MACA No. 1216 of 2009 – Jayapalan v. Rasheed, Fousiya Abdul Latheef & National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 2[ND] DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943** **MACA NO. 1216 OF 2009** **AGAINST THE AWARD DATED 19.08.2008 IN OPMV 519/2006 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** JAYAPALAN, AGED 32 YEARS, S/O.PUNDU P.SANKARAN, GOVINDANURATH HOUSE,, ALTHARA, PUNNAYOORKULAM, THRISSUR. BY ADV SRI.SHEJI P.ABRAHAM ## **RESPONDENTS/RESPONDENTS:** - 1 RASHEED, S/O MOIDEEN, VALIYAKATH HOUSE, AKALADU,, PUNNAYOORKULAM, THRISSUR. - 2 FOUSIYA ABDUL LATHEEF W/O.ABDUL LATHEEF, VALIYAKATH HOUSE, AKALADU, THRISSUR. - 3 NATIONAL INSURANCE CO.LTD. BRANCH OFFICE, THRISSR,, (POLICY NO.9397423 VALID FROM, 18/10/05 TO 17/10/06). BY ADVS. SMT.DEEPA GEORGE SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.1216/2009 ## -:2:- ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.519/2006 on the file of the Motor Accidents Claims Tribunal,Ottappalam. 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 sustained to him in an accident on 31.03.2006. It was his case that, on the above said date, while he was riding his motorcycle bearing registration No. KL 8 AB 8642 through Chavakkad- Puduponnay road, a car bearing registration No. KL 8 AB 4888, driven by the first respondent in a rash and negligent manner, hit the motorcycle of the appellant. The appellant sustained multiple and serious injuries including loss of second , third and fourth right toes, metacarpel right toes M.A.C.A.No.1216/2009 -:3:- fracture, crush injury on his right foot, fracture of his right toe bone and haemerthrosis of right knee. He was treated as an inpatient for a period of 8 days at the Abdul Wahab Memorial Ragh Charitable Hospital. The car was owned by the second respondent and insured with the third respondent. The appellant was a Carpenter by profession and was earning a monthly income of Rs.4000/-. The appellant has become permanently disabled. Hence, the appellant claimed a compensation of Rs.2,76,500/- from the respondents, which claim was limited to Rs.1,50,000/-. 3. The pillion rider on the same motorcycle also filed O.P.(M.V) No.515/2006 before the same Tribunal, seeking compensation from the respondents. 4. The respondents 1 and 2 did not contest the proceedings and were set exparte. 5. The third respondent had filed separate written statements in the two claim petitions M.A.C.A.No.1216/2009 -:4:- attributing negligence on the appellant. The third respondent also contended that the owner and insurer of the motorcycle were also necessary parties in the claim petitions. The third respondent disputed the age, income and occupation of the petitioners in both the claim petitions. Hence, the third respondent prayed that the claim petition be dismissed. 6. The Tribunal consolidated and jointly tried the two claim petitions. 7. The appellant was examined as Pw1 and Exhibits A1 to A11 were marked on his side. The respondents did not let in any evidence. 8. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.44,000/- with interest and cost. 9. Dissatisfied with the quantum of compensation M.A.C.A.No.1216/2009 -:5:- awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri.Sheji P Abraham, the learned counsel appearing for the appellant/petitioner and Smt. Deepa George, the learned counsel appearing for the third respondent/insurer. 11. The point that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 12. Exhibit A4 charge sheet filed by the Chavakkad Police in Crime No.201/2006 clearly proves that the accident was caused due to the negligence of the first respondent. Indisputably, the second respondent was the owner and the third respondent was the insurer of the car. The respondents have not let in any evidence to discredit Exhibit A4 charge sheet. The third respondent has not proved that the second respondent had violated the insurance policy M.A.C.A.No.1216/2009 -:6:- conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Income** 13. The appellant had claimed that he was a Carpenter by profession and drawing a monthly salary of Rs.4000/-. For the want of material, the Tribunal has fixed the notional monthly income of the appellant at Rs.2500/-. 14. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 15. