High Court of KeralaSingle Judge2022-08-03Appeal allowed; enhanced compensation and depos...

Mohammed Ashraf v. Abdulla Kunhi A.M. and Prabhakaran and The Branch Manager, National Insurance Company

Case / Petition Number:MACA No. 2706 of 2012

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Badharudeen
Judgment Date: 2022-08-03
Court Decision / Holding: This appeal is allowed. The appellant is entitled to Rs.3,89,230 as total compensation, with Rs.2,38,390 already granted by the Tribunal and the balance Rs.1,50,840 enhanced, at the same rate of interest from the petition date, payable by the 3rd respondent within two months. On deposit, the appellant is entitled to release of the enhanced amount.
Final Disposition: Appeal allowed; enhanced compensation and deposit within two months.

Parties to the Case

Appellants / Petitioners

Mohammed Ashraf, S/O Abdul Hameed Moulavi P.M., Podipallam, Balkies Manzil, Chengala Village, Kasaragod Taluk

Respondents

Abdulla Kunhi A.M., S/o. Aboobacker A.M, Mooladakam House, Mulliyar Village and Post, Kasaragod Taluk-671542
Prabhakaran, S/o. Kamala House No.7/295, Kadeangad House, Karadka Panchath, Adhar Post, Kasaragod-671543
The Branch Manager, National Insurance Company, 3rd Floor, High Lane Plaza, M.G Road, Kasaragod-671121

Legal Representation & Advocates

Counsels for Petitioners

• Sri P.K. Muhammed

Counsels for Respondents

• Sri P.K. Manojkumar

Case Synopsis & Summary

Mohammed Ashraf v. Abdulla Kunhi A.M. and Prabhakaran and The Branch Manager, National Insurance Company is a Kerala High Court MACA challenging the Motor Accidents Claims Tribunal, Kasaragod award under Section 166 of the Motor Vehicles Act for injuries sustained in a road traffic accident on 26 December 2008. The appellant, who sustained a compound fracture of both bones of the left leg and other injuries, appealed the Tribunal’s award of Rs. 2,38,390, arguing that the Tribunal undervalued his income, underassessed his disability, and failed to compensate adequately under heads such as loss of earnings, loss of amenities, pain and suffering, and future rehabilitation. The insurer/ respondents contended that the Tribunal’s findings were correct: it fixed the claimant’s monthly income at a figure consistent with the Ramachandrappa ratio and concluded a 14% whole-body disability from a 28% limb disability, with Ext.X1 supporting the limb disability. The High Court, after hearing, allowed the appeal in part, adopting Rs. 4,500 as monthly income in line with Ramachandrappa, and re-evaluating disability; it increased awards under multiple heads and directed an enhanced total of Rs. 3,89,230, with Rs. 2,38,390 already granted by the Tribunal. The insurer is to pay the balance Rs. 1,50,840 within two months, with interest to continue until realization.

Provisions of Law Cited

Section 166 of the Motor Vehicles ActSection 173 of the Motor Vehicles Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant’s counsel contends that the Tribunal erred in underestimating both the appellant’s monthly income and the degree of disability. He submits that the monthly income should be Rs.4,500 as claimed, and that the medical board’s 28% left-limb disability should be reflected in the overall disability, or at least that components such as loss of earnings, loss of amenities, and pain and suffering be enhanced in light of the injuries and prolonged treatment described in Exts A3–A5. The appellant argues for compensation to reflect the extended period of treatment, delayed union of fractures, rehabilitation, and loss of amenities, with corresponding increases across heads.

