K.C. Narayanan v. RIASASHRAFSULFIKKAR; Fizal Pareez; United India Insurance Co. Ltd. (MACA No.1717 of 2011)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ## **`WEDNESDAY, THE 7[TH] DAY OF JUNE 2023 / 17TH JYAISHTA, 1945`** ## **`MACA NO.1717 OF 2011`** ## **`AGAINST THE ORDER/JUDGMENT IN OPMV 1038/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM`** ## **`APPELLANT/PETITIONER:`** ``` K.C.NARAYANAN,S/O.CHAMY, CHERUNGATTUPURAHOUSE,,KANJICODE WEST,P.O.PALAKKAD,,PALAKKAD. ``` ``` BYADVSRI.T.C.SURESHMENON ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1RIASASHRAFSULFIKKAR, HOUSENO.XXVII/385,,MANZIL, - GANDHINAGAR,PALAKKAD678001. ``` ``` 2FIZALPAREEZ DOORNO.XI/791VASUDEVANAGAR, ROBINSONROAD,PALAKKAD DISTRICT-678001. ``` ``` 3UNITEDINDIAINSURANCECO.LTD. 178,ISTFLOOR,DR.NANJAPPAROAD,, COIMBATORE-641019. ``` ``` BYADVS. SRI.LIJU.M.P SMT.R.REMA ``` ``` THISMOTORACCIDENTSCLAIMSAPPEALHAVINGBEENFINALLY HEARDON31/05/2023,THECOURTON07.06.2023DELIVEREDTHE FOLLOWING: ``` MACA No.1717 of 2011 2 ## **SOPHY THOMAS, J.** **--------------------------------------MACA No.1717 of 2011** **---------------------------------------** Dated this the 7[th] day of June, 2023 ## **J U D G M E N T** This appeal has been preferred by the claimant in OP (MV) No.1038 of 2007, on the file of Motor Accidents Claims Tribunal, Ottappalam, against dismissal of that O.P, finding negligence on his part. 2. On 27.11.2006 at about 3.30 p.m, while the appellant was riding his motorcycle through Walayar-Palakkad public road, there occurred a clash between his motorcycle and KL 09H 7077 car driven by the 2[nd] respondent which came from opposite direction. The appellant suffered serious injuries including disability. He approached the Tribunal claiming compensation under Section 163A of the Motor Vehicles Act. 3. Respondents 1 and 2, the owner and driver of the car, contended that, the accident occurred due to the rash and negligent riding of the motorcycle by the appellant and moreover he was under the influence of alcohol. The 3[rd] respondent/ MACA No.1717 of 2011 3 Insurance Company admitted the policy. But, according to them, the driver of the car was not negligent and so, they have no liability to indemnify its owner. 4. Before the Tribunal, PW1 was examined and Exts.A1 to A9 were marked from the side of the appellant/claimant and Exts.B1 to B3 were marked from the side of the respondents. After analysing the facts and evidence, learned Tribunal found that the accident occurred due to the rash and negligent riding of the motorcycle by the appellant/claimant and so, no compensation was awarded under Section 163A of the M.V Act, and the OP was dismissed, against which he has come up with this appeal. 5. Now let us see whether any interference is warranted in the impugned award. 6. Heard learned counsel for the appellant and the learned counsel for the respondents. 7. Learned counsel for the appellant submitted that, in a claim under Section 163A of the M.V Act, the claimant shall not be required to plead or establish that the death or permanent disablement, in respect of which the claim has been made, was due MACA No.1717 of 2011 4 to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned, or of any other person as envisaged under Section 163A (2) of the M.V Act. 8. Section 163A of the M.V Act reads as follows: “163 A. **Special provisions as to payment of compensation on structured formula basis** .- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be _Explanation_ .- For the purpose of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923(8 of 1923) (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person…”. MACA No.1717 of 2011 5 9. Therefore, the requirement in a claim under Section 163A of the MV Act is that, there is death or permanent disablement due to accident arising out of the use of motor vehicle, and the claimant need not plead or establish that the death or permanent disablement was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. 10. In the case on hand, Ext.A1 FIR and Ext.A3 charge sheet clearly show that the accident occurred, when two vehicles collided with each other. The appellant was riding the motorcycle and the 2[nd] respondent was riding the car. Exts.A5 and A6, the reports of the AMVI on inspecting the vehicles involved in the accident, speak about the damages found on the vehicles, which will indicate that there occurred a head on collision between those two vehicles. Ext.A8 disability certificate is to the effect that, the appellant/claimant suffered disability of 26%. According to the appellant, he was a 44 year old coolie worker earning monthly income of Rs.3,300/-. A claim under Section 163A of M.V Act is maintainable only when the annual income of the claimant is not MACA No.1717 of 2011 6 exceeding Rs.40,000/as per the Second Schedule under Section 163A. Since the appellant/claimant was said to be earning monthly income of Rs.3,300/-, his annual income will be Rs.39,600/- which will be within the ceiling limit of the Second Schedule. So, if at all the accident occurred due to the rashness or negligence on the part of the appellant/claimant, since the accident arose out of the use of motor vehicle which was driven by the 2[nd] respondent, his claim under Section 163A is very much maintainable. So, learned Tribunal ought not have dismissed his claim petition finding that the accident occurred due to his rash and negligent riding of the motorcycle. 