Karim @ Abdulkarim v. Ahammad Kabeer, Nishad & The New India Assurance Company Limited

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 30[TH] DAY OF MARCH 2023 / 9TH CHAITHRA, 1945 ``` ## `MACA NO. 3718 OF 2019` ``` [AGAINST THE AWARD DATED 29.04.2019 IN OP(MV)NO.33/2016 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, TIRUR] ``` ## `APPELLANT/PETITIONER:` ``` KARIM @ ABDULKARIM, S/O. FATHIMA, AGED 41 YEARS, RESIDING AT 139 F, PALIYAHAZHATH, THEKKUM ROAD, (VIA) GANESH GIRI, P.O. SHORNUR MUNICIPALITY, SHORNUR, PALAKKAD DISTRICT-679 123. ``` ``` BY ADVS.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1AHAMMAD KABEER, S/O.ABDULLAKUTTY, RESIDING AT KOTTAMKATTIL HOUSE, OTTAPALAM, OTTAPALAM P.O, PALAKKAD-679 101. 2NISHAD, S/O ISMAYIL, RESIDING AT 10/245, VADAMKULAM HOUSE, VARODE, OTTAPALAM, PALAKKAD-679 102. 3THE NEW INDIA ASSURANCE COMPANY LIMITED, 2ND FLOOR, JRJ COMPLEX, MAIN ROAD, OTTAPALAM, PALAKKAD – 679 101. BY ADVS. ANZIL SALIM SHRI.LAL K.JOSEPH, SC, SURESH SUKUMAR(K/634/1997) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 3718 OF 2019 ``` ``` -2- ``` ## `JUDGMENT` ``` On 26.08.2015, the appellant, who was riding a motorcycle as a pillion, was hit by the offending vehicle, driven in a rash and negligent manner. He sustained grievous injuries and had to undergo treatment for a long period of time, including nine days as an inpatient. He, thereupon, filed OP(MV)No.33/2016 before the MotorAccidentsClaimsTribunal,Tirur ``` ``` (‘Tribunal’, for short), seeking compensation of an amount of Rs.4,50,000/-, limited to ``` ``` Rs.3,50,000/-; but which has been allowed by the Tribunal only to a sum of Rs.24,173/-. He thus ``` ``` assails the compensation as being inadequate. ``` ``` 2.Sri.T.C.Suresh Menon – learned counsel ``` ``` for the appellant, argued that the primary reason why the compensation has been fixed low in favour of his client is because the learned Tribunal has adopted his notional income to be ``` ``` MACA NO. 3718 OF 2019 ``` ``` -3- ``` ``` Rs.5,000/-, even thogh he claimed Rs.10,000/-, being a businessman. He argued that this figure ought to have been taken; and that, in any event, inRamachandrappa v. Manager, Royal ``` ``` Sundaram Alliance Insurance Company Ltd. [(2011) ``` ``` 13 SCC 236], the Hon’ble Supreme Court has mandated that, even in the case of a ‘Coolie’, ``` ``` or a person with an unascertainable income in the year 2015 – when the accident occurred – the minimum figure to be reckoned for such purpose is Rs.10,000/-. ``` ``` 3.Sri.T.C.Suresh Menon then added that, ``` ``` though the learned Tribunal has adopted the ``` ``` percentile of disability of his client to be ‘1’, the Medical Certificate, now produced ``` ``` before this Court issued by a Medical Board attached to the Medical College Hospital, Thrissur, shows it to be 8%. He prayed that, therefore, said percentile be adopted; further ``` ``` MACA NO. 3718 OF 2019 ``` ``` -4- ``` ``` adding that the compensation under the heads “Extra Nourishment”, “Bystander Expenses”, “Pain and Suffering” and “Loss of Amenities” be enhanced, taking note of the very serious injuries suffered by his client. He thus prayed that this Appeal be allowed. ``` ``` 4.Sri.Lal K.Joseph – learned Standing ``` ``` Counsel for the Insurance Company, on the other hand, argued that the computations adopted by the learned Tribunal in arriving at the ``` ``` compensation, are without error, particularly because, either the avocation or the income as stated by the appellant has not been proved by him in evidence. He thus prayed that this Appeal be dismissed. ``` ``` 5.I have considered the afore rival ``` ``` submissions, on the touchstone of the evidence on record, which I have analyzed very carefully. ``` ``` 6.I must say upfront that adoption of ``` ``` MACA NO. 3718 OF 2019 ``` ``` -5- ``` ``` Rs.5,000/- as the notional income of the ``` ``` appellant cannot appeal to me at all, because he claimed Rs.10,000/- as the income, stating that he is a businessman. Even assuming that he is not so, or that his income has not been properly proved, the fact remains, as rightly argued by Sri.T.C.Suresh Menon, that the Hon’ble Supreme Court has stipulated inRamachandrappa (supra) that said figure ought to be reckoned even in the case of a ‘Coolie’. I fail to understand why the Tribunal has reduced it and then fixed a ``` ``` notional income. ``` ``` 7.Coming to the percentile of disability, it is without doubt that Ext.A1 – Disability ``` ``` Certificate issued by a doctor attached to the Medical College Hospital, Thrissur, fixed his disability as being 11%; while another certificate issued by the Medical Board attached to the Tirur Hospital found it to be only 1%. ``` ``` MACA NO. 3718 OF 2019 ``` ``` -6- ``` ``` This Court, therefore, issued an order dated 26.10.2022, on an application