Karim Kodumayil S/O Moideen v. E. Salim, Siraj and New India Assurance Company Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Narayana Pisharadi
Judgment Date: 2018-02-07
Court Decision / Holding: The appeal is allowed in part. The appellant is entitled to an additional amount of Rs. 59,080/- as compensation. The insurer shall deposit this amount in the Tribunal with interest at 7% per annum from the date of the claim petition till the date of deposit within three months from receipt of a copy of this judgment. No costs in the appeal.
Final Disposition: Appeal partly allowed; enhanced compensation awarded with deposit requirement under specified terms.

Parties to the Case

Appellants / Petitioners

Karim Kodumayil S/O Moideen

Respondents

E. Salim
Siraj
New India Assurance Company Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri A.V.M. Salahudeen
• Smt. Emil Stanley

Counsels for Respondents

• Sri A.A. Ziyad Rahman
• Sri Lal K. Joseph

Case Synopsis & Summary

This is a Motor Accident Claims Appeal (MACA No. 2180 of 2013) filed by Karim Kodumayil challenging the award in O.P.(MV) No.753 of 2009 of the MACT, Vatakara. The accident occurred on 26 January 2009 when the appellant, travelling in an autorickshaw, was struck by a bus. The Tribunal held the bus driver negligent and awarded Rs. 1,66,506 as compensation, with liability on the insurer. The appellant sought enhancement, arguing that the Tribunal erred in fixing his monthly income at Rs. 4,000 and in assessing disability as only 13% of the whole body though Medical Board certified 39.24% disability (for one limb). He claimed he would have earned Rs. 4,500 per month and relied on Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. to support higher notional income. The insurer did not dispute liability. The High Court, after reviewing the evidence, followed the Supreme Court’s approach in Ramachandrappa to determine a higher monthly income (Rs. 4,500) for a 35-year-old coolie/foreman, and held that loss of earning capacity could be enhanced; it computed additional compensation across heads such as loss of earnings, loss of amenities, and other heads. The result: the appeal was partly allowed, granting an additional Rs. 59,080, to be deposited with interest within three months, with no costs.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant’s counsel submitted that the Tribunal erred in fixing the monthly income at Rs. 4,000 instead of Rs. 4,500, arguing that the appellant’s job as a foreman in a Gulf country and his age (35) warrant a higher notional income. They relied on Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd (AIR 2011 SC 2951) to justify adopting Rs. 4,500 per month for computation. The disability certified by the Medical Board was 39.24% for one limb; the Tribunal’s determination of 13% whole-body disability was challenged, contending that the whole body disability should reflect the Board’s certification where loss of earning capacity is concerned. They also contended that the award for loss of amenities and other heads was too low and requested enhancement based on medical evidence and losses sustained.

