Mehroof v. Haneefa and Kunhinarayanan and The National Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 5TH DAY OF FEBRUARY 2016/16TH MAGHA, 1937 MACA.No. 706 of 2011 --------------------[AGAINST THE AWARD IN OPMV 519/2006 of M.A.C.T., MANJERI DATED 30-11-2010] APPELLANT(S)/PETITIIONER: ------------------------ MEHROOF,19 YEARS,S/O.SAIDALAVI, VADAKKALATHIL HOUSE,KACHINIKAD PO, MAKKARAPARAMBA, MALAPPURAM DISTRICT. BY ADVS.SRI.K.VIDYASAGAR SRI.K.M.MOHAMED ABDURAHIMAN RESPONDENTS(S)/RESONDENTS: ------------------------- 1. HANEEFA,S/O.KUTTIALI.P, PARAPPURATH HOUSE,PO PERINTHATTIRI, MALAPPURAM DISTRICT 676 507. 2. K.V.KUNHINARAYANAN,S/O.V.GOVINDAN, KIZHAKKILOTTIL VEETTIL HOUSE,PEROOL, MATHAMANGALAM PO,KANNUR DISTRICT 670 306. 3. THE NATIONAL INSURANCE CO.LTD., REGISTERED OFFICE,3 MEDICTION STREET POST BOX NO.9229,KOLKOTA BRANCH OFFICE,CHENNAI,600 001. R1 to R3 BY ADV. SRI.LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## C.T.Ravikumar & Mary Joseph, JJ. ---------------------------------------------------M.A.C.A.No. 706 of 2011 ---------------------------------------------------Dated this the 5[th] day of February, 2016. ## JUDGMENT ## Mary Joseph,J: The injured in a motor vehicle accident occurred on 28.10.2005 at Kachinikkad bazar in Malappuram District has approached this Court seeking for enhancement of the compensation. 2. The appellant sustained injuries at about 8.45 a.m. on 28.10.2005 when a bus bearing Regn.No.KL-13 J 1800 driven by the first respondent in a rash and negligent manner knocked him down, while he was waiting for bus in Kachinikkad Bazar in Malappuram District. He was rushed to Moulana Hospital, Perinthalmanna and the treatment there continued for about 57 days. Preferring the claim petition before the Motor Accidents Claims Tribunal, Manjeri (for short 'the Tribunal') as O.P.(MV) No.519/2006, the appellant urged to grant him `8,00,000/- as compensation. 3. The Tribunal after appreciating the oral evidence of the MACA NO.706 OF 2011 -:2:- appellant as PW1 and Exts.A1 to A6 series and Ext.X1, was pleased to pass an award for `4,58,961/- with interest at the rate of 9% per annum from the date of the petition till the date of realisation in favour of the appellant. Aggrieved by the amount of compensation awarded by the Tribunal, the appellant has approached this Court seeking enhancement. 4. Sri.K.M.M.Abdurahiman Thoppil, the learned counsel for the appellant and Sri.Lal George, the learned Standing Counsel for the third respondent were heard. 5. The specific contention put forth by the learned counsel for the appellant was that the Tribunal was unjustified in taking the monthly income of the appellant as `3000/-. It is contended by the learned counsel that the claim of the appellant before the Tribunal was that he was a mazon and was getting a monthly wages of `6500/-. According to him, the appellant was an able bodied young man and being a mazon, the Tribunal ought to have taken `6500/- as his monthly income for the purpose of calculating the compensation for loss of earning and multiplicand for the purpose of assessing the compensation for permanent disability. The second contention put forth was that the Tribunal MACA NO.706 OF 2011 ## -:3:- has erred in arriving at meagre sums as compensation under various heads of claim of the petitioner. Yet another contention put forth was that despite production of materials in evidence disclosing the serious injuries suffered by the appellant in the motor vehicle accident and the extensive treatment undergone by him as inpatient at Moulana Hospital, Perinthalmanna, the Tribunal failed to appreciate those in its proper perspective while arriving at the compensation. According to him, if the evidence on record was appreciated by the Tribunal in a proper manner, it ought to have taken loss of earning for a period of one and a half year instead of six months. Lastly and finally, it is contented by the learned counsel that the Tribunal is highly unjustified in fixing the compensation under the heads permanent disability and loss of earning power on the lower side and this Court's interference is warranted in the matter. 6. Per contra, the learned counsel appearing for the third respondent has contended that the Tribunal is perfectly justified in passing the impugned award. According to the learned counsel, the Tribunal has considered all materials brought forth by the appellant in evidence and compensation has been arrived MACA NO.706 OF 2011 -:4:- at on its basis. According to him, interference of any nature is unwarranted in the matter. 