MACA Nos. 109 of 2014 & 113 of 2014 (Shahul Hameed v. Shanavas; Shafeer v. Shanavas) against common award in OP(M.V) Nos. 859/2010 and 860/2010

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` TUESDAY, THE 27[TH] DAY OF SEPTEMBER 2022 / 5TH ASWINA, 1944 MACA NO. 109 OF 2014 ``` ``` AGAINST THE COMMON AWARD DATED 10.07.2013 IN O.P(M.V) NO.859/2010 ``` ## **`OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPALAM`** ## **`APPELLANT/PETITIONER:`** ``` SHAHUL HAMEED, AGED 21 YEARS, S/O.JAMALUDHEEN, RAIMARAKKAR HOUSE, KUNDALIYOOR P.O, CHETTUVA, CHAVAKKAD TALUK, THRISSUR DISTRICT. ``` ``` BY ADVS.SRI.SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 SHANAVAS, AGED 28 YEARS, S/O.ABDUL HAMEED, ARAKKAL HOUSE, MUNAKKAKADAVU P.O., KADAPPURAM VILLAGE, CHAVAKKAD, THRISSUR (DRIVER OF THE CAR BEARING REG.NO.KL-46-900).` - `2 ABUBACKKAR A.P. S/O.AHAMMED HAJI, PANIKKAVEETTIL HOUSE, KADAPPURAM P.O. (OWNER OF THE CAR BEARING REG.NO.KL-46-900).` - `3 RELIANCE GENERAL INSURANCE COMPANY LTD OPPOSITE JPT HIGH SCHOOL, T.B.ROAD, OTTAPALAM, POLICY NO.221170234700093 VALID FROM 11/8/2010 TO 10/8/2011.` ``` R3 BY ADV SRI.K.B.RAMANAND ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.09.2022, ALONG WITH MACA.113/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.Nos.109 & 113 of 2014 ``` ``` 2 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` TUESDAY, THE 27[TH] DAY OF SEPTEMBER 2022 / 5TH ASWINA, 1944 MACA NO. 113 OF 2014 ``` ``` AGAINST THE COMMON AWARD DATED 10.07.2013 IN O.P(M.V) ``` ``` NO.860/2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPALAM APPELLANT/PETIITONER: ``` ``` SHAFEER, AGED 22 YEARS S/O.SHAMMSUDHEEN, PANIKKAVEETTIL HOUSE, CHETTUVA, KUNDALIYOOR P.O., CHAVAKKAD, THRISSUR DISTRICT. BY ADVS.SRI.SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1SHANAVAS, AGED 28 YEARS, S/O.ABDUL HAMEED, ARAKKAL HOUSE, MUNAKKAKADAVU P.O., KADAPPURAM VILLAGE, CHAVAKKAD, THRISSUR 680 506 DRIVER OF THE CAR BEARING REG.NO.KL 46-900) 2ABUBACKKAR A.P. S/O.AHAMMED HAJI, PANIKKAVEETTIL HOUSE, KADAPPURAM P.O. 680 506 (OWNER OF THE CAR BEARING REG.NO.KL 46 - 900) 3RELIANCE GENERAL INSURANCE COMPANY LTD. OPPOSITE J P T HIGH SCHOOL, T.B.ROAD, OTTAPALAM 679 101 POLICY NO.221170234700093 VALID FROM 11.08.2010 TO 10.08.2011. R3 BY BY ADV SRI.K.B.RAMANAND ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR`** ``` ADMISSION ON 27.09.2022, ALONG WITH MACA.109/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.Nos.109 & 113 of 2014 ``` ``` 3 ``` ## **`JUDGMENT`** ``` Dated this the 27[th] day of September, 2022 ``` These appeals are originated from a common award passed by Motor Accidents Claims Tribunal, Ottapalam (for short ‘the Tribunal’) on 10.07.2013 in O.P(M.V) Nos.859/2010 and 860/2010. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the above Original Petition. 2. The appellants had sustained injuries in a motor accident occurred at 9.30 pm on 13.08.2010 at Chullippadi, Chettuva in Chettuva-Vatanappally public road. A motor cycle bearing Registration No.KL 46A 4729 ridden by the petitioner in O.P(M.V.) No.860/2010 with the petitioner in O.P(M.V).No.859/2010 as pillion rider was dashed by a car bearing Registration No.KL 46 900 proceeding from the opposite direction, due to the rash and negligent driving by its driver. In the impact both the rider and the pillion rider sustained injuries and were taken to MES T.M. Hospital, ``` M.A.C.A.Nos.109 & 113 of 2014 ``` ``` 4 ``` Chettuva and treated there as inpatient for some days. Alleging that the accident was occurred due to the rash and negligent driving of the car by its driver and claiming Rs.1,25,000/- and Rs.2,00,000/- respectively as compensation, the Original Petitions were filed. 