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2006, I re-fix notional monthly income of the appellant at Rs.4000/- as claimed in the M.A.C.A.No.1216/2009 ## -:7:- claim petition. ## **Loss of earnings** 16. On the basis of the injuries sustained by the appellant, the Tribunal has awarded him loss of earning for a period of three months, though he had claimed two months in the claim petition. I find the same to be reasonable and just. However, in view of the re-fixation of the notional monthly income of the appellant at Rs.4000/-, I award him an amount of Rs.12,000/- towards ‘loss of earnings’, instead of Rs.7500/- awarded by the Tribunal. ## **Disability** 17. The appellant had produced Exhibit A7 disability certificate issued by the Dr. T.G.Gopinathan, retired Civil Surgeon and Senior Consultant Orthopaedic Surgeon. He has certified that due to the loss of three toes of appellant, he has difficulty in walking and has pain while walking. Accordingly, the M.A.C.A.No.1216/2009 ## -:8:- Doctor has assessed the permanent disability of the appellant at 12%. Although the Tribunal accepted the above disability certificate, the Tribunal has scaled down the disability to 3%. 18. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable supreme Court has categorically held that if the Tribunal is dissatisfied with the disability certificate produced before it, the Tribunal has to refer the injured-claimant to a duly constituted medical board. Further, what needs to be looked into in a injury claim, is the functional disability of the injured/claimant. Also, if the disability certificate is marked in evidence without any objection from the other side, the same can be accepted on record. 19. In the instant case, though the Tribunal accepted and marked Exhibit A7 in evidence, the Tribunal has scaled down the disability to 3% without any apparent reason. M.A.C.A.No.1216/2009 -:9:- 20. Going by serial No.3 of the Ist Schedule of the Workmen’s Compensation Act, 1923, it is deemed that a person whose three toes of one foot are amputated, he has deemed to have a permanent disability of 6%. As the injury sustained by the appellant falls within the above schedule, I am inclined to accept Exhibit A7 disability certificate and fix the functional disability of the appellant at 6%. ## **Multiplier** 21. The appellant was aged 32 years at the time of the accident. In the light of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘16’, instead of ‘17’ adopted by the Tribunal. ## **Loss due to disability** 22. Taking into account the above mentioned factors, namely, the notional monthly income of the M.A.C.A.No.1216/2009 -:10:- petitioner at Rs.4000/-, his functional disability at 6% and the multiplier at 16, I award him an amount of Rs.46,080/-, instead of Rs.15,300/- awarded by the Tribunal. ## **- By stander expenses** 23. It is proved and established that the appellant was treated as an inpatient for a period of 8 days. On a consideration of the fact that the accident occurred in the year 2006, I award him an amount of Rs.400/- per day for a period of 8 days towards ‘bystander expenses’, which works out to Rs.3200/-. Similarly, I award an amount of Rs.200/- per day for a period of 8 days towards ‘extra nourishment’ which works out Rs. 1600/-. ## **Pain and sufferings and Loss of amenities** 24. The appellant had claimed an amount of Rs.30,000/- each under the heads ‘pain and suffering’ and ‘loss of amenities’. The Tribunal has only awarded M.A.C.A.No.1216/2009 ## -:11:- an amount of Rs.10,000/- under the said head ‘pain and sufferings’. 25. Taking into account the fact that the appellant had sustained multiple injuries including loss of his three toes, that he was treated as an inpatient for a period of 8 days, he was indisposed for a period of three months and that he has suffered a functional disability of 6%, I award him a further amount of Rs.15,000/- under the head ‘pain and sufferings’ and Rs.20,000/- under the head ‘loss of amenities’. 26. With respect to compensation awarded under the heads ‘transportation and ‘damage to clothing’ as well as ‘medical expenses’, I find the same to be reasonable and just compensation. 27. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I hold that the appellant/petitioner is entitled to enhancement of M.A.C.A.No.1216/2009 -:12:- ## 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 the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by this<br>Court| |---|---|---|---| |1|Loss of earnings|7500|12000| |2|Transport<br>and<br>clothing|2000|2000| |3|Bystander expense|1200|3200| |4|Extra nourishment|0|1600| |5|Medical expenses|8000|8000| |6|Pain and sufferings|10000|25000| |7|Loss of amenities|0|20000| |8|Loss<br>due<br>to<br>disability|15300|46080| ||**Total**|**44000**|**1,17,880**| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.73,880/- with interest at the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.5000/-. The third respondent/insurer is ordered to deposit the enhanced compensation with M.A.C.A.No.1216/2009 -:13:- interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant/petitioner in accordance with law. SD/- ## **C.S.DIAS,JUDGE** rmm/03.02.2022