthly income of the appellant. 8. The learned counsel for the Insurance Company submits that the Tribunal went wrong by taking 95% as the degree of permanent disability, when the Medical Board has reported that the appellant has 75% permanent disability only. According to the learned Standing Counsel for the Insurance Company, the degree of permanent disability has to be reduced from 95% to 75%. Though, there was no separate appeal, the respondent has right to advance arguments to sustain the award under Order XLI Rule 33 of the Code of Civil Procedure, 1908. Therefore, even in the absence of separate appeal, challenging the percentage of disability taken by the Tribunal, the aforesaid contention raised by the respondent can be taken into account in this appeal filed by the petitioner, ## **M.A.C.A. No.1217 of 2015(B)** ## **-: 6 :-** to sustain the quantum of compensation under challenge. 9. In view of the above arguments, this Court is inclined to reassess the compensation for permanent disability taking 75% as the degree of permanent disability. In the above view, the appellant is given `6,88,500/-[4,500 x 12 x 17 x 75/100] as compensation for 'permanent disability'. Thus, the additional compensation payable to the appellant under the head compensation for 'permanent disability' is `4,94,700/-[6,88,500 - 1,93,800]. 10. Though, the appellant has raised a contention that the Tribunal had erred in granting compensation for 'medical expense', on verification of the medical bills, this Court finds that the Tribunal has erred in stating that the medical bills exceed `2,00,000/-. Actually, on verification, this **-: 7 :-** ## **M.A.C.A. No.1217 of 2015(B)** Court finds that the medical bills do not exceed `2,00,000/- as observed by the Tribunal and the Tribunal is justified in granting `1,00,000/- only as compensation for medical expense. 11. The total additional compensation payable to the petitioner is `4,94,700/-. It is needless to say, the aforesaid additional compensation would carry interest as stipulated by the Tribunal. But, it is made clear that the appellant is not entitled to get interest for the period from 25.08.2008 to 30.03.2015, as per the order of this Court dated 01.06.2015 in CM. Application No.1359 of 2015. The 2[nd] respondent insurance company is directed to deposit the entire compensation with interest, within a period of three months from today and the appellant is allowed to withdraw the entire compensation with interest as stated above. The **M.A.C.A. No.1217 of 2015(B)** ## **-: 8 :-** remaining portion of the impugned award would stand undisturbed and operative. This Motor Accident Claims Appeal is allowed accordingly to the above extent. All the pending interlocutory applications will stand closed. Sd/- ## **K. HARILAL, JUDGE** DST //True copy// P.A. To Judge