MAJEED HAMEED RAWTHER v. E.O. MATHEW (DELETED) and THE NEW INDIA ASSURANCE CO. LTD.

``` 2025:KER:24147 ``` ``` MACA NO.2908 OF 2015 ``` ``` 1 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` MONDAY, THE 10[TH] DAY OF MARCH 2025 / 19TH PHALGUNA, 1946 ``` ## **`MACA NO. 2908 OF 2015`** ``` AGAINST THE ORDER/JUDGMENT DATED 24.06.2015 IN OPMV NO.321 OF 2009 OF ADDITIONAL DISTRICT COURT-II & IST ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA ``` ## **`APPELLANT/PETITIONER:`** ``` MAJEED HAMEED RAWTHER AGED 49 YEARS ``` ``` S/O.HAMEED RAWTHER, CHAITHRAM HOUSE, NADUVILE MURI CHUNAKARA P.O, CHUNAKARA VILLAGE, MAVELIKARA TALUK. ``` ``` BY ADVS. SRI.R.PADMAKUMAR SRI.P.ARAVIND ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1E.O.MATHEW (DELETED)* AGED 48 YEARS, S/O.ITTIYAVIRA UTHUPPAN, ELAVUMPARAMBIL HOUSE, THIRUVANVANDOOR VILLAGE, CHENGANNUR TALUK, PIN - 689 109. ``` ``` 2THE NEW INDIA ASSURANCE CO. LTD. REPRESENTED BY THE BRANCH MANAGER, KAYAMKULAM BRANCH KAYAMKULAM, PIN - 690502. &#42;(R1 DELETED FROM THE PARTY ARRAY VIDE ORDER DTD 18/2/25 IN IA 1/25 IN MACA 2908/15) ``` ``` BY ADVS. LAL K.JOSEPH ``` ``` 2 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:24147 ``` ``` MACA NO.2908 OF 2015 ``` ## **`SURESH SUKUMAR ANZIL SALIM`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2025:KER:24147 ``` ``` MACA NO.2908 OF 2015 ``` ``` 3 ``` **==> picture [58 x 57] intentionally omitted <==** ## **J U D G M E N T** The petitioner in O.P.(M.V.) No.321/2009 on the file of the Motor Accident Claims Tribunal, Mavelikara, is the appellant herein. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal). 2. The petitioner filed the above O.P. under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 04.03.2008. According to the petitioner, on 04.03.2008 at about 12 p.m., while he was riding motorcycle bearing reg. no.KL 31-7730, a jeep bearing reg.no.KL 4D 660 driven by the 1[st] respondent in a rash and negligent manner, hit against the vehicle on which the petitioner was riding and as a result of the accident, the petitioner sustained serious injuries. 3. The 1[st] respondent is the driver cum owner and the 2[nd] respondent the insurer of the offending vehicle. According to the petitioner, the accident occurred due to the negligence of the driver of the offending vehicle. The quantum of compensation claimed in the O.P. is Rs.16,22,000/limited to Rs.16,00,000/-. ``` MACA NO.2908 OF 2015 ``` ``` 4 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:24147 ``` 4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence on the part of the driver of the offending vehicle. 5. The evidence in the case consists of the oral testimony of PW1 and documentary evidence Exts.A1 to A11 and X1. No evidence was adduced by the respondents. 6. After evaluating the evidence on record, the Tribunal found negligence on the part of the driver of the offending vehicle, awarded a total compensation of Rs.4,30,025/- and directed the insurer to pay the same. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner preferred this appeal. 8. Now the point that arises for consideration is the following: _Whether the quantum of compensation awarded by the_ _Tribunal is just and reasonable?_ 9. Heard Sri.R.Padmakumar, the learned Counsel appearing for the petitioner/appellant, and Sri.Lal K. Joseph, the learned Standing Counsel for the 2[nd] respondent. 10. The Point: In this case the accident as well as valid insurance policy of the offending vehicle are admitted. One of the contentions **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:24147 ``` ``` MACA NO.2908 OF 2015 ``` ``` 5 ``` raised by the learned counsel for the petitioner is regarding the income of the petitioner as fixed by the Tribunal. According to him, the petitioner was working as driver cum mechanic, earning Rs.54000/- per month, but the Tribunal fixed his monthly income at Rs.6000/-. The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable. 11. The petitioner could not prove his income from the employment abroad by adducing adducing reliable evidence. However, he has produced Ext.A10 copy of his passport to convince that he was employed abroad. According to the petitioner, he came from abroad on 1[st] March 2008. Though from Ext.A10 it can be seen that he was working abroad, there is no reliable evidence to prove his income. As per the dictum laid down by the Hon’ble Supreme Court in the decision in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ [2011 (13) SCC 236], the notional income of a coolie, in the year 2008 will come to Rs.6500/-. Ext.A11 is the copy of the driving license of the petitioner which shows that he had valid driving license also during the time of the accident. Since the petitioner could not prove his income from the employment abroad, and it is revealed that he was a driver by profession and he returned from abroad immediately before the accident, I hold that his notional income can be fixed ``` 2025:KER:24147 ``` ``` MACA NO.2908 OF 2015 ``` ``` 6 ``` **==> picture [58 x 57] intentionally omitted <==** as Rs.9000/-, for the purpose of computing the loss of disability. 12. In the accident the petitioner sustained the following injuries: - Crush injury right foot - Fracture on 4[th] metatarsal - Fracture on 5[th] metatarsal - Lacerated wound sole 15cm x 1.5 cm 13. As per Exhibit X1 disability certificate the petitioner suffered 15% permanent physical disability. It was issued by the medical board. The Tribunal, has accepted the permanent physical disability of the petitioner as such and hence, I do not find any grounds to disbelieve the same. At the time of arguments, the learned counsel for the petitioner submitted that the petitioner is present in the Court and requested the court to examine him. On examination, it is seen that his right foot is still in swollen state, he finds difficulty in walking and the injuries sustained in the accident have not healed completely even now. Therefore, the permanent physical disability of the petitioner is accepted as 15%, as fixed by the Tribunal. 14. On the date of accident, the petitioner was aged 43 years. Therefore, 25% of the monthly income is to be added towards future **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:24147 ``` ``` MACA NO.2908 OF 2015 ``` ``` 7 ``` prospects, as held in the decision in **National Insurance Co. Ltd v. Pranay Sethi** [(2017) 16 SCC 680] and the multiplier to be applied is 14, as held in **Sarla Verma v. Delhi Transport Corporation,** [(2009) 6 SCC 121]. In the above circumstances, the loss of disability will come to Rs.2,83,500/-. 15. Towards loss of earning, the tribunal has awarded Rs.54000/-, being the income for 9 months @Rs.6000/-. Since the notional income of the petitioner is re-fixed at Rs.9000/-, towards loss of earning he is entitled to get a sum of Rs.81000/-(9000 x 9 months) 16. Towards the head ‘pain and sufferings’, the Tribunal has awarded Rs.5000/-. Towards 'loss of amenities of life' Rs.15000/- was awarded and towards 'extra nourishment' Rs.5000/- was awarded. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side. 17. The petitioner sustained very serious injuries in the accident and was treated as inpatient for 11 days and had undergone 3 surgeries and even now he is suffering from the above ailments and he finds difficult to walk. Because of the injuries sustained, the percentage of disability suffered ``` MACA NO.2908 OF 2015 ``` ``` 8 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:24147 ``` and the length of treatment undergone by the petitioner, I hold that the compensation awarded by the Tribunal on the heads ‘pain and sufferings’, 'loss of amenities of life' and 'extra nourishment' are on the lower side and hence they are enhanced to Rs.1,50,000/-, Rs.1,00,000/- and Rs.10,000/respectively. 18. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable. 19. Therefore, the petitioner/appellant is entitled to get a total compensation of Rs.7,33,965/-, as modified and recalculated above and given in the table below, for easy reference: |**Sl.**<br>**No.**|**Head of Claim**|**Amount awarded by**<br>**Tribunal (in Rs.)**|**Amount Awarded in**<br>**Appeal (in Rs.)**| |---|---|---|---| |1|Loss of earning|54000|81000| |2|Transport to hospital|2000|2000| |3|Extra nourishment|5000|10000| |4|Damage to clothing|750|750| |5|Medical expense|103915|103915| |6|Bystander expense|2800|2800| |7|Pain and suffering|50000|150000| |8|Continuing or permanent<br>disability|196560|283500| |9|Loss of amenities|15000|100000| ``` MACA NO.2908 OF 2015 ``` ``` 9 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:24147 ``` ||**Total**|**430025**|**733965**| |---|---|---|---| ||Enhanced /Reduced Rs.**303940**||| 20. In the result, this Appeal is allowed in part, and Respondent No.2 is directed to deposit a total sum of Rs.7,33,965/- (Rupees Seven Lakhs Thirty Three Thousand Nine Hundred and Sixty Five only), less the amount already deposited, if any, along with interest at the rate ordered by the Tribunal, from the date of the petition till deposit/realisation, with proportionate costs, within a period of two months from today. (Enhanced compensation will carry interest @8%) 21. On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioner, excluding court fee payable, if any, without delay, as per rules. **Sd/-** **C. PRATHEEP KUMAR, JUDGE** Pvv