7. We have gone through the impugned award and found that the Tribunal has granted `18,000/- as compensation towards loss of earning against a claim by the appellant for `32,500/-, `3,24,571/- towards compensation for dependency against a claim of `3,50,000/-, `4900/- towards bystander expenses against nil claim, `1000/- towards transportation expenses against nil claim, `1000/- towards extra nourishment against a claim for `25,000/-, `250/- towards damages to clothing against nil claim, `25,000/- towards pain and suffering against a claim of `1,00,000/- and `84,240/- towards permanent disability against a claim for `2,00,000/-. Thus, a total sum of `4,58,961/- was awarded by the Tribunal as compensation to the appellant. 8. The claim of the appellant was that he was a mazon aged 19 years at the time of accident and was earning `6500/- as monthly income. But, he failed to adduce any evidence before the Tribunal in that respect. The Tribunal has observed in the impugned award on the basis of the averments of the appellant in the claim petition that he had no permanent job and on its basis MACA NO.706 OF 2011 -:5:- that notional income was fixed as the monthly income of the appellant. But, the Tribunal is highly unjustified in taking `3000/as the notional income. The accident was of the year 2005. The Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.** [2011(13)SCC 236] considered `4500/as monthly income of a coolie met with an accident in the year 2004. Even if it is taken for granted that the appellant is a mazon, it cannot be said with precision that he will have job for all 30 days in a month. Therefore, we are of the considered opinion that the dictum of Ramachandrappa's case (supra) cannot be applied in the case on hand. The appellant being of the age of 19 years and in the absence of proof regarding income, `4000/- would be a reasonable sum to be taken as his monthly income for the purpose of calculation of compensation. The Tribunal has taken a period of six months for reckoning compensation for loss of earning. The medical evidence on record indicate that the appellant underwent inpatient treatment for a total period of 57 days and had also undergone rest for a further period. The Tribunal has taken into account all those aspects while fixing loss of earning for six months. But, while computing compensation by MACA NO.706 OF 2011 -:6:- taking monthly income as `4000/-, the appellant would be entitled for a hike of `6000/- under the head loss of earning. 9. Learned counsel for the appellant has canvassed for an enhancement of compensation under the head 'medical expenses'. Going by the impugned award, it is seen that the Tribunal has considered the entire amount as per Ext.A6 series and awarded `3,24,571/- as compensation under the said head. Therefore, the appellant's claim for hike of compensation in that respect is declined. 10. With regard to the challenge of the learned counsel for the appellant regarding the compensation awarded towards bystander expenses, we have noticed that the Tribunal has awarded `4900/- by taking `100/- per day for 49 days of inpatient treatment. We have already found from the medical documents available in evidence that the appellant had undergone inpatient treatment for 57 days. The accident being in the year 2005, `100/- taken by the Tribunal for bystander expenses per day seems to us on the lower side. In the said circumstances, we are inclined to assess the compensation for disability by considering `250/- per day for 57 days. Reckoned in the way, the appellant MACA NO.706 OF 2011 -:7:- would be entitled to get a sum of `9350/-, over and above `4900/awarded by the Tribunal (`14,250/- (-) `4900/-). 