Contentions of Respondents

The insurer counters that the monthly income can be set at Rs.4,500 as per Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. (2011) 13 SCC 236, and that the disability fixed by the Tribunal—14% whole-body disability on a 28% limb disability—was proper. It relies on Ext.X1 to support 28% limb disability and argues the evidence does not justify a higher whole-body disability; it maintains that the Tribunal’s quantum under various heads is appropriate.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.	(2011) 13 SCC 236	Positive	The High Court cites and applies the ratio in Ramachandrappa to fix the monthly income at Rs.4,500 for calculating compensation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 3[RD] DAY OF AUGUST 2022 / 12TH SRAVANA, 1944** **MACA NO. 2706 OF 2012** **AGAINST THE AWARD DATED 28.07.2012 IN O.P(MV) No.686/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD APPELLANT/PETITIONER:** MOHAMMED ASHRAF, S/O.ABDUL HAMEED MOULAVI P.M., PODIPALLAM, BALKIES MANZIL, CHENGALA VILLAGE, KASARAGOD TALUK. BY ADV. SRI.P.K.MUHAMMED ## **RESPONDENTS/RESPONDENTS:** 1 ABDULLA KUNHI A.M., S/O.ABOOBACKER A.M, MOOLADAKAM HOUSE, MULLIYAR VILLAGE AND POST, KASARGOD TALUK-671 542. 2 PRABHAKARAN, S/O.KAMALA HOUSE NO.7/295, KADEANGAD HOUSE, KARADKA PANCHATH, ADHAR POST,KASARAGOD-671 543. 3 THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY, 3RD FLOOR, HIGH LANE PLAZA, M.G ROAD, KASARAGOD-671 121. BY ADV. SRI.P.K.MANOJKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING FINALLY HEARD ON 03.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.2706 of 2012** 2 ## **JUDGMENT** This is an appeal filed under Section 173 of the Motor Vehicles Act, challenging award dated 28.07.2012 in O.P.(M.V) No.686/2009 on the file of the Motor Accidents Claims Tribunal, Kasaragod, at the instance of the petitioner. The respondents before the Tribunal are the respondents herein also. 2. Heard the learned counsel for the appellant as well as the learned Standing Counsel appearing for the Insurance Company. 3. Brief facts of the case: In this case, the appellant alleged to have met with an accident on 26.12.2008 at about 11:30 a.m, while he was proceeding towards New Bus stand and reached near the road divider in front of C-DIT institution, Kasaragod, is the original petitioner before the Tribunal. It is alleged by the appellant 3 ## **M.A.C.A No.2706 of 2012** that a motorcycle bearing registration No.KL14G-5218, driven by the 1[st] respondent, hit the appellant and he sustained serious injuries. 2[nd] respondent is the owner and 3[rd] respondent is the insurer of the vehicle. On the above facts, an application under Section 166 of the Motor Vehicles Act was preferred by the appellant before the M.A.C.T, Kasaragod claiming compensation to the tune of Rs.5,00,000/- from respondents 1 to 3. 4. The 1[st] and 2[nd] respondents were set ex- parte by the Tribunal. **==> picture [375 x 14] intentionally omitted <==** statement disputing the negligence as well as quantum of compensation. **==> picture [375 x 10] intentionally omitted <==** the side of the appellant. Ext.B1 marked on the side of the Insurance Company. Ext.X1 disability certificate also marked. 7. The Tribunal appraised the evidence and finally granted Rs.2,38,390/as 4 ## **M.A.C.A No.2706 of 2012** compensation along with 8% interest. 8. It is submitted by the learned counsel for the appellant that the Tribunal fixed a lower amount as the monthly income of the appellant and also reduced the disability assessed by the medical board as 28% to 14%, without justification. According to him, no amount granted towards 'loss of amenities' and the amount granted towards 'pain and sufferings' also is on lower side. Therefore, increase under the above heads is necessary. 9. The learned counsel for the insurer would submit that though the monthly income can be fixed at Rs.4,500/- as claimed, following the ratio in _**Ramachandrappa v.**_ _**Manager, Royal Sundaram Alliance Insurance**_ _**Company Ltd.**_ : **(2011) 13 SCC 236,** the disability fixed by the Tribunal cannot be enhanced. It is pointed out by the insurer that as per Ext.X1 disability certificate, the ## **M.A.C.A No.2706 of 2012** 5 medical board certified 28% disability to the appellant in relation to his left left lower limb. Since the 28% disability is limb disability, the Tribunal is justified in fixing 14% as the whole body disability to assess the compensation. **==> picture [375 x 13] intentionally omitted <==** contentions, perusal of the treatment records of the appellant to see injuries and consequential treatment, is necessary. Ext.A4 is the discharge summary issued from Carewell hospital, Kasaragod. As per Ext.A4, compound fracture both leg and treatment by closed interlocking nailing could be gathered. Treatment initially was for a period of 20 days from 20.12.2008 to 17.01.2009. Ext.A3 is the copy of wound certificate showing both bone fracture. Ext.A5 is discharge summary issued from Thejasvini hospital, Mangalore. As per Ext.A5, the appellant was treated there for a period of 13 days from 01.04.2009 and **M.A.C.A No.2706 of 2012** 6 13.04.2009 with diagnosis that delayed union of fracture both bone left leg with IMIL nail INSITU-3 months. History of injuries stated as road traffic accident before three months and treatment by way of IMIL nailing. In the disability certificate it is stated that the appellant has got limitation range of motion right hip and knee, and the same affected stability of left lower limb. Thus, 28% disability was assessed in relation to left lower limb. Considering the delayed union of both bone fractures, IMIL nailing etc, I am inclined to fix the disability to 20% instead of 14% accepted by the Tribunal. 11. In this case, the Tribunal granted 'loss of earnings' for a period of 4 months @ 3,500/-. Considering the prolonged treatment, I am inclined to increase the 'loss of earnings' for a period of 6 months @ 4,500/per month and the same would come to Rs.27,000/-(4,500x6). Out of which Rs.14,000/- ## **M.A.C.A No.2706 of 2012** 7 was granted by the Tribunal. Therefore, **Rs.13,000/-** more is granted under the head 'loss of earnings'. **==> picture [375 x 12] intentionally omitted <==** Tribunal is not in dispute. Therefore, disability income required to be re-calculated as under, **==> picture [298 x 13] intentionally omitted <==** Out of which, Rs.88,560/- was granted by the Tribunal. Thus, the appellant is entitled to the balance of **Rs.1,05,840/-** more under the head of 'loss of disability income'. **==> picture [375 x 13] intentionally omitted <==** appellant sustained both bone fracture and he was subjected to multiple injuries, the Tribunal granted Rs.15,000/- alone under the head 'pain and sufferings'. Therefore, I am inclined to grant **Rs.10,000/-** more under the head 'pain and sufferings'. Coming to 'loss of amenities' also, no amount was granted by the Tribunal **M.A.C.A No.2706 of 2012** 8 and, therefore, the learned counsel for the appellant pressed for granting compensation under the head 'loss of amenities' also. Considering the injuries and treatment, I am inclined to grant **Rs.15,000/-** under the head 'loss of amenities'. Towards 'extra nourishment', the Tribunal granted Rs.3,000/-. Considering the injuries and treatment, I am inclined to grant **Rs.7,000/-** more under the head 'extra nourishment'. 14. In the result, this appeal is allowed. It is ordered that the appellant is entitled to get Rs.3,89,230/- as total compensation, out of which Rs.2,38,390/- was granted by the Tribunal and the balance amount of **Rs.1,50,840/-** (Rupees One Lakh Fifty Thousand and Eight Hundred Forty Only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the 3[rd] respondent from the date of petition ## **M.A.C.A No.2706 of 2012** **==> picture [7 x 9] intentionally omitted <==** till the date of deposit or realisation. The 3[rd] respondent is directed to deposit the same in the name of the appellant within two months. On deposit, the appellant is entitled to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww