MACA.No. 271 of 2014 : Nousher.P v The General Secretary Jammat E Islami Hind Kerala, Hifsu Rahman, Royal Sundaram Alliance A.Sons Archade

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 22ND DAY OF NOVEMBER 2017 / 1ST AGRAHAYANA, 1939 MACA.No. 271 of 2014 AGAINST THE AWARD IN OPMV 237/2012 of PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL,KOZHIKODE APPELLANT(S)/PETITIONER NOUSHER.P S/O.MAYIN, RESIDING AT PALAKKUZHIYIL HOUSE, P.O.KUTTIKATTOOR, KOZHIKODE. BY ADV.SRI.AVM.SALAHUDIN RESPONDENT(S)/RESPONDENTS: 1. THE GENERAL SECRETARY JAMMAT E ISLAMI HIND KERALA 5/3520A, HIRA CENTRE, P.O.PUTHIYARA MAVOOR ROAD, KOZHIKODE. 673 004. 2. HIFSU RAHMAN.T S/O.UNEENKUTTY, RESIDING AT THAZHISSERI HOUSE, P.O.VAZHAKKAD, MALAPPURAM. 676 505. 3. ROYAL SUNDARAM ALLIANCE A.SONS ARCHADE, 4TH FLOOR, CHEROOTTY ROAD, KOZHIKODE. 673 001. R1 BY ADV. SMT.DIVYA B.NAIR, ADV. SRI.R.RETHEESH KUMAR AND ADV. SMT.A.MUMTHAZ R3 BY ADV. SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-11-2017,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR, & B. SUDHEENDRA KUMAR, J.** ------------------------------------------------- ## **M.A.C.A. No. 271 of 2014** ------------------------------------------------- Dated this the 22[nd] day of November, 2017 ## **JUDGMENT** ## **Ravikumar,J.** In this appeal by the injured/claimant directed against the award in O.P. MV No. 237 of 2012 on the files of the Motor Accident Claims Tribunal, Kozhikode, the appellant assails the quantum of compensation on the ground of inadequacy. He filed the claim petition under Section 166 of the Motor Vehicles Act, seeking a compensation of Rs. 10 lakhs for the injuries sustained by him in a motor vehicle accident that occurred on 9-9-2011 at about 6.15 a.m. He was then riding his motor cycle from Kuttikattoor to Kovoor. At the place of accident it was hit by the car bearing Registration No.KL11-AD- -2- ## **M.A.C.A. No. 271 of 2014** 1994, driven by the 2[nd] respondent. The appellant had sustained serious injuries and he had remained as an inpatient in MIMS Hospital, Kozhikode in connection with the treatment, for a period of 91 days. As against him claim for Rs. 10,00,000/- as compensation and the Tribunal had granted, as per impugned award, an amount of Rs. 4,60,000/- as compensation with interest at the rate of 8% per annum from the date of petition till realisation. The petitioner seeks enhancement of the said quantum of compensation. 2. We have heard the learned counsel for the appellant and the learned counsel appearing for the 3[rd] respondent Insurance Company. There is no dispute regarding the cause of the accident as also the liability of the 3[rd] respondent to indemnify the first respondent, the owner -3- ## **M.A.C.A. No. 271 of 2014** of the offending vehicle. Hence, we proceed to consider only the question whether the appellant is entitled to get enhancement of compensation. 3. The appellant has grievances against the fixation of monthly income as also against the assessment of permanent disability, by the Tribunal for the purpose of calculating the compensation for loss of earning power. It is submitted by the learned counsel that in the claim petition the petitioner has averred that he was a vegetable merchant and was earning Rs. 10,000/- as monthly income. Ext.A5 is the disability certificate produced by the appellant. Going by the same, he had incurred 52% permanent disability owing to the injuries sustained in the accident. However, for calculating compensation for loss of earning power, the Tribunal had taken the monthly -4- ## **M.A.C.A. No. 271 of 2014** income notionally as Rs. 4,500/- and the extent of permanent disability as 25%. 4. We will firstly consider the question whether the assessment of disability by the Tribunal warrants any interference. In this context, it is to be noted that though the disability was fixed as 25% by the Tribunal for calculating compensation for loss of earning power, the respondents have not filed any appeal raising grievance against the said assessment. As noticed herein before, Ext. A5 is the disability certificate produced by the appellant whereunder the extent of disability of the appellant was assessed as 52%. It is not a disability certificate issued by a duly constituted Medical Board. So also, it was not issued by the doctor who treated the appellant. In fact it was issued by the doctor who examined the appellant and -5- ## **M.A.C.A. No. 271 of 2014** assessed the disability based on the records of treatment. In the contextual situation, it is relevant to refer to the decision of the Apex Court in **Rajkumar v. Ajay Kumar [2011 (1) KLT 620 SC]** . Going by the said decision, if the disability certificate is one issued by a doctor who had only examined the injured and issued the disability certificate after perusing the treatment records, then the mere production of the said certificate is not at all sufficient to establish the factum of disability as also the extent of disability and in the said circumstances, it is incumbent on the part of the injured to get examined the doctor who issued the said certificate to prove the same. In this case, the doctor who issued Ext.A5 disability certificate was not examined. Paragraph 12 of the impugned award would reveal that the petitioner was also not present before the Tribunal. The appellant cannot have any further grievance -6- ## **M.A.C.A. No. 271 of 2014** regarding the assessment of permanent disability as 25% by the Tribunal. As noticed herein-before, the respondents have not challenged the fixation of the disability as 25% by the Tribunal. In the circumstances, we find no reason at all to interfere with the assessment of permanent disability by the Tribunal. 