11. We see substance in the challenge made by the appellant regarding the compensation awarded under the head extra-nourishment. `1000/- is the sum awarded under that head which is undoubtedly on the lower side. In view of the discussion hereinabove made, we feel that the appellant's grievance could be redressed if `200/- per day is considered. Reckoned in the way, the appellant would get an additional sum of `10,400/- under that head. 12. Under the head damages to clothing, the Tribunal has awarded only a sum of `250/-, which we are inclined to fix as `1000/-. Therefore, the appellant would get an additional sum of `750/- under the head. Towards transportation expenses, the Tribunal has awarded only `1000/- which when viewed in the light of the duration of treatment and the distance between the residence of the appellant and the place where the hospital is situated is inadequate. Therefore, we are inclined to consider `5000/- and accordingly, the appellant would get an additional sum of `4000/- under that head. Towards pain and suffering, the MACA NO.706 OF 2011 -:8:- Tribunal has awarded only a sum of `25,000/- against the claim of `1,00,000/-. The Tribunal has described the injuries sustained by the appellant in the impugned award on the basis of Ext.A2, the Accident Register-cum-Wound Certificate. The injuries are blunt trauma on the abdomen with haemoperitoneum, fracture of ribs left 2[nd] to 9[th] with a flail segment, fracture dislocation right S1 joint, fracture both rami bilaterally, deglowing (closed) right thigh, perineal laceration extending to radium and right L4, L5, S1, nerve root palsy. It is also evidenced that the petitioner had undergone haemo dynamic resuscitation, mechanical ventilation, pelvic external fixation, ribs elevation, open reduction and plate fixation for right sacro illiac joint, wound debridement and skin grafting. It is also evidenced that the appellant had undergone laparotomy and colonoscopy and was inpatient for 57 days. There were further follow-ups as out-patient. Therefore, the amount of `25,000/- awarded by the Tribunal under the head pain and suffering is undoubtedly on the lower side. Therefore, we are inclined to refix the compensation as `50,000/- and thereby, the appellant would get an additional sum of `25,000/- under that head. We feel it appropriate in the circumstances to award MACA NO.706 OF 2011 -:9:- `25,000/- towards discomforts and inconveniences caused to the appellant. Ext.X1 is the certificate issued by the Medical Board, which was marked in evidence by the appellant in proof of his permanent disability. It is seen from the impugned award that the Medical Board has assessed the permanent partial disability as 13%. The Tribunal has taken the entire percentage of disability assessed by the Medical Board for the purpose of computation of compensation. The Tribunal has applied 18 as the multiplier which in view of the dictum in **Sarla Verma** v. **Delhi Transport Corporation [** 2010(2) KLT 802 (SC)] is the correct one. We have already fixed the monthly income of the appellant as `4000/-. If `4000/- is taken as the multiplicand, definitely there would be a hike of `1,12,320/- in the compensation payable under the head disability. Accordingly, the appellant would get an additional sum of `28,080/- under that head. 13. The manner in which the enhanced compensation is arrived at by us in this appeal is reproduced in the table hereunder. MACA NO.706 OF 2011 -:10:- |Sl.No.|Head of claim|Amt.awarded<br>(`)|Total Amt.<br>Awarded by<br>this Court (`)|Addl.Amt.awar<br>ded by this<br>Court (`)| |---|---|---|---|---| |1|Loss of earning<br>(total)|18,000/-|24,000/-|6,000/-| |2|Medical<br>and<br>Miscellaneous<br>expenses|3,24,571/-|3,24,571/-|-----| |3|Bystander<br>expenses|4,900/-|14,250/-|9,350/-| |4|Transportation<br>expenses|1,000/-|5,000/-|4,000/-| |5|Extra<br>nourishment|1,000/-|11,400/-|10,400/-| |6|Damage<br>to<br>clothing|250/-|1,000/-|750/-| |7|Pain & suffering|25,000/-|50,000/-|25,000/-| |8|Permanent<br>Disability|84,240/-|1,12,320/-|28,080/-| |9|Discomforts &<br>inconveniences|----|25,000/-|25,000/-| |||4,58,961/-|5,67,541/-|1,08,580/-| In the result, this appeal is allowed in part and the appellant would be entitled to get a total sum of `1,08,580/- in addition as compensation. The said amount would carry interest @ 8% per annum from the date of petition till realisation. The third respondent/insurer is directed to deposit the sum within three months from the date of receipt of a copy of this judgment. In case of any default by the third respondent in paying the MACA NO.706 OF 2011 -:11:- amount as directed, the appellant would be entitled to get interest at the rate of 9% per annum, for the entire sum remaining unpaid. The parties shall bear their respective costs. sd/- C.T.Ravikumar, Judge. sd/- Mary Joseph, Judge. MBS/ -true copy- P.S.TO JUDGE. MACA NO.706 OF 2011 -:12:-