Mathew v. Ayarakath Hamza and Oriental Assurance Co. Ltd.

# IN THE HIGH COURT OF KERALA AT ERNAKULAM # PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 30[TH] DAY OF JULY 2021 / 8TH SRAVANA, 1943 M.A.C.A. NO. 975 OF 2008 (AGAINST THE JUDGMENT DTD.03.10.2006 IN OP(MV)No.1508/2000 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY, KANNUR) ## APPELLANT/PETITIONER: MATHEW, 48 YEARS, S/O.ABRAHAM, EDAKKAT, NADUVIL AMSOM, KAITHALAM, POST NADUVIL, KANNUR. BY ADVS. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA ## RESPONDENTS/RESPONDENTS: - 1 AYARAKATH HAMZA, S/O.MUHAMMAD, NADUVIL AMSOM, PURANHAN, POST NADUVIL, KANNUR. - 2 M/S. ORIENTL ASSURANCE CO LTD., MARINA SHOPPING COMPLEX, THALIPARAMBA, KANNUR. ## BY ADV SMT.A.SREEKALA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A. No. 975 of 2008 2 ## **C.S.DIAS, J** - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.975 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - Dated : 30[th] July, 2021 ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.1508 of 2000 on the file of the Motor Accidents Claims Tribunal, Thalassery. The respondents in the appeal were the respondents before the Tribunal. 2. The short facts, relevant for the determination of the appeal are; on 13.03.2000, while the appellant was travelling in an auto-rickshaw bearing Registration No:KL13/E-2422 from Arangu to Pulikkurumba, when the vehicle reached Maniyarkolly, the vehicle capsized and the appellant sustained extensive injuries, including a hemorrhage contusion on the left parietal and temporal lobes; right parietal extradural haematoma with depressed fracture of the left parietal bones etc., The appellant was taken to the A.M Hospital and treated as inpatient for a day and, thereafter, referred to the Koyili Hospital, Kannur, M.A.C.A. No. 975 of 2008 3 where he underwent treatment till 26.3.2000. The appellant was a rubber tapper by profession and earning a daily income of Rs.100/-. The accident occurred due to the negligence of the 1[st] respondent, who was the owner-cumdriver of the auto-rickshaw. The 2[nd] respondent was its insurer. Hence the appellant claimed a total compensation of Rs.1,25,000/- from the respondents. 3. The 1[st] respondent did not contest the proceedings and set ex-parte. The 2[nd] respondent filed a written statement admitting that the auto-rickshaw had a valid insurance coverage. It was contended that, the amount of compensation claimed by the appellant was highly excessive and un-reasonable. 4. The appellant examined himself as PW1 and the Doctor who issued the disability certificate as PW2 and marked Exts.A1 to A6 in evidence. The 2[nd] respondent produced the insurance policy, which was marked as Ext.B1 in evidence. ## 5. The Tribunal, after considering the pleadings and M.A.C.A. No. 975 of 2008 4 materials on record, allowed the claim petition in part by permitting the appellant to realise an amount of Rs.99,350/- with interest and costs from the 2[nd] respondent. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/petitioner is in appeal. 7. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the 2[nd] respondent/insurance company. 8. The sole question that emerges for consideration in the appeal is; _(i) Whether the quantum of compensation awarded by the Tribunal is just and reasonable?_ 9. As per Ext.A1-F.I.R. in Crime No.47/2000 Kudiyanmala Police, the accident occurred on account of the negligence of the 1[st] respondent, who drove the autorickshaw in a negligent manner. Admittedly, as per Ext.B1, the auto-rickshaw was insured with the 2[nd] respondent. M.A.C.A. No. 975 of 2008 5 Therefore, the 2[nd] respondent is liable to indemnify the first respondent of his liability. 10. The appellant had claimed that he was a rubber tapper by profession and earning a monthly income of Rs.3,500/-. Nevertheless, the Tribunal fixed the notional income of the appellant at Rs.1,500/- per month. 11. The Hon'ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [ _(2011) 13 SCC 236_ ] has fixed the notional income of a Coolie worker in the year 2004, at Rs.4,500/- per month. ## **Notional Income** 12. Following the ratio in the afore cited decision, I refix the notional income of the appellant at Rs.3,000/- per month. ## **Loss of earnings:** 13. It is on record that the appellant was indisposed for a period of three months. In view of the re-fixation of the notional income of the appellant at Rs.3,000/-, I re-fix M.A.C.A. No. 975 of 2008 6 his loss of earnings at Rs.9,000/- instead of Rs.4,500/awarded by the Tribunal. ## **Disability:** 14. The appellant had produced Ext.A4-disability certificate, which was proved through PW2. As per Ext.A4, the permanent disability of the appellant, as a result of the accident, has been certified at 50%. PW2 has specifically