Kunhipathu v. Fathahali Ghalib & Ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M. MONDAY, THE 15[TH] DAY OF JULY 2024 / 24TH ASHADHA, 1946 MACA NO. 236 OF 2018** **AGAINST THE ORDER/JUDGMENT DATED 18.01.2017 IN OPMV NO.70 OF 2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANT/PETITIONER** ## **KUNHIPATHU** **AGED 59 YEARS,D/O.CHEKKU,NEDUNGATT HOUSE,P.O.MELMURI,MACHINGAL, MALAPPURAM DISTRICT-676 517.** **BY ADVS. SRI.P.SAMSUDIN SRI.JITHIN LUKOSE** ## **RESPONDENTS/RESPONDENTS** |**1**|**FATHAHALI GHALIB**| |---|---| ||**S/O.ASSAINAR,KAMBALAKATH HOUSE,OLAKKARA P.O.,OLAKKARA**| ||**AMSOM,KOOMANNA DESOM,MALAPPURAM DISTRICT,676 306.**| ||**(DRIVER).**| |**2**|**ABDUL ALI K.**| ||**SUPER AGENCIES,DOWN HILL,MALAPPURAM DISTRICT. 676 505.**| ||**(OWNER).**| |**3**|**UNITED INDIA INSURANCE CORPORATION LIMITED**| ||**KILYAMANNIL PLAZA,2ND FLOOR,MANJERI ROAD,MALAPPURAM**| ||**P.O., 676 505. (INSURER).**| ||**BY ADVS.**| ||**SMT.K.C.BEENA**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.236/2018 2 ## JUDGMENT Dated this the 15[th] day of July, 2024 This appeal is filed by the petitioner in O.P.(M.V.)No.70 of 2013 on the files of the Motor Accidents Claims Tribunal, Manjeri seeking enhancement of the compensation granted to her by the Tribunal vide its award dated 18.01.2017. ## **Facts in Brief:** 2. Appellant met with an accident on 28.07.2012, at about 8.30 a.m., while waiting for a bus on the side of a road at Varangode. A car bearing No. KL -10/S-9300 driven by the 1st respondent had hit the appellant and she sustained injuries in the accident. She was treated as an inpatient in the hospital for 7 days. The 2nd respondent is the owner and the 3rd respondent is the insurer of the offending vehicle. Appellant alleged that the accident happened due to the rash and negligent driving of the car by the 1st respondent. Appellant was aged 55 years at the time of the accident and was working as a coolie purportedly earning a monthly income of Rs.6,000/-. She filed the OP (MV) before the Tribunal claiming that the respondents are jointly and severally liable to pay her a compensation of Rs.3,00,000/-. MACA No.236/2018 3 ## **Proceedings before the Tribunal:** 3. Respondents 1 and 2 were set exparte by the Tribunal. The 3rd respondent Insurance Company filed a written statement admitting the policy. Tribunal framed three issues and the parties went to trial. Neither side examined any witnesses. Appellant produced and marked Exts. A1 to A10. Disability certificate was marked as Ext.X1. No documents were produced by the respondents. ## **Award of the Tribunal:** 4. The Tribunal vide award dated.18.01.2017 found that the appellant is entitled to a total compensation of Rs.2,37,200/- with interest @ 9% from the date of the petition with proportionate cost. The said Award is challenged by the appellant in the above MACA. 5. Heard Sri.P.Samsudin, the learned counsel appearing on behalf of the appellant and Sri.John Joseph Vettikkad, the learned Standing Counsel appearing on behalf of the 3rd respondent – Insurance Company. ## **Appellant's contentions in brief:** ● Tribunal ought to have appreciated that appellant was earning an amount of Rs.5,000/- per month as a coolie and that during the time of the accident, she was working at a construction site. MACA No.236/2018 4 - Tribunal erred in not holding that there is no evidence to prove the employment and income of the appellant after failing to admit the documents produced by the appellant to prove her employment terming the same as unauthenticated copies. - The notional income calculated by the Tribunal is erroneous. The appellant is entitled to a notional income calculated as per the dictum in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236] - Though the medical board had found a permanent partial disability of 25%, the appellant is totally disabled and the Tribunal failed to consider the same and compensate her adequately. - Appellant was unable to attend work for around an year as she was advised to keep her limb elevated and to refrain from bearing weights. Hence the Tribunal ought to have computed the loss of earnings of the appellant accordingly. - Tribunal had erred in rejecting the major part of the documents produced by the appellant to prove transportation charges which she had to incur for availing treatment and for periodical medical reviews. MACA No.236/2018 5 - Amount of Rs. 1,750/- allowed under the head 'extra nourishment' is too meagre. - The amount of Rs.20,000/- awarded towards pain and suffering is inadequate, taking note of 7 days hospitalisation endured by the appellant. - Due to fracture injuries, the quality of life of the appellant has been detrimentally affected and she suffered loss of amenities and enjoyment in life. The Tribunal did not allow any compensation towards loss of amenities. - The appellant had suffered disfigurement of face due to the injuries. However, the Tribunal did not grant any amount under the head of disfigurement. - Appellant's claim for future expenses was erroneously denied by the Tribunal. ## **Respondent’s contentions in brief:** - No legally reliable document was produced by the appellant to prove her income or salary. Her contention that she was a coolie and was earning Rs.6,000/- per month was not substantiated in any manner known to law. - ●The notional income of Rs.5,000/- arrived at by the Tribunal is valid and proper and does not merit any interference. MACA No.236/2018 6 - ●The Tribunal had not discarded the medical bills as alleged by the appellant. The Ambulance/ Taxi car bills were duly considered terming them to have been corresponding with the date of discharge from Moulana Hospital and IORAA Hospital, Kozhikode. The Tribunal has thus been fair and reasonable in