Manaf S/o Kunhabdulla v. Geetha Rameshan and Nasar M and Oriental Insurance Company Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944 ``` ``` MACA NO. 2960 OF 2014 ``` ``` AGAINST THE AWARD DATED 27.02.2013 IN O.P(M.V) NO.664/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, VATAKARA ``` ## **`APPELLANT/PETITIONER:`** ``` MANAF, S/O.KUNHABDULLA, AGED 30 YEARS, ‘ANVAR MANZIL’, P.T.ROAD, VATAKARA AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT BY ADVS.SRI.R.PARTHASARATHY SMT.SEEMA PARTHASARATHY ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1GEETHA RAMESHAN, W/O.RAMESHAN, AGE NOT KNOWN, KOLACHERY, THAVURTH HOUSE, ANCHAMPEEDIKA P.O, KALLISSERY CENTRAL, KANNUR DISTRICT, KANNUR 670 331. 2NASAR.M, S/O.MUTHALIB, AGED 39 YEARS, MADAKKARAKARANTAKATH HOUSE, KALLIASSERY CENTRAL, ANCHAMPEEDIKA P.O, KANNUR DISTRICT 670 001 3M/S.ORIENTAL INSURANCE COMPANY LTD. DIVISIONAL OFFICE NO.1, UNITY COMPLEX, S.N PARK ROAD, KANNUR 670 001 BY ADV R3 BY SMT.A.SREEKALA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.2960 of 2014 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 02[nd] day of March, 2023** This appeal is originated from an award passed by the Motor Accidents Claims Tribunal, Vatakara (for short ‘the Tribunal’) on 27.02.2013 in O.P. (MV) No.664/2009. The appellant is the petitioner before the Tribunal. 2. 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 Original Petition. 3. The petitioner got injured in a motor accident occurred at about 5.30 a.m. on 8.5.2009, at Chorode. As per the averments in the Original Petition filed before the Tribunal while travelling in ``` M.A.C.A.No.2960 of 2014 ``` ``` 3 ``` an autorickshaw from Nadapuram to Vatakara, a Car bearing registration No. KL-13 T 1618 driven by its driver in a rash and negligent manner hit on the back side of the autorikshaw and thereby the petitioner sustained injuries. He was firstly admitted at Asha Hospital Vatakara and was shifted later to Medical College Hospital, Calicut for better management. Alleging that the motor accident was resulted from the rash and negligent driving of the Car by its driver and claiming a total sum of `4,00,000/- as compensation, the above Original Petition was filed before the Tribunal. 4. Notice though issued to all respondents, respondents 1 and 2 did not turn up to contest the original petition and therefore declared as _ex parte_ ``` M.A.C.A.No.2960 of 2014 ``` ``` 4 ``` by the Tribunal. The 3[rd] respondent had filed a written statement and additional written statement wherein it was contended that the driver of the Car was not rash and negligent and responsible for the accident, that the accident was occurred due to the rash and negligent driving of the autorickshaw by its driver, that the autorickshaw was overloaded with four passengers including the petitioner and that the 2[nd] respondent was not holding a driving license and badge at the relevant time of the accident. The compensation claimed is also disputed for its exorbitant nature. The claims regarding the age, occupation and the monthly income were also disputed. 5. Before the Tribunal, evidence was adduced ``` M.A.C.A.No.2960 of 2014 ``` ``` 5 ``` by both parties. On the side of the petitioner, Exts.A1 to A8 were marked. On the side of the 3[rd] respondent Ext.B1 was marked. 3[rd] respondent had also obtained permission from the Tribunal to contest the claim petition by raising all statutory defences. The Tribunal had appreciated the evidence on record and found therefrom that the motor accident was occurred due to the rash and negligent driving of the Car bearing registration No.KL/13 T 1678 by the 2[nd] respondent. The Tribunal also found that in view of the injuries sustained by the petitioner in the motor accident, he is entitled to get compensation from the respondents. `1,97,030/- was arrived at as the compensation payable to the petitioner. The ``` M.A.C.A.No.2960 of 2014 ``` ``` 6 ``` Tribunal directed the 3[rd] respondent, the insurer of the Car to deposit the said sum with interest at the rate of 7.5% per annum from the date of filing of the original petition till the date of realisation. Proportionate cost was also allowed. Aggrieved by the quantum of compensation arrived at by the Tribunal, the petitioner has approached this Court in the appeal on hand. 6. Sri. Parthasarathy, the learned counsel for the appellant contended that against the claim of the petitioner that he was earning `7,500/monthly, the Tribunal fixed `3,000/- as his monthly income. According to him, evidence was not adduced by the petitioner to establish his job and monthly income as averred in the Original Petition. ``` M.A.C.A.No.2960 of 2014 ``` ``` 7 ``` According to him, the motor accident being occurred in the year 2009, the Tribunal ought to have fixed a higher sum as his monthly income and compensation calculated for loss of earning and disability, on its basis. 7. The learned counsel further pointed out that compensation stood awarded towards extra nourishment, damages to clothing, transportation expenses and bystander expenses are also inadequate. This Court’s attention was also drawn to the injuries sustained by the petitioner in the motor accident and contended that though the injuries caused were serious, the Tribunal granted only `12,000/- as compensation towards pain and suffering and `8,000/-, towards loss of amenities ``` M.A.C.A.No.2960 of 2014 ``` ``` 8 ``` and enjoyments in life. According to him, the Medical Board has assessed 61.93% as the permanent disability of the petitioner after examining him. But the Tribunal took only 21% while calculating compensation for disability. According to the learned counsel, the percentage of disability taken by the Tribunal is too low and unsupported by any reasoning. Therefore, he seeks for interference of this Court. 