MACA Nos. 1081 of 2013 and 1441 of 2013: Sureshkumar T.D. v SMT. Sara Muhammed and others / N.V. Asokan v SMT. Sara Muhammed and others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 10[TH]DAY OF MARCH 2023 / 19TH PHALGUNA,1944 ``` ``` MACA NO. 1081 OF 2013 ``` ``` OPMV 1396/2003 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR ``` ## **`APPELLANT/PETITIONER:`** ``` SURESHKUMAR T.D.,S/O.DAMODHARAN, RESIDING AT THUMBARASSERY HOUSE, P.O.KUZHOOR, THRISSUR DISTRICT. ``` ``` BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 SMT. SARA MUHAMMED, W/O.MUHAMMED, RESIDING AT POOLAYIL HOUSE, SUGAPURAM P.O., EDAPAL, MALAPPURAM - 679 576.`** - **`2 SULFIKAR K.K., S/O.KUNHAPPU, RESIDING AT KOTHAKULANGARA HOUSE, OTHALOOR P.O., MALAPPURAM - 679 534.`** - **`3 UNITED INDIA INSURANCE COMPANY LIMITED, P.B.NO.9, 1ST FLOOR, WESTERNWING - AMBADI BUILDING, C.V.JUNCTION, PONNANI - 679 577.`** ``` BY ADV SRI.M.HARISHARMA BY ADV SRI.PMM.NAJEEB KHAN ``` ``` THISMOTORACCIDENTSCLAIMSAPPEALHAVINGBEENFINALLY HEARDON03.03.2023,ALONGWITHMACA.1441/2013,THECOURTON 10.03.2023 DELIVERED THE FOLLOWING: ``` MACA Nos. 1081 & 1441 of 2013 2 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 10[TH]DAY OF MARCH 2023 / 19TH PHALGUNA,1944 ``` ## **`MACA NO. 1441 OF 2013`** ``` OPMV 1789/2003 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR ``` ## **`APPELLANT/PETITIONER:`** ``` N.V.ASOKAN, S/O.VELAYUDHAN, C/O.SANKARANKUTTY, RESIDING AT MADATHIL HOUSE, PUTHOORKARA, AYYANTHOLE, THRISSUR DISTRICT. ``` ``` BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1MRS.SARA MUHAMMED, W/O.MUHAMMED, RESIDING AT POOLAYIL HOUSE, SUGAPURAM P.O., EDAPAL, MALAPPURAM - 679 576. 2SULFIKAR K.K., S/O.KUNHAPPU, RESIDING AT KOTHAKULANGARA HOUSE, OTHALOOR P.O., MALAPPURAM - 679 534. 3UNITED INDIA INSURANCE COMPANY LIMITED, P.B.NO.9, 1ST FLOOR, WESTERNWING - AMBADI BUILDING, C.V.JUNCTION, PONNANI - 679 577. ``` ``` BY ADV SRI.M.HARISHARMA ``` ``` THISMOTORACCIDENTSCLAIMSAPPEALHAVINGBEENFINALLY HEARDON30.03.2023,ALONGWITHMACA.1081/2013,THECOURTON 10.03.2023 DELIVERED THE FOLLOWING: ``` MACA Nos. 1081 & 1441 of 2013 3 ## **J U D G M E N T** The appellants are the claimants in OP(MV) No.1396 of 2003 and OP(MV) No.1789 of 2003 respectively on the file of Motor Accidents Claims Tribunal, Thrissur. They are assailing the common award dated 16.04.2011 on the ground of inadequacy of compensation. 2. On 31.01.2003, at about 10.30 p.m., while the appellants were travelling in a motorcycle through Kottappuram-Edappal road, KL-10/P-2865 Mini Lorry driven by the 2[nd] respondent, in a rash and negligent manner, dashed against their motorcycle, and they fell down and sustained injuries. The appellant in MACA NO.1081 of 2013 was a 29 years old Civil Engineer, earning monthly income of Rs.6,000/-. He suffered serious injuries including open comminuted intercondylar fracture of right femur with bone loss and open fracture of inferior pole of right patella. He suffered disability also due to that accident. Though he approached the Tribunal claiming compensation of Rs.5,73,000/-, the Tribunal awarded only Rs.1,89,830. Hence he filed MACA No.1081 of 2013. 3. The appellant in MACA No.1441 of 2013 also suffered injuries in the accident and he was admitted and treated at Ernakulam Medical Centre. The Tribunal awarded only a nominal amount of Rs.6,000/- as MACA Nos. 1081 & 1441 of 2013 4 compensation and hence, he filed MACA No.1441 of 2013. 4. The 1[st] respondent was the owner, the 2[nd] respondent was the Driver and the 3[rd] respondent was the Insurer of the offending Mini Lorry. Respondents 1 and 2 remained ex parte. The accident, injuries, and the Policy of the offending vehicle are not in dispute. 5. Before the Tribunal, PWs 1 and 2 were examined and Exts.A1 to A16 were marked from the side of the appellants. Ext.B1-copy of the Insurance Policy was marked from the side of the 3[rd] respondent. 6. Now let us see whether any interference is warranted in the impugned award. 7. Heard learned counsel Sri.T.C.Suresh Menon appearing for the appellants and learned counsel Sri.M.Harisharma appearing for the 3[rd] respondent. 8. In MACA No.1081 of 2013, the main ground of appeal is that though he was a Diploma Civil Engineer, aged only 29, earning monthly income of Rs.6,000/-, the Tribunal took his notional income @ Rs.2,500/-. It is true that he has not produced any documents to support his job or income. Even then, going by the decision **Ramachandrappa v. Manager, Royal Sundaram Alliance** MACA Nos. 1081 & 1441 of 2013 5 **Insurance Company Limited [AIR 2011 SC 2951]** , since the accident was in the year 2003, he was eligible to get his notional income fixed @ Rs.4,000/-. So this Court is inclined to fix his notional income @ Rs.4,000/-. The Tribunal took six months’ period for assessing loss of earning @ Rs.2,500/-. Since we have fixed his notional income @ Rs.4,000/-, for six months’ period he was eligible to get Rs.24,000/- (4,000 x 6). He was already paid Rs.15,000/- by the Tribunal. So, he is entitled to get the balance amount of Rs.9,000/- as enhanced compensation under the head ‘loss of earning’. 