stated that the appellant has 25% weakness of his right half body, inability to walk without support, 50% incoherent speech, diminished eye and 50% diminished higher mental function and will never be able to do any sort of work and he needs assistance for daily personal needs. PW2 was cross examined by the 2[nd] respondent, but nothing was brought out to discredit the testimony of PW2. Nevertheless, the Tribunal after seeing the appellant, who was examined as PW1, fixed his disability at 30%. The course adopted by the Tribunal, especially after the appellant had examined PW2 who proved that the appellant has 50% functional disability as reflected in M.A.C.A. No. 975 of 2008 7 Ext.A4, by scaling down the disability to 30% is erroneous and wrong. 15. In **Rajkumar v. Ajayakumar in [2011 (1) KLT 620 (SC)]** , the Hon'ble Supreme Court has held that the proper course for proving disability is to examine the doctor who was treated and issued the disability certificate or get the disability assessed by a duly constituted Medical Board. 16. In the instant case, the petitioner has produced Ext.A4-disability certificate and got it proved through PW2, who has treated the appellant. 17. In **Union of India and another v. Talwinder Singh** (2012 (5) SCC 480), the Hon'ble Supreme Court has held that the court should not ordinarily interfere with the opinion of the experts. It would always be safe for the courts to leave the decision to the experts, who are more familiar in the problems, rather than expressing its general opinion. 18. In view of the ratio in **Rajkumar and Talwindar** M.A.C.A. No. 975 of 2008 8 **Singh** (supra), and the un-controverted oral testimony of PW2 read with Ext.A4-disability certificate, I am of the definite opinion that the appellant's occupational disability, taking into account that he was a rubber tapper by profession, is to be fixed at 50% as certified in Ext.A4. Accordingly, I re-fix his occupational disability at 50%. ## **Future Prospects:** 19. In **Pappu Deo Yadav v. Naresh Kumar and others (AIR 2020 SC 4424 )** and host of other decisions of the Hon'ble Supreme Court, it is held that, a person who suffers serious permanent disability on account of an accident, is entitled for future prospects. 20. As the appellant was aged 50 years on the date of accident and the relevant multiplier being '13', the future prospects is fixed at 25%. ## **Loss due to disability:** 21. Taking into account the above mentioned factors, namely, the monthly notional income of the appellant at Rs.3,000/-, disability at 50%, the multiplier at '13”, and M.A.C.A. No. 975 of 2008 9 future prospects at 25%, I re-fix the compensation for loss due to disability at Rs.2,92,500/- instead of Rs.59,400/awarded by the Tribunal. ## **Other heads of compensation:** 22. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 23. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the afore cited decisions, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl.<br>No|Heads of claim|Amount awarded<br>by the Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculate<br>d by this<br>Court| |---|---|---|---| |1|Loss of earnings|4,500/-|9,000/-| |2|Expense for transportation|750/-|750/-| |3|Medical expenses|16,885/-|16,885/-| |4|Loss due to disabilities|59,400/-|2,92,500/-| |5|Extra nourishment|1,500/-|1,500/-| M.A.C.A. No. 975 of 2008 10 |6|Expenses for bystander|1,300/-|1,300/-| |---|---|---|---| |7|Compensation for pain and<br>sufferings|15,000/-|15,000/-| ||Total|99,335/-|3,36,935/-| 24. In fact the appellant had filed a claim petition seeking compensation of Rs.1,25,000/-. In view of the law laid down by the Hon'ble Supreme Court in **Nagappa v. Gurudwara Singh** [2003 (1) KLT 115 (SC)], holding that there is no restriction in the courts awarding more compensation and what is claimed in the claim petition because the compensation awarded is just and reasonable compensation, I proceed to award the above said amount as compensation. The same view has been reiterated in . **Rajesh v. Rajbir Singh [2013 (3) KLT 89 (SC)]** In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.2,37,600/(Rupees Two lakh thirty seven thousand six hundred only) with interest at the rate of 6% per annum on the enhanced compensation, from the date of petition till the date of deposit, after deducting the period of 446 days, that is a M.A.C.A. No. 975 of 2008 11 period of delay in filing the appeal and as ordered by this court on 3.12.2019 in C.M.Application No.988/2008 and a cost of Rs.5,000/-. The 2[nd] respondent shall deposit the enhanced compensation awarded in this appeal with interest and costs before the Tribunal, within a period of sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellant in accordance with law. _Sd/-_ **C.S.DIAS, JUDGE** ss