Contentions of Respondents

The insurer contended that the compensation awarded by the Tribunal was just and reasonable and that no enhancement was warranted. They did not dispute liability. The insurer’s counsel argued against re-quantification of income, disability, or other heads, maintaining that the Tribunal’s assessment was appropriate in the facts and evidence on record.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	AIR 2011 SC 2951	Positive	The High Court relied on this Supreme Court decision to fix the appellant’s monthly income at Rs. 4,500 for computation of compensation, aligning with the argument that the claimant’s age and occupation justify higher notional income.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 7TH DAY OF FEBRUARY 2018 / 18TH MAGHA, 1939** **MACA.No. 2180 of 2013** **(AGAINST THE AWARD IN OPMV 753/2009 of MACT VADAKARA, DATED 26-03-2013)** ## **APPELLANT/PETITIONER:** **KARIM KODUMAYIL S/O.MOIDEEN, RESIDING AT KODUMAYIL HOUSE, MUTHUVANNACHA P.O., KUTTIYADI VIA, KOZHIKODE.** **BY ADVS.SRI.AVM.SALAHUDDEEN SMT.EMIL STANLEY** ## **RESPONDENTS/RESPONDENTS:** **1. E.SALIM, AGE AND FATHER'S NAME NOT KNOWN, RESIDING AT EDATHIL HOUSE, FLORICAN HILL ROAD, KARAPARAMBA P.O., KOZHIKODE-673 010.** **2. SIRAJ, AGED 26 YEARS, S/O.POCKER, RESIDING AT MEETHALE KUNNATHUMMAL, NADUKKANDIYIL HOUSE, KUTTIYADI P.O., KOZHIKODE-673 012.** **3. NEW INDIA ASSURANCE COMPANY LTD., DIVISIONAL OFFICE, SILVER PLAZA BUILDING, I.G.ROAD, KOZHIKODE-673 001.** **R3 BY ADVS. SRI.A.A.ZIYAD RAHMAN SRI. LAL K.JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01.02.2018 AND THE** **COURT ON 07-02-2018 DELIVERED THE FOLLOWING:** ss ## **R.NARAYANA PISHARADI, J** **---------** ------------------------------- **M.A.C.A. No.2180 of 2013** --------------------------------------------- Dated this the 7[th] day of February, 2018 ## **JUDGMENT** This appeal is filed by the claimant in O.P.(MV)No.753 of 2009 on the file of the Motor Accidents Claims Tribunal, Vatakara claiming enhancement of compensation awarded by the Tribunal. 2. The appellant is the victim of a motor vehicle accident. On 26.01.2009, at about 08.30 hours, while the appellant was travelling in an autorickshaw, a bus which came from the opposite direction, hit on the autorickshaw. The appellant sustained serious injuries in the accident. He filed O.P.(MV)No.753 of 2009 in the Tribunal against the owner, driver and insurer of the bus claiming a total amount of Rs.3,00,000/- as compensation. The Tribunal found that **M.A.C.A. No.2180 of 2013** 2 the accident occurred solely due to the negligence of the driver of the bus and that the third respondent insurance company is liable to pay the amount of compensation to the appellant. The Tribunal awarded a total amount of Rs.1,66,506/- as compensation to the appellant. The appeal is filed seeking enhancement of compensation. 3. The amount of compensation claimed by the appellant under each head and awarded by the Tribunal can be seen from the following table contained in the judgment of the Tribunal: |**Sl.No. **|**Head of Claim**|**Amount** **claimed** **(Rs.)**|**Amount** **Awarded** **(Rs.)**|**Basis-vital details in** **a nutshell**| |---|---|---|---|---| |1|Loss of earning|15000|12000|| |2|Medical treatment and expenses|10000|19226|Bills produced as Ext.A6 series for Rs.19226/-| |3|Transport to hospital|500|1500|| |4|Bystander expenses|…..|2800|Rs.200x14 days IP treatment in MCH Kozhikode.| |5|Damage to clothing and articles|1000|500|| |6|Extra nourishment|2500|1400|| |7|Pain and suffering|15000|15000|| |8|Compensation for loss of earning power|2,85,00|1,06,080|4000x12x17x13/10| 3 ## **M.A.C.A. No.2180 of 2013** |||0||0| |---|---|---|---|---| |9|Compensation for loss of earning power|10000|…...|| |10|Loss of amenities and enjoyment in life|11000|8000|| ||Total claim limited to Rs.3,00,000/-|350000|166506|| 4. At the time of hearing, the learned counsel for the third respondent insurance company has not disputed the liability of the company to pay the amount of compensation to the appellant. 5. The learned counsel for the appellant contended that the monthly income of the appellant taken by the Tribunal as Rs.4,000/- is low and that the Tribunal should have taken the monthly income of the appellant atleast as Rs.4,500/-. The learned counsel for the appellant would also contend that the Medical Board has certified that the appellant sustained permanent disability of 39.24%, but the Tribunal has assessed the compensation taking the disability sustained by the appellant only as 13% and it is not proper. The learned counsel for the appellant would 4 ## **M.A.C.A. No.2180 of 2013** further submit that the amount awarded by the Tribunal towards loss of amenities is also very low. Per contra, the learned counsel for the third respondent insurance company has submitted that the compensation awarded by the Tribunal is just and reasonable and no enhancement can be allowed. 