11. Now coming to the compensation claimed, the appellant/claimant sustained fracture of left femur, fracture of left tibia as well as head injury and he was hospitalised for about 51 days. He claimed compensation of Rs.3,11,600/-. 12. Going by the Second Schedule under Section 163A, the compensation amount is categorised under general damages in case of death, general damages in case of disabilities and injuries, disability in non fatal accidents etc. Ext.A9 series medical bills are MACA No.1717 of 2011 7 to the effect that the appellant expended Rs.10,326/- towards treatment expenses. Under general damages, in case of injuries and disabilities, the medical expenses eligible is the actual expenses incurred supported by bills/vouchers but not exceeding Rs.15,000/-. Here, as the actual medical bills is for Rs.10,326/-, the appellant is entitled to get that amount towards medical expenses. 13. As per the Second Schedule, the maximum amount that can be awarded towards pain and suffering for grievous injuries is Rs.5,000/-. Since the appellant suffered grievous injuries, he is eligible to get Rs.5,000/- under the head ‘pain and suffering’. 14. Towards loss of income, the compensation eligible under the Second Schedule is for the actual period of disablement not exceeding 52 weeks. According to the appellant, he was earning monthly income of Rs.3,300/- per month as a coolie worker. Even going by the decision **Ramchandrappa** vs. **Manager, Royal Sundaram Alliance Insurance Company Limited** (AIR 2011 SC 2951), he was eligible to get his notional income fixed at Rs.5,500/- in the year 2006. So, this Court finds no reason to MACA No.1717 of 2011 8 disbelieve his case that, he was earning monthly income of Rs.3,300/-. He was hospitalised for 51 days and he had suffered disability also due to the injuries suffered. So, this Court is inclined to award compensation for loss of income for a period of 52 weeks i.e. 13 months. @ Rs.3,300/- per month, he is eligible to get Rs.42,900/- under the head ‘loss of earning’. 15. Under the head ‘disability’, the appellant would say that, he suffered 24% disability relying on Ext.A8 disability certificate issued by PW1 Dr.Jacob P J, an Orthopaedic Surgeon working in Medical College Hospital, Thrissur. That certificate shows that, the appellant had 8 cm shortening of left leg and malunited supracondylar fracture of left femur with valgus. Further, he had malunited fracture of both bones of left leg and stiffness of left knee and left ankle. The doctor assessed 24% permanent disability for the whole body, as per MC Bride scale. That certificate was not issued by any Medical Board. PW1 doctor deposed that, he never treated the injured and he had issued the certificate on 11.01.2011 whereas the accident was on 27.11.2006. After five years of the accident, the Doctor issued the certificate, and he admitted that, MACA No.1717 of 2011 9 the injuries were on the left leg only. Though the difficulties noted were only on the left leg, the Doctor assessed 24% disability with respect to the whole body. Apparently, the disability assessed by the Doctor is on the higher side. So, this Court is inclined to accept the disability to the extent of 15%. We have accepted his monthly income @ Rs.3,300/- per month and that is not challenged by the respondents. The multiplier applicable is 14, as he was aged only 44. So, for 15% disability, the compensation can be assessed as Rs.83,160/- (3300x12x14x15/100). 16. The appellant is not entitled for compensation under any other count going by the Second Schedule under Section 163A of the MV Act. |ct.|| |---|---| |**Head of claim**<br>**(1)**|**Amount awarded in**<br>**appeal**<br>**(2)**| |Medical expenses|Rs.10,326/-| |Pain and suffering|Rs.5,000/-| |Loss of earning|Rs.42,900/-| |Compensation for disability|Rs.83,160/-| |**Total**|**Rs.1,41,386/-**| 17. Hence the appellant is entitled to get compensation of MACA No.1717 of 2011 10 Rs.1,41,386/- under Section 163A of the MV Act. 18. The 3[rd] respondent/insurer admitted that, the car involved in the accident was validly insured with them as on the date of accident. Since the accident arose out of the use of the car, the Insurance Company is liable to indemnify the owner, if at all there was no negligence from the part of the driver of the car. The 3[rd] respondent/insurer is directed to deposit the compensation amount of Rs.1,41,386/- in the Bank Account of the appellant with interest @ 9% per annum from the date of petition till the date of deposit, within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund. In the result, the appeal is allowed and the impugned award is set aside. Sd/- ## **SOPHY THOMAS JUDGE** smp