8. The learned counsel for the 3[rd] respondent has contended on the contrary that the compensation stood awarded by the Tribunal under various heads being just and reasonable, interference is totally uncalled for. According to her, since evidence of any nature was not let in by ``` M.A.C.A.No.2960 of 2014 ``` ``` 9 ``` the petitioner to establish his job and monthly income, the Tribunal was constrained to fix it on a notional basis. According to her, the Tribunal is justified for doing so and absolutely no basis is there to support the claim of the petitioner for it’s re-fixation. The learned counsel for the 3[rd] respondent pointed out further that the multiplier adopted by the Tribunal for the purpose of assessment of compensation for disability is not in accordance with the age of the petitioner. According to her, the petitioner was aged 30 years and the Tribunal is justified in adopting 17 as the multiplier instead of 18. Thus, interference with the impugned award on that count is also sought by the learned counsel. ``` M.A.C.A.No.2960 of 2014 ``` ``` 10 ``` 9. The accident being occurred in the year 2009, having due regard to the cost of living and price index prevalent then, this Court finds it reasonable to consider `7,000/-. 10. It is revealed from Exts.A2, A3, A4 and A5, the accident register cum wound certificate, the reference card, the referral OP ticket and the discharge summary issued from Asha Hospital, Vatakara as well as Medical College Hospital, Kozhikode that the petitioner had sustained fracture of shaft of femur and both superior and inferior pubic rami. He had availed treatment from two different hospitals and open reduction and internal fixation with was done as interlocking nailing procedures for correction. He was treated for 21 ``` M.A.C.A.No.2960 of 2014 ``` ``` 11 ``` days during the first spell of hospitalization and for 6 more days during the second spell of hospitalization. Thus he was inpatient for 27 days. Though medical documents are available in evidence as above, Tribunal awarded only a lumpsum as compensation for loss of earning. `10,000/- was the sum stood awarded by the Tribunal. It is noticed from Ext.A5 that the fracture started union on 16.06.2009 and it was reported as united on 11.09.2011 during hospitalization. Therefore, the petitioner may not be able to attend his job for a long period and this Court finds every justification in considering 10 month's period. When compensation is calculated on the basis of the modified monthly income and the period, ``` M.A.C.A.No.2960 of 2014 ``` ``` 12 ``` `70,000/- (`7,000/- x 10) is arrived at. `10,000/stood awarded by the Tribunal when adjusted against, the petitioner will get `60,000/- (`70,000/- - `10,000/-) as additional compensation under that head. 11. As compensation towards transportation expenses, relying on Ext.A7 series, the Tribunal awarded `9,600/- as compensation. The said sum being reasonable, is maintained. Towards bystander expenses, `5,400/- stood awarded by the Tribunal being low, this Court enhances it to `6,000/-. Therefore, the petitioner will get `600/as additional compensation. Towards extra nourishment, this Court finds it reasonable to grant `200/- per day and when calculated for 27 days, ``` M.A.C.A.No.2960 of 2014 ``` ``` 13 ``` `5,400/- is arrived at. `2,700/- stood awarded by the Tribunal when adjusted against, petitioner will get `2,700/- as additional compensation. Towards damages to clothing, `500/- being the sum stood awarded by the Tribunal, `500/- more is granted. 12. Towards pain and suffering and loss of amenities and enjoyments in life, sums already awarded by the Tribunal being inadequate, this Court enhances those to `50,000/- and `20,000/respectively. `12,000/- and `8,000/- stood awarded by the Tribunal under those heads when adjusted against the sums now arrived at, petitioner will get `38,000/- and `12,000/respectively as additional compensation. 13. Medical Board had examined the ``` M.A.C.A.No.2960 of 2014 ``` ``` 14 ``` petitioner and issued Ext.A8. The medical board has certified the disability of the petitioner as temporary since the implants laid at the fracture site were not removed. Cogent reasons are also not found stated in Ext.A8. Therefore, this Court finds every reason to maintain 21% considered by the Tribunal for the purpose of assessment of compensation. 14. As rightly pointed out by the learned counsel for the 3[rd] respondent the multiplier adopted is not in tune with the age of the petitioner. Petitioner was aged 30 years as on date of accident and therefore 17 is the multiplier applicable in view of **Sarla Verma & Ors. v. Delhi Transport Corporation & Anr.** [2010 (2) KLT 802 ``` M.A.C.A.No.2960 of 2014 ``` ``` 15 ``` (SC)]. A re-assessment of compensation for disability is undoubtedly warranted in view of the modified factors. When compensation is reassessed on the basis of the modified factors, a sum of `2,99,880/- (`7,000/- x 12 x 17 x 21/100) is arrived at. `1,36,080/- stood awarded by the Tribunal when adjusted against, petitioner will get `1,63,800/- as additional compensation. 15. In the reassessment as above, the petitioner will get `2,77,600/- (`60,000/- + `600/+ `2,700/- + `500/- + `38,000/- + `12,000/- + `1,63,800/-) (Rupees Two Lakhs Seventy Seven Thousand and Six Hundred only) as total additional compensation, which will also carry interest at the rate of 7.5% per annum from the date of the filing ``` M.A.C.A.No.2960 of 2014 ``` ``` 16 ``` of the Original Petition till the date of realisation. The 3[rd] respondent being the insurer of the offending vehicle shall pay the above sum with interest fixed as above within a period of two months from the date on which a certified copy of this judgment is received. 16. This court vide order passed on 04.10.2021 in C.M.Application No.02/2014 has exonerated the 3[rd] respondent from paying interest for 359 days of delay occurred in filing the appeal on hand. Therefore, the 3[rd] respondent is exonerated from paying interest for the period. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** NAB