Kunju Mohammed v. Haseef K.A., Abdul Rahiman and The Manager, United India Insurance Co. Ltd. (MACA No.676 of 2012)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 13TH DAY OF JULY 2017/22ND ASHADHA, 1939** **MACA.No. 676 of 2012 () ------------------------** **(AGAINST THE AWARD IN OPMV 419/2007 of MACT, IRINJALAKUDA DATED 1212-2011)** **APPELLANT(S)/PETITIONER:** **-----------------------** **KUNJU MOHAMMED** **S/O.USMAN KUTTY, KARIPPAKULAM HOUSE, KARUPADANNA DESOM & P.O., THEKKUMKARA VILLAGE, MUKUNDAPURAM TALUK.** **BY ADVS.SRI.V.BINOY RAM SMT.SAJITHA P.SOMAN** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** ## **1. HASEEF K.A** **KUZHIKANDATHIL HOUSE, MANAKALAPADY, KONATHUKUNNU DESOM & P.O., THRISSUR DISTRICT, PIN-680123.** ## **2. ABDUL RAHIMAN** **PARAYIL VEETTIL, KARUPADANNA DESOM &P.O., THEKKUMKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN680670.** **3. THE MANAGER** **UNITED INDIA INSURANCE CO.LTD., TANA, IRINJALAKUDA, PIN680121.** **R3 BY ADV. SRI.T.V.AJAYAKUMAR BY SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jm/** ## **C.T.RAVI KUMAR** ## **&** ## **ANIL K.NARENDRAN, JJ.** ======================== **M.A.C.A.No.676 of 2012** ======================== Dated this the 13[th] day of July 2017 ## **JUDGMENT** ## Anil K.Narendran, J. This appeal arises out of an award passed by the Motor Accidents Claims Tribunal, Irinjalakuda dated 12.12.2011 in O.P. (M.V)No.419/2007, an application filed by the appellant/claimant under Section 166 of the Motor Vehicles Act, 1988 on account of the injuries sustained by him in a motor accident, which occurred on 14.2.2007, while he was riding on his motor vehicle bearing Reg.No.KL-8/W-6924 along with his friend as a pillion rider, who is the claimant in O.P.(M.V.)No.1481/2007. When the motor cycle reached the place of accident, it was hit by another motor cycle bearing Reg.No.KL-8/Z-6657 owned and ridden by respondents 1 and 2 and insured with the third respondent. As a result of the accident, appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motor cycle bearing Reg.No.KL-8/Z-6657 by the second 2 M.A.C.A.No.676 of 2012 respondent rider, claim petition was filed before the Tribunal claiming a total compensation of Rs.9,30,000/- under different heads. 2. Before the Tribunal, the third respondent insurer filed written statement admitting insurance coverage of the motor cycle bearing Reg.No.KL-8/Z-6657. However, they contended that the second respondent rider was not having a valid driving licence and therefore, there is a violation of policy conditions. 3. Before the Tribunal, the claim petition was tried along with O.P.(M.V.)No.1481/2007 filed by the pillion rider in motor vehicle bearing Reg.No.KL-8/W-6924. On the side of the claimants, Exts.A1 to A16 were marked and the Doctor who had issued Ext.A11 disability certificate was examined as PW1. On the side of the respondents Exts.B1 to B3 were marked. The respondents have not chosen to adduce any oral evidence. 4. After considering the evidence and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent riding of motor cycle M.A.C.A.No.676 of 2012 3 bearing Reg.No.KL-8/W-6934 by the second respondent rider. Since the said vehicle was covered by a valid insurance policy, the third respondent insurer was held liable to indemnify the first respondent owner. However, since the second respondent rider was not having valid licence, the insurer was permitted to recover the amount of compensation paid to the appellant/ claimant by proceeding against the owner. Under different heads, the Tribunal awarded a total compensation of Rs.3,50,843/- and directed the third respondent insurer to deposit the said amount before the Tribunal together with interest at the rate of 7.5% per annum from the date of petition, i.e., from 3.5.2007 till realisation, with proportionate costs. The third respondent insurer was allowed to recover the said amount from the first respondent owner of motor cycle bearing Reg.No.KL-8/W-6924. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/ claimant is before this Court in this Appeal. 6. The accident is of the year 2007 and at the time of M.A.C.A.No.676 of 2012 4 accident, the appellant/claimant was an able bodied person, aged 54 years. He claimed a monthly income of Rs.15,000/- as a Building Contractor. However, no reliable materials were placed before the Tribunal in order to prove his monthly income. The appellant/claimant has also not chosen to mount the box. It was in such circumstances that the Tribunal fixed the monthly income of the appellant/claimant notionally at Rs.3,000/- for the purpose of assessing compensation under different heads. 7. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]** , the Apex court notionally fixed the monthly income of a Coolie, who met with a motor accident in the year 2004, as Rs.4,500/-. In the instant case, the accident is of the year 2007 and at the time of accident the appellant/claimant was an able bodied person aged 54 years. Considering the economic conditions prevailing as on the date of accident, we deem it appropriate to re-fix the monthly income of the appellant/claimant notionally at Rs.5,500/- for the purpose of assessing compensation under M.A.C.A.No.676 of 2012 5 different heads. 