M. Rajagopalan v. P. Faizal and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 29[TH] DAY OF SEPTEMBER 2021 / 7TH ASWINA, 1943** ## **MACA NO. 1160 OF 2009** **AGAINST THE AWARD DATED 23.05.2008 IN OPMV 2127/2003 OF PRINCIPAL** ## **MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE,** ## **APPELLANT/PETITIONER:** M.RAJAGOPALAN, AGED 46 YEARS, S/O.RAGHAVAN NAIR, B-585, P & T QUARTERS,, NALLALAM, KOZHIKODE. BY ADVS. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH ## **RESPONDENTS/RESPONDENTS:** 1 P.M.FAIZAL, S/O ABDUL MAJEED PADINJARE MUKKOM CHENI, MATTOOL, KANNUR DIST. 2 UNITED INDIA INSURANCE CO.LTD. CHOVVA BRANCH, KALTEX JUNCTION, KANNUR. BY ADV SMT.S.JAYASREE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1160 OF 2009 2** Dated this the 29[th] day of September,2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.2127/2003 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. 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 23.03.2003. It was his case that, while he was riding his motorcycle bearing registration No. KL11/Q-7606 from Calicut to Nallalm, when he reached in front of the P & T Quarters, a car bearing registration No. KL-11-A 8071 (car) hit on the rear side of the motorcycle. The car was driven by its driver in a rash and negligent manner. The car was owned by the 1[st] respondent and insured with the 2[nd] respondent. The appellant sustained **MACA NO. 1160 OF 2009 3** serious injuries and was treated at the Koyas Hospital, Cheruvannur and, thereafter, at the Medical College Hospital, Calicut. The appellant sustained a fracture and dislocation of his right shoulder, neurological difficulties and injury to his right little toes. He was working as a Senior Telegraphic Operating Assistant, Calicut and earning a monthly income of Rs.12,159/-. The appellant was on half leave. Hence he claimed a total pay compensation of Rs.13,11,742/- from the respondents which was limited to Rs.6,00,000/-. 3. The 1[st] respondent did not contest the proceedings. 4.The second respondent filed written statement admitting that the car had a valid insurance coverage. However, it was disputed that the accident occurred due to the negligence of the driver of the car. It was also contended that the claim petition was bad for non-joinder of necessary parties. 5. The appellant produced and marked Exhibits A1 to **MACA NO. 1160 OF 2009 4** A10 in evidence. 6. The Tribunal, after analyzing the pleadings and materials on record, on finding that the appellant did not sustained any disability and no loss of income, allowed the claim petition in part, by permitting the appellant to realise an amount of Rs.12,000/-. However, the Tribunal found that there was contributory negligence on the part of the appellant to the extent of 10%. Accordingly, the 2[nd] respondent was directed to pay an amount of Rs.10800/with interest at the rate of 7% per annum from the date of filing the petition till the date of realisation. 7. Aggrieved by the fixation of the contributory negligence on the appellant and dissatisfied with the quantum of compensation, the petitioner is in appeal. 8. Heard; Sri.Jacob Abraham the learned counsel appearing for the appellant/petitioner and Smt. S.Jayasree the learned counsel appearing for the second respondent/insurer. ## **MACA NO. 1160 OF 2009 5** 9. The questions that emerge for consideration in the appeal are (i)whether the fixation of the contributory negligence of the appellant is justifiable ? (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Question No.(i)** 10. Even though the appellant had alleged that the accident was caused by the driver of the car, the appellant had not named or impleaded the driver of the car as a party in the appeal. He also did not produce the final report filed by the police after investigation. In Exhibit A1 FIR, the name of the driver is not shown. In such circumstances, the Tribunal held that there was contributory negligence on the part of the appellant, which is only justifiable. Although the Tribunal found that the appellant was guilty for contributory negligence to the extent of 50%, the Tribunal reduced it to 10%. In view of the fact there was no cross objection from the side **MACA NO. 1160 OF 2009 6** of the respondents, I confirm the finding of the Tribunal fixing the contributory negligence at 10%. ## **Income of the appellant** 11. Admittedly, the appellant was employed as a Senior Telegraphic Operating Assistant in the BSNL, Calicut and earning a monthly of Rs.12,159/-. The appellant had not produced any document before the Tribunal to substantiate his income. Moreover, there is nothing on record to prove that he sustained any loss of income due to the accident. Hence, it is only to be inferred that the appellant had no loss of income due to the accident. ## **Loss due to disability** 12. The Tribunal has observed in paragraph 9 of the impugned award that although the appellant was directed to appear before the Medical College Hospital, Calicut, he did not avail the benefit. It was in the said circumstances, the Tribunal held that the appellant has ## **MACA NO. 1160 OF 2009 7** no permanent disability. 13. Nevertheless, the appellant had filed I.A. No.3542/16 before this Court, seeking a direction that his disability be assessed by a competent medical board. 