5. The plea of the appellant before the Tribunal was that he was working as a foreman in a gulf country and he was getting income of Rs.60,000/- per month. He did not adduce any oral or documentary evidence to prove his job or income. Therefore, the Tribunal was justified in computing the amount of compensation on the basis of notional income of the appellant. 6. The appellant was aged 35 years at the time of the accident. Learned counsel for the appellant contended that the accident occurred in the year 2009 and during that period, the appellant would have earned atleast Rs.4,500/- per month even as a coolie worker. Learned 5 ## **M.A.C.A. No.2180 of 2013** counsel relied upon the decision of the Apex Court in _Ramachandrappa v. Manager, Royal Sundaram Aliance Insurance Company Limited (AIR 2011 SC 2951)_ in support of this contention. On a perusal of this decision, it is seen that the claimant in that case was aged about 35 years and his monthly income as a coolie was taken as Rs.4,500/- per month. The accident in that case had occurred in the year 2004. Therefore, on the basis of this decision, I find that the monthly income of the appellant can be taken as Rs.4,500/- for the purpose of computation of compensation. 7. The appellant had sustained the following injuries in the accident : (1) Anterior Cruciate Ligament (ACL) with lateral meniscus tear (2) Truncation of posterior horn of the lateral meniscus with medial displacement of torn fragment (suspected of bucket handle tear) (3) Mid portion of patellar tendon bulky and hyper intense (4) Knee joint effusion. 6 ## **M.A.C.A. No.2180 of 2013** 8. After examination of the appellant, the Medical Board has certified that he has sustained permanent disability of 39.24%. The Tribunal found that the percentage of disability certified by the Medical Board is with regard to one of the limbs of the appellant and not with regard to the whole body. The Tribunal found that the whole body disability of the appellant can be taken as 13%. The Tribunal was right in holding that the percentage of disability of the appellant assessed by the Medical Board is with regard to one of the limbs and that the whole body disability has to be reduced. The extent of permanent disability of one of the lower limbs, as certified by the Medical Board, cannot be considered to be the functional disability of the whole body nor could it be assumed to result in a corresponding extent of loss of earning capacity. The appellant was aged 35 years at the time of the accident. Partial disability of one of the lower limbs would not have prevented him from carrying on his 7 ## **M.A.C.A. No.2180 of 2013** avocation as a coolie or foreman, though it might impede in his smooth functioning. Considering the age of the appellant at the time of the accident and also considering the fact that the disability of one of the lower limbs suffered by him would have affected his earning capacity as a coolie, percentage of loss of earning capacity can be taken as 17%. The learned counsel for the appellant or the third respondent insurance company has not raised any dispute with regard to adoption of 17 as the multiplier for assessment of compensation for disability. When the percentage of loss of earning capacity is taken as 17%, the amount of compensation payable under this head would come to Rs.1,56,060/- (4500x12x17x17/100). The Tribunal has already awarded an amount of Rs.1,06,080/under this head. Therefore, the claimant is entitled to get an additional amount of Rs.49,980/- under this head. 9. The Tribunal has awarded an amount of 8 ## **M.A.C.A. No.2180 of 2013** Rs.12,000/- as compensation for loss of earning for a period of three months at the rate of Rs.4,000/-. The appellant was in hospital for a period of 14 days. Considering this aspect and considering the nature of the injuries sustained by him, I find that loss of earning can be awarded for a period of four months at the rate of Rs.4,500/- per month. Therefore, the appellant is entitled to get an additional amount of Rs.6,000/- under this head. The Tribunal has awarded an amount of Rs.1,400/- towards expenses for extra nourishment. It is proper to enhance the amount to Rs.2,500/- as claimed by the appellant. Therefore, the appellant is entitled to get an additional amount of Rs.1,100/- under this head. The Tribunal has awarded an amount of Rs.8,000/- as compensation for loss of amenities against the claim of Rs.11,000/-. It is proper to award an amount of Rs.10,000/- under this head. Therefore, the appellant is entitled to get an additional amount of Rs.2,000/- under 9 ## **M.A.C.A. No.2180 of 2013** this head. 10. Thus, the appellant is entitled to get a total amount of Rs.59,080/- as additional compensation (49,980+6,000+ 1,100+2,000). 11. In the result, the appeal is allowed in part. The appellant is entitled to get an additional amount of Rs.59,080/- as compensation. The third respondent insurance company shall deposit this amount in the Tribunal with interest at the rate of 7% per annum from the date of the claim petition till the date of deposit within a period of three months from the date of receipt of a copy of this judgment. No costs in the appeal. Sd/- ## **R.NARAYANA PISHARADI, J** _//True Copy//_ _P.A. To Judge_ ss