9. The appellant had suffered disability of 50% as seen from Ext.A6 Disability Certificate. But Ext.A7 Disability Certificate issued on 27.12.2007, which is after two years of issuance of Ext.A6, will show his disability as 20%. So learned Tribunal accepted the Disability Certificate, which was later in point of time, i.e., Ext.A7. But even then, the Tribunal without attributing any reason, fixed his disability at 12%. It has come out in evidence that there was permanent disability of 20% as on 27.12.2007 and he was walking with limbing. Under that circumstance, it was not fair from the part of the Tribunal to reduce the disability reported by the Doctor in Ext.A7 to 12%. So this Court is inclined to accept his disability as 20%, as reported in Ext.A7 Disability Certificate. We have fixed his notional income @ Rs.4,000/-. MACA Nos. 1081 & 1441 of 2013 6 The multiplier applicable is 17 as he was aged only 29. So the compensation for permanent disability can be assessed as Rs.1,63,200/(4,000x12x17x20/100). Since he was already paid Rs.61,200/- under the head disability, he is eligible to get the balance amount of Rs.1,02,000/-. 10. Towards bystander expenses, he was paid only Rs.2,500/-. There was evidence to show that he was admitted in hospital on 2-3 occasions and he underwent various surgical procedures and the total period of admission was 45 days. Considering that fact, this Court is inclined to award Rs.5,000/- more towards bystander expenses. 11. Towards extra nourishment also, this Court is inclined to award Rs.5,000/- more as the appellant was hospitalised for 45 days with multiple fractures. 12. Towards loss of amenities no amount was seen awarded by the Tribunal. The appellant was a 29 years old man, who suffered permanent disability and limbing, which might have affected his marriage prospects also. Considering that fact, this Court is inclined to award Rs.25,000/- towards loss of amenities. 13. The compensation awarded under all other heads seems to MACA Nos. 1081 & 1441 of 2013 7 ## be reasonable and so it need not be interfered with. |Head of claim|Amount awarded<br>by the Tribunal|Amount<br>awarded in<br>appeal|Difference to be<br>drawn as<br>enhanced<br>compensation| |---|---|---|---| |Loss of earning|Rs.15,000/-|Rs24,000/-|Rs.9,000/-| |Compensation for<br>permanent disability|Rs.61,200/-|Rs.1,63,200/-|Rs.1,02,000/-| |Bystander expenses|Rs.2,500/-|Rs.7,500/-|Rs.5,000/-| |Extra nourishment|Rs.2,000/-|Rs.7,000/-|Rs.5,000/-| |Loss of amenities|……|Rs.25,000/-|Rs.25,000/-| |Total|||Rs.**1,46,000**/-| 14. So the appellant in MACA Nos.1081 of 2013 is entitled to get enhanced compensation of Rs.1,46,000/- (9,000 + 1,02,000 + 5,000 + 5,000 + 25,000). 15. In MACA No.1441 of 2013, the appellant is relying on Exts.A13, A14 and A16 documents to claim enhanced compensation. No Wound Certificate was seen produced to prove the injuries suffered by him. But Ext.A16 photograph shows that he had suffered injury on his right hand. Ext.A13(a) are the Medical Bills amounting to Rs.5,925/- in total. Ext.A13 is the In-Patient bill produced from Ernakulam Medical Centre for an amount of Rs.20,658/-. It will show that the date of admission was on 31.01.2003., i.e., the date of MACA Nos. 1081 & 1441 of 2013 8 accident and the date of discharge was shown as 04.03.2003. But even the appellant has no case that he was hospitalised for one month, for the injuries suffered in this accident. Moreover, the Tribunal found that most of the treatment was with respect to his diabetic condition. In the absence of any Discharge Summary or Wound Certificate to prove the injuries and period of hospitalisation, learned Tribunal awarded only Rs.6,000/- in total as compensation. Before the appellate court also no documents were produced by the appellant to show that the In-Patient bill i.e., Ext.A13 produced by him, before the Tribunal, was with respect to the injuries he had suffered in this accident. Even then, since the date of admission is shown as 31.01.2003, i.e., the date of accident, and he had paid some amount for In-Patient treatment in Ernakulam Medical Centre, this Court is inclined to award a lump sum amount of Rs.5,000/- as enhanced compensation. 16. The finding of the Tribunal that the 3[rd] respondent is liable to compensate the appellants is not in dispute. So, the 3[rd] respondent is directed to deposit enhanced compensation of Rs.1,46,000/(Rupees One lakh Forty Six Thousand only) in the bank account of the appellant in MACA No.1081 of 2013 and Rs.5,000/- (Rupees Five Thousand only) in the bank account of the appellant in MACA No.1441 MACA Nos. 1081 & 1441 of 2013 9 of 2013 with interest @ 8% per annum from the date of petition till the date of realisation (excluding 613 days of delay in MACA No.1081 of 2013 and 633 days of delay in MACA No.1441 of 2013 in filing the appeals) within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellants towards Tax, balance court fee and legal benefit fund. These appeals are allowed accordingly. No order as to costs. **Sd/-** **SOPHY THOMAS JUDGE** DSV/08.03.2023