KUNCHI POCKER v. M.ABDUL KHAYYUM and M.MOHAMMED SO.ISMAYIL MUZHUVANKOTTIL HOUSE and THE NEW INDIA ASSURANCE CO. LTD.

MACA NO. 855 OF 2011 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 10[TH] DAY OF DECEMBER 2021 / 19TH AGRAHAYANA, 1943 MACA NO. 855 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 341/2006 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL TIRUR** ## **APPELLANT/S:** KUNCHI POCKER, AGED 46 YEARS S/O.SAINUDHEEN, EZHUTHACHANTHODI HOUSE,, IRUMBILYAM AMSOM DESOM, VATTAPARAMBA,, TIRUR TALUK. BY ADV SRI.N.K.KARNIS ## **RESPONDENT/S:** 1 M.ABDUL KHAYYUM, S/O. HUSSAIN, MELETHIL HOUSE, KAIPPURAM,P.O., PATTAMBI,, PALAKKAD (DRIVER)679308 2 M.MOHAMMED SO.ISMAYIL MUZHUVANKOTTIL HOUSE, VYLATHOOR, THIRUVEGAPPURA P.O.,, PALAKKAD (OWNER).679304 3 THE NEW INDIA ASSURANCE CO.LTD. BRANCH OFFICE, PERINCHERRY BUILDING, ROUND NORTH, THRISSUR (INSURER).680001 BY ADVS. P.N.ANOOP A.C.DEVY P.S.NANDANAN SANTHOSH PETER (MAMALAYIL) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 855 OF 2011 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.341/2006 on the file of the Motor Accidents Claims Tribunal, Tirur. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 04.11.2005. It was his case that, on the above said date, while he was riding a motor cycle bearing registration No.KL-11E5136, from Vattaparamb to Valiyakunnu, a car bearing registration No.KL-9K-9427 (car), driven by the 1[st] respondent in a rash and negligent manner, hit the motor cycle of the appellant. The appellant and the pillion rider sustained serious injuries. The appellant suffered a compound fracture of the right tibia and a head injury. The appellant was treated as an inpatient at the Al- Shifa Hospital Private Ltd., Perinthalmanna from the date of accident till 22.11.2005. He underwent a surgery and is permanently disabled. The car was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The MACA NO. 855 OF 2011 3 appellant was a coolie and was earning a monthly income of Rs.6,000/-. The appellant claimed a total compensation of Rs.4,00,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 4. The 3[rd] respondent had filed a written statement admitting that the car had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the appellant. The 3[rd] respondent also disputed the age, income and occupation of the appellant, and contended that the compensation claimed was excessive. The 3[rd] respondent then filed an additional written statement contending that the appellant did not have any permanent disability and that the 1[st] respondent did not hold a valid driving license. Hence, the 3[rd] respondent prayed for exoneration of its liability. 5. The appellant examined himself and two witness as PWs 1 and 2 and Exts.A1 to A11 were marked in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and MACA NO. 855 OF 2011 **==> picture [7 x 9] intentionally omitted <==** materials on record, allowed the claim petition in part, by permitting the appellant to realise from the 3[rd] respondent an amount of Rs.1,43,960/- with interest @ 9% from the date of petition till realisation and cost of Rs.2,000/-. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard Sri. Lathessh Sebastian, the learned counsel appearing for the appellant/petitioner and Sri. A.C.Baby, the learned counsel appearing for the 3[rd] respondent/insurer. 9. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and Liability** 10. Ext.A7 charge sheet filed by the Valancheri Police in Crime No.284/2005 substantiates that the accident occurred due to the negligence of the 1[st] respondent. Admittedly, the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the car. The respondents have not let in any evidence to the contrary to discredit Ext.A7 charge sheet. The 3[rd] respondent has also not proved that the 2[nd] respondent has MACA NO. 855 OF 2011 5 violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 2[nd] respondent arising out of the accident. ## **Income** 11. The appellant had claimed that he was a coolie worker, earning a monthly income of Rs.6,000/-. The appellant produced Ext.A1 salary certificate to prove that he was a masseur with an Ayurvedic Research Centre, during the period from 1995 to 2005, and he was paid a daily wage of Rs.250/-. The Tribunal for the reason that Ext.A1 was not proved through its author, fixed the notional monthly income of the appellant at Rs.3,000/-. 12. On a perusal of Ext.A1, it is seen that the appellant had worked for the period from 1995 to 2005. The certificate was issued on 18.02.2008. The author of the certificate has stated that the appellant did not work with them for the last two years prior to the issuance of the certificate for the reason that the appellant had met with a road traffic accident. Indisputably, the appellant had not examined the author of Ext.A1 or produced the materials to corroborate that he was a MACA NO. 855 OF 2011 6 permanent employee with the above said Ayurvedic Research Centre. In such circumstances, I am not inclined to accept the income certified in Ext.A2. 13. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd.** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 14. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2005, I fix the notional monthly income of the appellant at Rs.5,000/- per month. ## **Disability** 15. The appellant had produced Ext.A13 treatment cum disability certificate issued by the consultant Orthopedic Surgeon of the Al-Shifa Hospial, Perinthalmanna, where he was treated as an inpatient for a period of 19 days. The Doctor has certified that the appellant has a restriction of his knee to 90 degrees. It is also stated that his permanent physical impairment is 10%. MACA NO. 855 OF 2011 7 16. The Tribunal, for the reason that the appellant had not examined the Doctor who issued Ext.A13 disability certificate, scaled down his disability to 7%. 17. In **Raj Kumar vs. Ajay Kumar** [2011 (1) KLT 620], the Honourable Supreme Court has categorically held that in the case of an injury, if the Tribunal is not satisfied with the disability certificate produced before it, it is the bounden duty of the Tribunal to refer the injured/claimant to a duly constituted Medical Board. Similarly, it is observed that what needs to be looked into a claim for compensation for injuries, is the functional disability of the injured/claimant. 18. In the instant case, the Tribunal though marked Ext.A13 in evidence, without any demur or protest from the respondents, has scaled down the percentage of disability to 7%, which is erroneous and wrong. If the Tribunal was not satisfied, the Tribunal ought to have referred the appellant to a duly constituted Medical Board. In not doing the same, the Tribunal ought to have accepted the assessment made in Ext.A13 certificate. 19. On a consideration of Ext.A13 and taking note of the MACA NO. 855 OF 2011 8 fact that the appellant was a coolie worker by profession and he has permanent impairment to his knee, I fix his functional disability at 10%. ## **Multiplier** 20. The appellant was aged 45 years at the time of the accident. Following the principles in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802], the relevant multiplier to be adopted is “14”. ## **Loss due to disability** 21. Taking into account the above mentioned factors, namely, the monthly income of the appellant at Rs.5,000/-, his functional disability at 10% and the Multiplier at '14', I award the appellant an amount of Rs.84,000/- towards 'loss due to disability' instead of Rs.32,760/- awarded by the Tribunal. ## **Loss of earnings** 22. The Tribunal has found that the appellant was indisposed for a period of one year due to the injury sustained to him in the accident. I confirm the said finding. However, in view of the refixation of the notional monthly income of the appellant at Rs.5,000/-, I award him an amount of Rs.60,000/- MACA NO. 855 OF 2011 9 towards 'loss of earnings' instead of Rs.36,000/- awarded by the Tribunal. ## **Bystander expenses** 23. The appellant was treated as an inpatient for a period of 19 days as evident from Ext.A9 discharge summary. The Tribunal has awarded only an amount of Rs.2,850/- towards bystander expenses which is on a lower side. On a consideration of the fact that the appellant was treated as an inpatient for a period of 19 days in the year 2005, I award him an amount of Rs.250/- per day for 19 days, which works out to Rs.4,750/-. ## **Loss of amenities** 24. As the appellant was treated as an inpatient for a period of 19 days, that he had suffered a functional disability of 10% and that he was indisposed for a period of one year, I award him an amount of Rs.10,000/- towards 'loss of amenities'. 25. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 26. On an overall re-appreciation of the pleadings and MACA NO. 855 OF 2011 10 materials on record and the law referred to in the afore-cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. **==> picture [448 x 483] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>No. awarded by awarded by<br>the Tribunal this Court<br>(in Rs.) (in Rs.)<br>1. Transportation expenses 3,640 3,640<br> 2. Extra nourishment 500 500<br>3. Damage to clothing 250 250<br>4. Bystander expenses 2,850 4,750<br>5. Medical expenses 55,956 55,956<br>6. Loss of earnings 36,000 60,000<br>7. Pain and suffering 12,000 12,000<br>8. Loss of amenities 0 10,000<br>9. Loss due to disability 32,760 84,000<br>Total 1,43,956 2,31,096<br>**----- End of picture text -----**<br> In the result, the appeal is allowed in part by enhancing MACA NO. 855 OF 2011 **==> picture [13 x 9] intentionally omitted <==** the compensation by a further amount of Rs.87,140/- with interest @ 7.5% per annum from the date of petition till the date of realisation, after deducting interest for a period of 450 days i.e. the period of delay in filing the appeal and as ordered by this Court on 21.10.2021 in C.M.Appln. No.2/2011 and a cost of Rs.10,000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. **==> picture [29 x 13] intentionally omitted <==** **C.S.DIAS, JUDGE** rkc