5. Now, we will consider the question whether the fixation of the monthly income notionally by the Tribunal invites interference. True that the accident had occurred in the year 2011, to be precise on 9-9-2011. The Tribunal had taken the monthly income only as Rs. 4,500/-. Under normal circumstances, we would have interfered with the said fixation for the purpose of calculating compensation for loss of earning power or for permanent disability. We have already taken note of the fact that even -7- ## **M.A.C.A. No. 271 of 2014** without seeing the appellant and despite the fact that the doctor who issued Ext.A5 disability certificate was not examined, the Tribunal assessed the permanent disability as 25%. We will now, consider the nature of the injuries sustained by the appellant in the accident. Ext.A2 wound certificate would reveal that he sustained a crush injury with skin loss of the left foot with open fracture of calcaneum, cut flexor tendon to the toes and cut tibial posterior and nerve. When such injuries and their impact were the basis for the assessment of 25% permanent disability without examining the doctor who issued Ext. A5 disability certificate and also without seeing the appellant, we do not think it appropriate to interfere with the fixation of the monthly income. In a Claim Petition filed under Section 166 of the Motor Vehicles Act, in terms of the provisions under Section 168 of the M.V. Act, the appellant is entitled -8- ## **M.A.C.A. No. 271 of 2014** only to get just compensation. Taking into account such aspects, we are of the considered view that since a higher decree of permanent disability under such circumstances mentioned was fixed by the Tribunal herein before, it is only reasonable not to interfere with the fixation of the monthly income and according to us, the compensation granted by the Tribunal towards compensation for loss of earning has to be taken as compensation granted for permanent disability, in view of the absence of proper consideration following the steps prescribed by the Apex Court in Ajay Kumar's Case (supra) for finding out loss of earning power, if any. 6. However, in the peculiar circumstances, we are of the view that monthly income can be re-fixed only for the purpose of granting compensation for loss of earning. -9- ## **M.A.C.A. No. 271 of 2014** We are of the view that it is only proper to fix the same as Rs. 9000/-, taking into account the age of the appellant at the time of the accident as also the year of the accident, for the purpose of granting compensation for loss of earning. Retaining the period fixed therefor, but taking the monthly income as Rs. 9000/- the amount of compensation under the head loss of earning has to be fixed. On such assessment, the appellant is entitled to get an amount of Rs. 25,000/additionally. Taking into account the fact that the appellant had more than one visit to the hospital, we are inclined to grant an amount of Rs.1000/- more towards transportation expenses. The nature of the injuries would suggest that the dresses worn by him must have been spoiled and hence, we are inclined to grant Rs. 500/- more towards damage to clothes. Towards extra nourishment, the Tribunal had granted an amount of Rs.2500/-. The appellant had been an -10- ## **M.A.C.A. No. 271 of 2014** inpatient for 91 days. Taking into account the year of the accident and the economic situation prevalent at the relevant point of time, we are of the view that the rate for granting compensation for extra-nourishment ought to have been Rs. 100/- per day. In that view of the matter, the amount payable thereunder is Rs. 9100/-. After deducting the amount granted by the Tribunal, the appellant is entitled to get an amount of Rs. 6,600/- additionally under that head. It is granted. Towards pain and sufferings and loss of amenities, the Tribunal had granted Rs. 25,000/each. The nature of the injuries, their impact and the period required for recuperation, tend us to hold that it is only reasonable to grant Rs. 5000/- each, additionally under those heads. It is granted. We are of the view that the compensation granted by the Tribunal under other heads are reasonable. -11- ## **M.A.C.A. No. 271 of 2014** 7. In the said circumstances, the appellant is entitled to get an additional of Rs. 45,900/- and it is granted. The said additional compensation will carry interest at the rate of 8% per annum from the date of the petition till realisation. The 3[rd] respondent is directed to deposit the additional compensation along with the interest thereon, within a period of one month from the date of receipt of a copy of this judgment. This appeal stands disposed of as above. There will no order as to costs. **Sd/-C.T. RAVIKUMAR, JUDGE** **Sd/-B. SUDHEENDRA KUMAR, JUDGE** . Ani/ /true copy/ P.S. To Judge