awarding compensation. - ●Appellant had been admitted in hospital only for 7 days. She had claimed a compensation of Rs.3,00,000/- and the Tribunal had awarded an amount of Rs.2,37,200/- - ●The Tribunal had been generous in granting compensation to the appellant notwithstanding the fact that no legally tenable evidence had been put forth by the appellant to substantiate her claim. Hence the award of the Tribunal does not merit any interference. - ●Allegation that medical bills were not duly taken note of for fixing compensation is false since the Tribunal had taken note of Ext. A5 and A6 series of medical bills of which A6 bills were obtained for ayurvedic treatment and ought not to have been covered as part of medical expenses due to lack of authentication. MACA No.236/2018 7 - ●Tribunal had accepted the findings of the Medical Board as per - Ext X1 disability certificate which assessed permanent partial disability at 25% and found that the appellant is entitled to get compensation for the loss of earning due to the permanent partial disability suffered by her at the rate of 25%. ●Finding of the Tribunal that the appellant had passed the year of 60 and there is no scope for any addition for future prospects of income is valid. and tenable. ## **Discussion and findings:** 6. The principal contention put forth by the learned counsel for the appellant is regarding inadequacy of the monthly income of the appellant as arrived at by the Tribunal. The Tribunal had concluded that since there is no reliable evidence to prove the employment of the appellant, her income has to be fixed notionally for the purpose of calculating compensation. The Tribunal then proceeded to calculate the income basing on the assumption that the wages of a woman engaged in casual labour in the year 2012 could be around Rs. 250/- per day and accordingly concluded that appellant’s income can be reckoned as Rs.5,000/- per month. Thus an amount of Rs.45,000/- was arrived at for the period of 9 months, which was the period that the Tribunal presumed the appellant to be away from MACA No.236/2018 8 work for recuperation. In the light of the facts and circumstances of the case, guided by the principles laid down by the Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd** . (supra), I deem it fair and reasonable to recompute and fix the monthly income of the appellant at Rs. 8,500/-. Appellant is thus entitled to loss of earnings for 9 months computed on the said monthly income of Rs.8,500/-. The loss of earnings would be thus recalculated and refixed at Rs.76,500/(8,500x9=76,500/-) 7. As regards compensation towards permanent disability, the same is recalculated taking the monthly income of the appellant as Rs.8,500/-. Compensation towards permanent disability is thus arrived at Rs.1,78,500/-. (8,500 x 12x 7x25%= 1,78,500/-) 8. Appellant was treated in the hospital for 7 days. The discharge card ( Ext. A3 (b)] states that the appellant was treated for comminuted bicondylar fracture tibia, fracture neck of fibula and common peroneal nerve injury at the hospital. She suffered brain edema and injuries like lacerations and abrasions as revealed form Ext. A2 wound certificate and Ext.A3 discharge summary. Hence the finding of the Tribunal that the nature of the injury suggests that she had suffered a lot of pain is valid. It is trite and settled law, as laid MACA No.236/2018 9 down by the Hon'ble Supreme Court in **Benson George v. Reliance General Insurance Co. Ltd. & Anr.** [2022 KHC 6232] that there cannot be a straight jacket formula regarding compensation to be awarded under the heads of pain and suffering and loss of amenities. I note that an amount of Rs.20,000/- has been awarded by the Tribunal under the head pain and suffering. Against a claim of Rs.3,000/- towards transport to hospital, an amount of Rs. 4,150/has been awarded by the Tribunal. Towards extra nourishment against a claim for Rs.2,000/-, the Tribunal has awarded an amount of Rs.1,750/-. The Tribunal had declined the claim of the appellant under the heads compensation for loss of amenities and disfigurement and for future expenses. In the facts and circumstances of the case, the reasoning given by the Tribunal for declining compensation under the said heads cannot be termed as erroneous. 9. Accordingly, except for the heads loss of earnings and compensation towards permanent disability, compensation granted by the Tribunal under all other heads are retained. Loss of earnings is recalculated and refixed at Rs.76,500/- (8,500x9=76,500/-) and compensation towards permanent disability is re fixed at MACA No.236/2018 10 Rs.1,78,500/- (8,500 x 12x 7x25%= 1,78,500/-). Amounts granted under other heads in the Award remain unaltered. 10. Thus after hearing both sides and on appreciation of the pleadings, materials on record and the settled law as per the precedents cited above, I conclude that the appellant is entitled for enhancement of compensation as modified and re-calculated above. 11. The Award of the Tribunal is modified to the above extent entitling the appellant to a total amount to Rs.3,42,191.54/- under the respective heads enhancing the compensation only by a further amount of Rs.1,05,000/-. Appellant will be entitled to interest @ 7% per annum on the enhanced amount. Additional court fee, if any, payable shall be met by the appellant. The respondent Insurance Company shall deposit before the Tribunal amounts payable as per the award, less the amounts already deposited, if any, within a month from the date of this judgment. The Tribunal shall disburse the enhanced compensation with interest and cost to the appellant in accordance with law. MACA stands disposed as above. Sd/- **==> picture [252 x 33] intentionally omitted <==** **SYAM KUMAR.V.M.**