filed by the appellant to refer him to the Medical Board attached to the Thrissur Medical College; and they have now furnished their report certifying his disability to be 8%. I see no reason to deny ``` ``` compensation based on this to the appellant. ``` ``` 8.That said, the medical evidence on ``` ``` record, particularly Ext.A5 – Wound Certificate establishes that the appellant had suffered “abrasions over right knee and closed communited fracture right patella.” (sic) He was ``` ``` hospitalized for nine days as an inpatient and thereafter,treatedthroughfollow-up procedures. The injuries sustained by the ``` ``` appellant are not extremely serious, but are not trivial either. I have no doubt, therefore, ``` ``` that the compensation for “Pain and Suffering” and “Loss of Amenities” awarded by the Tribunal ``` ## `MACA NO. 3718 OF 2019` ``` -7- ``` ``` is too low, because it has reckoned only Rs.6,000/- and Rs.3,000/- in that regard. I propose to revise them to be Rs.25,000/- and Rs.10,000/- respectively. 9.That said, when it is admitted that the appellant was hospitalized for nine days, and reckoning the fact that he had fracture on right patella, I am certain that it would have taken a minimum of two months for his full recovery. Obviously, this period will have to be reckoned for fixing the compensation under the head "Loss of Earnings". I notice that the learned Tribunal has awarded compensation under this head only for nine days, when the appellant was actually hospitalized. This is improper because, what needs to be considered is the period during which he would have been unable to earn his livelihood. 10.Finally, as regards thecompensation ``` ``` MACA NO. 3718 OF 2019 ``` ``` -8- ``` ``` awarded by the Tribunal under the heads “Extra Nourishment” and “Bystander Expenses”, it has awarded only Rs.500/- each, without reckoning ``` ``` the per diem expenses for the same. Even going ``` ``` by the fiscal standards of the year 2015 – when ``` ``` the accident occurred – I am certain that ``` ``` figures of Rs.250/- and Rs.350/- respectively ``` ``` would be the least apposite. ``` ``` In the afore circumstances, this Appeal is ``` ``` partly allowed in the following manner: ``` ``` (a)Thecompensationunder the head ``` ``` “Continuing Permanent Disability” is enhanced to ``` ``` Rs.1,44,000/- (Rupees one lakh forty four ``` ``` thousand only), from Rs.9,000/- awarded by the Tribunal, reckoning the notional income of the appellant to be Rs.10,000/- per month and his percentile of disability to be ‘8’, as certified in the Certificate dated 16.11.2022, produced before this Court by the Medical Board, attached ``` ``` MACA NO. 3718 OF 2019 ``` ``` -9- ``` ``` to the Medical College Hospital, Thrissur. ``` - `(b) Axiomatically, an amount of Rs.20,000/-` ``` (Rupees twenty thousand only) is awarded under the head“Loss of Earnings”, instead of Rs.2,000/- awarded by the Tribunal, reckoning ``` ``` the notional income of the appellant to be Rs.10,000/- and a period of two months taken for such purpose. ``` ``` (c)Thecompensation under the head “Pain ``` ``` and Suffering” is enhanced to Rs.25,000/- (Rupeestwenty five thousand only) from ``` ``` Rs.6,000/- awarded by the Tribunal. ``` ``` (d)The compensation under the head “Loss of Amenities” is enhanced to Rs.10,000/-(Rupees ``` ``` ten thousand only) from Rs.3,000/- now awarded by the Tribunal. ``` ``` (e)The compensation under the head “Extra ``` ``` Nourishment” is enhanced to Rs.2,250/-(Rupees ``` ``` two thousand two hundred and fifty only), from ``` ``` MACA NO. 3718 OF 2019 ``` **==> picture [30 x 9] intentionally omitted <==** ``` Rs.500/- now awarded by the Tribunal, reckoning Rs.250/- as his per day expenses, for nine days of hospitalization. ``` ``` (f)Thecompensationunder the head ``` ``` “Bystander Expenses” is enhanced to Rs.3,150/- (Rupees three thousand one hundred and fifty only) from Rs.500/- awarded by the Tribunal, reckoning Rs.350/- as the per diem expenses, ``` ``` for 9 days of hospitalization. ``` ``` (g)In all other heads, the compensation ``` ``` granted by the Tribunal will remain intact. ``` ``` Consequently, the appellant will be at full ``` ``` liberty to recover the compensation, as enhanced ``` ``` by this Court, from the Insurance Company, along ``` ``` with interest at the rate of 7%, as awarded by ``` ``` the Tribunal, from the date of claim until it is recovered.He will also be entitled to ``` ``` proportionate costs on the enhanced amount as ordered by the Tribunal. ``` ``` MACA NO. 3718 OF 2019 ``` **==> picture [30 x 8] intentionally omitted <==** ``` In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the Tribunal, within a period of two months from the date of receipt of a copy this judgment. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN JUDGE ``` ``` akv ```