3. The specific contentions raised by the petitioners was that the award passed by the Tribunal suffers for fixation of monthly income notionally at a very lower rate. According to them, the accident being occurred in the year 2010, Rs.7,500/would have been the monthly income fixed on a notional basis. The learned counsel has relied on Ramachandrappa vs. Royal Sundaram Alliance Insurance Co.Ltd. [(2011) 13 SCC 236] to rest his contention. According to the learned counsel the Tribunal failed to award just and reasonable compensation under various other heads also. According to him the monthly income if fixed as Rs.7,500/-, considerable hike would have been there in the quantum of compensation payable under the head permanent disability. Accordingly the learned counsel canvassed for a modification of the quantum of compensation. ``` M.A.C.A.Nos.109 & 113 of 2014 ``` ``` 5 ``` 4. It was contended by the learned counsel for the 3[rd] respondent that just and reasonable sums have been awarded by the Tribunal as compensation under various heads and therefore interference is not at all required. According to the counsel, the appeals are only liable to be dismissed. 5. It is noticed that a common award was passed by the Tribunal in O.P(M.V.) Nos.859/2010 and 860/2010 ordering to pay Rs.59,700/- and Rs.51,700/- respectively as compensation to each of the petitioners. The petitioner in O.P(M.V) No.859/2010 was pillion riding in a motor cycle. He claimed to be aged 17 years at the time of the accident and taking tuition for students. According to him, he was getting Rs.9,000/- per month from conducting tuition classes for children. Petitioner was examined as PW1. In the box he failed to state anything about his job and income. 6. The accident being occurred in the year 2010, this Court finds it reasonable to fix Rs.7,500/- as his monthly income and to reassess the quantum payable for loss of earning and permanent disability on its basis. A description is made ``` M.A.C.A.Nos.109 & 113 of 2014 ``` ``` 6 ``` about the injuries sustained by the petitioner based on the wound certificate and the discharge summary marked in evidence respectively as Exts.A2 and A5. He has sustained pain and tenderness on right knee joint and fracture on L1 vertebrae. He had also pain and tenderness over low back. He was admitted in the hospital for 5 days. Ext.A6 series of medical bills worth Rs.3,345/- are produced and marked in evidence. Though he claimed Rs.20,000/- towards future treatment, he failed to establish by necessary materials that future treatment is required and advised. The Tribunal did not grant any compensation under the head for the reasons. A certificate assessing his permanent disability is marked in evidence as Ext.A10, wherein the Additional Professor of Orthopedics, Government Medical College Hospital, Thrissur has certified 14% permanent disability for him. He was examined as PW2. According to him the petitioner has Grade I Collapse of L1 vertebrae with limitation of flexion and extension movements of lumbar spine. It was clarified by him during cross examination that the fracture is also known as wedge ``` M.A.C.A.Nos.109 & 113 of 2014 7 ``` compression fracture. Since nothing was brought out in cross examination to discredit his version, the Tribunal had relied on his version and the disability certified in Ext.A10 as such. The Tribunal was declined to award any compensation for loss of earning for the reason that the petitioner failed to establish his monthly income. The petitioner claimed to be a tuition teacher earning Rs.9,000/- monthly. In the absence of proof, this Court is inclined to fix his monthly income notionally as Rs.7,500/-. Since the petitioner had sustained fracture on his L1, he must have to be immobilized for about three months and Rs.22,500/-(Rs.7,500/- x 3) is awarded under the head Loss of earning. Under the heads bystander expenses, extra nourishment and transportation, the Tribunal has awarded only Rs.1,000/- each. It being on the lower side and inadequate Rs.1,000/- more under each heads, is awarded. Under the head damages to clothing this Court is inclined to grant Rs.500/- more. Under the head pain and suffering Rs.5,000/more is awarded. Under the head loss of amenities and enjoyments in life the Tribunal failed to award any ``` M.A.C.A.Nos.109 & 113 of 2014 ``` ``` 8 ``` compensation and this Court is inclined to grant Rs.10,000/-. When compensation for permanent disability is re-assessed with the monthly income fixed as Rs.7,500/- and the other factors adopted by the Tribunal maintained Rs.2,26,800/(Rs.7,500/- x 12 x 18 x 14%) is arrived at. Rs.37,800/- stands awarded by the Tribunal when adjusted, the petitioner will get Rs.1,89,000/-as additional compensation. In the above calculation, a sum of Rs.2,30,000/- (Rupees Two lakhs Thirty Thousand only) is payable as additional compensation in M.A.C.A. No. 109/2014. 7. In M.A.C.A.No.113/2014 modification of compensation is sought by the rider of the motorcycle. According to him, he was aged 18 years and working as a painter with monthly income, Rs.9,000/-. But the petitioner failed to enter into the witness box to depose about his job and monthly income. The Tribunal while assessing compensation has taken Rs.3,000/- as his monthly income, which in the view of this Court is too low. The motor accident was occurred in the year 2010 and therefore, this Court finds it appropriate to fix ``` M.A.C.A.Nos.109 & 113 of 2014 ``` ``` 9 ``` Rs.7,500/- as the monthly income. The petitioner had a fracture on right clavicle, and this Court is inclined to take a period of three months for assessment of compensation for loss of earning. Rs.22,500/-(Rs.7,500/-x3) is assessed at as compensation under that head. Rs.3,000/- stands awarded by the Tribunal when adjusted in the sum now arrived at, Rs.19,500/- will be payable as additional compensation. Under the head transportation expenses, extra nourishment and bystander expenses the Tribunal has awarded Rs.1,000/- each. This Court is inclined to modify each of those to Rs.2,000/-, so that the petitioner will get Rs.1,000/- more under each of those heads. Under the head damages to clothing this Court is inclined to award Rs.500/- more. Under the head pain and suffering, this Court is inclined to award Rs.15,000/-and therefore Rs.5,000/- will be payable as additional compensation. The Tribunal discarded the claim of the petitioner for compensation under the head loss of amenities and enjoyments in life. This Court is inclined to award Rs.5,000/- under that head. When compensation for disability ``` M.A.C.A.Nos.109 & 113 of 2014 ``` ``` 10 ``` is reassessed on the basis of the modified monthly income and maintaining the other factors adopted by the Tribunal, Rs.81,000/-(7500x12x18x5%) is arrived at. Rs.32,400/-, stands already awarded by the Tribunal when adjusted in that sum, the petitioner will get Rs.48,600/- as additional compensation. In the reassessment of the compensation as above, the petitioner will get a total sum of Rs.81,600/-(Rupees Eighty one thousand and six hundred only) as additional sum. 8. The additional amount now arrived at will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petitions till the date of realisation. The 3[rd] respondent in each cases shall deposit the compensation now arrived at additionally within a period of two months from the date of receipt of a certified copy of this judgment. The 3[rd] respondent shall also see that the sum stands originally awarded (if not paid) is also deposited within the time granted. Both M.A.C.As stand allowed accordingly. Sd/- **MARY JOSEPH JUDGE** NAB