14. This Court by order dated 23.01.2017 referred the appellant to a Medical Board. The Medical Board by the certificate of permanent disability dated 23.03.2017 has assessed and fixed the permanent disability of the appellant at 51.22%, due to stiffness of his right shoulder joint, stiffness of the fingers joints, hand joints right side and fracture dislocation of his right shoulder with median nerve injury. The said certificate is accepted on record and marked as Exhibit ‘X1’. 15. In **Raj Kumar v. Ajay Kumar** [(2011) 1 KLT 620 SC] the Honourable Supreme Court has held that what has been looked into a claim for compensation on account of the injury sustained in an accident, is the functional disability of the injured claimant. ## **MACA NO. 1160 OF 2009 8** 16. In the instant case, despite the above permanent disability, the appellant has continued and is still in service. He retires from service only next year, when he attains the age of superannuation i.e.,60 years. Therefore, despite the injury, the appellant has not sustained any loss due to disability. 17. What needs to be looked into in the instant case is the loss of income that the appellant would incur subsequent to his retirement. 18. In **Puttamma v. Narayana Reddy** [2014 (1) KLT 738] the Honourable Supreme Court has held that, if there are cogent reasons, the split multiplier method can be adopted. 19. In the above factual matrix, taking into account that the appellant would suffer loss of income post retirement, I hold that the split multiplier method can be adopted in the present case. Accordingly, I fix the appellant post retirement notional monthly income at **MACA NO. 1160 OF 2009 9** Rs.5000/-, following the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236] for the purpose of awarding compensation for loss due to disability. 20. Even though the Medical Board has assessed the permanent disability of the appellant at 51.22%, considering the fact that he would attain the age of 60 years next year, I hold that his functional disability would be 25%. 21. Taking into account the above mentioned factors, namely, the monthly income of the appellant at Rs.5000/-, his disability at 25% and the multiplier at 9, following the principles in **Sarla Verma and Others v. Delhi Transport Corporation and another** [2010 (2) KLT 802 SC], I hold that the appellant is entitled for compensation for loss due to disability at Rs.1,35,000/-. **MACA NO. 1160 OF 2009 10** ## **Future Medical Treatment** 22. Although the appellant had filed I.A. No.1/2021 producing 65 documents before this Court as additional evidence, the application is vehemently opposed by the 2[nd] respondent, inter alia, disputing the genuineness and the authenticity of the said documents. Nevertheless, the learned counsel for the 2[nd] respondent fairly admitted that an amount of Rs.18,373/- was incurred by the appellant towards future medical treatment. In the above situation, without accepting the application or marking the above said documents, based on the concession shown by the 2[nd] respondent, I award the appellant an amount of Rs.18,373/- towards future medical treatment. ## **Compensation for pain and sufferings.** 23. The appellant had claimed an amount of Rs.1,00,000/- towards compensation for pain and sufferings. The Tribunal awarded only a meagre amount of Rs.5000/-. ## **MACA NO. 1160 OF 2009 11** 24. Taking into account the injuries that the appellant had sustained and as certified by the Medical Board in Exhibit X1, that the appellant has permanent disability of 51.22%, which I have treated as functional disability at 25%, I hold that the appellant is entitled for an enhancement of compensation under the said head by a further amount of Rs.20,000/- i.e., totalling to Rs.25,000/- ## **Loss of amenities** 25. As I have already found that the appellant has functional disability of 25%, I enhance the compensation for ‘loss of amenities’ by a further amount of Rs.24,000/i.e.,totalling to Rs.25,000/-. 26. With respect to other heads of compensation, namely, medical treatment and transportation expenses, I find that the Tribunal has awarded reasonable and just compensation. 27. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to ## **MACA NO. 1160 OF 2009 12** in the afore-cited decisions, I am of the opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculate<br>d by this<br>Court| |---|---|---|---| |1|Transport<br>expenses|500|500| |2|Medical expenses|3500|3500| |3|Pain<br>and<br>sufferings|5000|25000| |4|Loss of amenities|1000|25000| |5|Future treatment|Nil|18373| |6|Loss<br>due<br>to<br>disability|1800|135000| ||**Total**|**11800**<br>**12,000-**<br>**10%= 10800**|**207373-**<br>**10%**<br>**=186636**| ## **MACA NO. 1160 OF 2009 13** In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.1,75,836/- with interest at the rate of 7 % per annum from the date of petition till the date of deposit and a cost of Rs.3000/-. The second respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant in accordance with law. All Pending interlocutory applications shall stand closed. Sd/- ## **C.S.DIAS,JUDGE** rmm/30/9/2021 ## **MACA NO. 1160 OF 2009 14** ## **APPENDIX** ## APPELLANT’S EXHIBITS ANNEXURE X1 PROCEEDINGS OF THE MEDICAL BOARD, GOVERNMENT MEDICAL COLLEGE HOSPITAL, CALICUT, DATED 23.03.2017 RESPONDENTS’ EXHIBITS NIL