8. The injuries sustained by the appellant/claimant as a result of accident, as borne out from Ext.A2 wound certificate are as follows: _“Comminuted compound fracture both bones of right leg; compound tissue defect middle 3[rd] right leg with vascular defect; soft tissue defect of 30 x15 cms and base defect of 10cms.”_ 9. As evident from Ext.A7 to A10 discharge summaries, the appellant/claimant has undergone inpatient treatment for a total period of 51 days in 4 different spells, commencing from the date of accident till 14.7.2008. The nature of treatment undergone is as follows: _“All dead tissues and non viable bone removed; external fixator was applied and disrupted AT vessels clipped; free gracilis muscle transfer from left thigh to right leg etc.”_ 10. Ext.A11 is the disability certificate issued by PW1 Doctor, in which 21% permanent disability has been certified. Ext.A12 series are the photographs showing the injuries sustained by the appellant/claimant and as discernible from the award, he was personally present before the Tribunal with his M.A.C.A.No.676 of 2012 6 right leg still bandaged. 11. The compensation awarded by the Tribunal under different heads reads thus: |**Sl.No**.|**Heads of claim**|**Amount**<br>**Claimed**<br>**(Rs.)**|**Amount awarded**<br>**(Rs.)**| |---|---|---|---| |1|Loss of earning|1,80,000/-|36,000/| |2|Medical and<br>miscellaneous|2,50,000/-|1,95,323/-| |3|By-stander's expenses|30,000/-|10,000/-| |4|Transportation<br>expenses|10,000/-|1,000/-| |5|Pain and suffering|1,00,000/-|20,000/-| |6|Loss of disability|3,00,000/-|83,160/-| |7|Extra nourishment|10,000/-|5,000/-| ||Total|9,30,000/-|3,50,483/-| 12. The Tribunal awarded a sum of Rs.36,000/- under the head loss of earning, at the rate of Rs.3,000/- for a period of 12 months. Considering the nature of injuries sustained and the treatment the appellant/claimant had undergone, as borne out from the medical records, the Tribunal was justified in awarding loss of earning for a period of 12 months. Since, we have refixed the monthly income of the appellant/claimant notionally at M.A.C.A.No.676 of 2012 7 Rs.5,500/-, the compensation payable under this head comes to Rs.66,000/- (5,500/-x12). After deducting Rs.36,000/- already awarded by the Tribunal, the appellant/claimant will be entitled for an additional compensation of **Rs.30,000/-** under this head. 13. Towards 'disability compensation', the Tribunal awarded a sum of Rs.83,160/- taking Rs.3,000/- as the monthly income, 11 as the multiplier and the percentage of permanent disability as 21%. Since we have re-fixed the monthly income of the appellant/claimant notionally at Rs.5,500/-, the compensation payable under this head comes to Rs.1,52,460/(5,500x 12 x 11x 21/100). After deducting Rs.83,160/- awarded by the Tribunal under this head, the appellant/claimant will be entitled for an additional compensation of **Rs.69,300/-** . 14. Though the appellant/claimant has sustained a permanent disability of 21%, the Tribunal awarded no compensation under the head 'loss of amenities'. Considering the nature of injuries sustained, as borne out from medical records, and the disability that has arisen therefrom, as certified in M.A.C.A.No.676 of 2012 8 Ext.A11 certificate, we deem it appropriate to grant a sum of **Rs.25,000/-** under the head loss of amenities. 15. The Tribunal awarded a sum of Rs.10,000/- towards 'by-stander's expenses' and a further sum of Rs.5,000/- towards 'extra nourishment'. The appellant/claimant had undergone inpatient treatment for a period of 51 days. Since the accident is of the year 2007, he is entitled for compensation under the head by-stander expenses at the rate of Rs.200/- per day and that under the head extra nourishment at the rate of Rs.100/- per day. In the result, the compensation under the head 'by stander's expenses is re-fixed as Rs.10,200/- (200 x 51), resulting an additional compensation of **Rs.200/-** and that under the head extra nourishment to Rs.5,100/- (100 x 51), resulting an additional compensation of **Rs.100/-** . 16. The compensation awarded by the Tribunal under other heads represents just and reasonable compensation which warrants no enhancement in this appeal. 17. In the result, the appellant/claimant will be entitled M.A.C.A.No.676 of 2012 9 for an additional compensation of Rs. **1,24,600** /- (30,000+ 69,300+25,000+200+100) in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. 18. Since the insurance coverage of the offending vehicle is not in dispute, the third respondent insurer shall deposit the said amount before the Tribunal within two months from the date of receipt of a certified copy of this judgment. In view of violation of policy conditions, the third respondent insurer will be at liberty to recover the amount deposited before the Tribunal, by proceeding against the first respondent owner. The appeal is disposed of as above. No order as to costs. sd/ **C.T.RAVIKUMAR JUDGE** sd/ ## **ANIL K.NARENDRAN** **JUDGE** jm/