Mohammed Harris v. New India Assurance Company Ltd

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 16[TH] DAY OF JANUARY 2024 / 26TH POUSHA, 1945 ``` ## **`MACA NO. 2527 OF 2008`** ``` AGAINST THE AWARD DATED 21.06.2007 IN OP(MV) 1547/2001 OF MOTOR ``` ``` ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA ``` ## **`APPELLANT/CLAIMANT IN OP(MV):`** ``` MOHAMMED HARRIS S/O VEERAN, AGED 42 YEARS, KOMBANEZHATHU HOUSE, MADAVANA .P.O, KODUNGALLORE, TRICHUR DISTRICT. ``` ``` BY ADVS. SRI.P.M.MOHAMMED SHIRAZ SMT.G.R.MANJU ``` ## **`RESPONDENT/RESPONDENTS IN OP(MV):`** ``` *1N.K.MOHAMMED ALI S/O KOCHUMOHAMMED, NALAKATH HOUSE, SANTHI ROAD, VATANAPPILLY, TRICHUR DISTRICT. (DELETED) *RESPONDENT NO 1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF APPELLANT VIDE ORDER DATED 10.12.13 IN IA NO 3224/2013IN MACA NO 2527/2008 ``` ``` *2SHIHAB S/O.BASHEER ARAKKA VEEDU PULIYAM THURUTHY, EDASSERY, TALIKULAM, TRICHUR, DISTRICT.(DELETED) *RESPONDENT 2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT, AS PER ORDER DATED 27.02.2023 IN IA 1/23 IN MACA 2527/08 ``` ``` 3NEW INDIA ASSURANCE COMPANY LTD THRIPRAYAR BRANCH, THRIPRAYAR, TRICHUR DISTRICT, REPRESENTED BY IT'S BRANCH MANAGER. ``` ``` BY ADV SRI.P.K.BABU ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2527 OF 2008 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant was the petitioner in O.P.(M.V.) No. 1547/2001 on the files of the Motor Accident Claims Tribunal, Irinjalakkuda. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 02.06.2001. 2. According to the appellant, the accident occurred when the motorcycle bearing Registration No.KL 8/M 4053, on which he was pillion riding, was hit by a car bearing Registration No.KL 8/P 9367 driven by the 1st respondent. The said vehicle was owned by the 2nd respondent and was insured with the 3rd respondent. According to the appellant, he was working as the Manager of an ice factory with a monthly income of Rs.7,000/-. He was aged 35 years, and according to him, he sustained serious injuries in the accident, which resulted in physical disablement as well. The claim petition was submitted in such circumstances. 3. The 3rd respondent alone contested the matter by filing a written statement wherein they admitted the coverage of policy for the car. However, they disputed the negligence on the part of ``` MACA NO. 2527 OF 2008 ``` ``` 3 ``` the 1st respondent and the quantum of compensation. 4. The evidence in this case consists of Exts.A1 to A9 from the side of the appellant. No evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 1st respondent in driving the car and being the insurer; the 3rd respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.62,500/- and the 3rd respondent was directed to deposit the said amount along with interest @ 6% per annum from the date of petition till realization with proportionate cost. This appeal is submitted in such Circumstances. 5. Heard Sri.P.M. Mohammad Shiraz, learned counsel appearing for the appellant and Sri. P.K. Babu, learned counsel appearing for the 3[rd] respondent. 6. The main dispute in this case relates to the quantum of compensation. According to the learned counsel for the appellant, the amounts awarded by the Tribunal under various heads are meager and no compensation was granted towards loss of income ``` MACA NO. 2527 OF 2008 ``` ``` 4 ``` owing to permanent disablement suffered by the appellant. While this appeal was pending consideration, as per the order passed by this Court on 11.07.2023 in I.A. No.3/2023, the appellant was referred to the Medical Board constituted by the Medical College Hospital, Ernakulam, for assessment of his physical disability. Consequently, an assessment has been made and the said certificate was forwarded to this Court by the Tribunal. The copy of the said certificate is marked as Ext.A10. As per Ext.A10, the Medical Board certified his whole body disability on account of orthopaedic deformities as 10%. 7. In the award, the Tribunal did not award any compensation under the said head due to the lack of convincing evidence showing the physical disability sustained by the appellant. However, in Ext.A10, which is now part of the records of this case, the physical disability of the appellant has been certified by a competent Doctors, and therefore, the percentage of disability as mentioned therein can be accepted. 8. The next aspect to be considered in this regard is the monthly income. The learned counsel for the appellant points out ``` MACA NO. 2527 OF 2008 ``` ``` 5 ``` that, even though a monthly income of Rs.7,000/- was claimed, the Tribunal accepted only Rs.2,000/- which was extremely on the lower side, considering the materials placed on record and the year during which the accident took place. It is to be noted in this regard that, in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236],** the Honourable Supreme Court was pleased to take the monthly income of an ordinary worker even without any skills as Rs.4,500/- for an accident occurred in the year 2004. Here, in this case, the accident occurred in the year 2001. Even though no evidence was adduced to substantiate the same, considering the standards prevailed at the relevant time, Rs.3,500/- could be taken as the monthly income, which appears to be reasonable. As the appellant was 35 years old at the time of the accident, the multiplier applicable is 16. Thus, while assessing the compensation for loss of disability, the amount would come to Rs.67,200/- (3,500 x 12 x 16 x 10/100). 9. Another head which requires reconsideration is compensation for loss of income. The Tribunal awarded only Rs.6,000/- which was calculated @ Rs.2,000/- for a period of three ``` MACA NO. 2527 OF 2008 ``` ``` 6 ``` months. Presumably, the Tribunal was under the impression that the inpatient treatment availed by the appellant was only for a period of four days. However, the appellant produced the original discharge summary along with I.A. No.2/2023 as Annexure A & B issued by the Little Flower Hospital, Angamaly. As the said documents are original, I am inclined to accept the same and the same is marked in evidence as Exts.A11 and A12. From Ext.A12, it can be seen that after he was discharged from West Fort Hospital, Thrissur, where he underwent inpatient treatment for four days, he was admitted to Little Flower Hospital, Angamaly, for further treatment. His admission was on 06.06.2001 and he continued as an inpatient till he was discharged on 02.08.2001 i.e. for a period of 57 days. The Tribunal did not consider the inpatient treatment he availed in Little Flower Hospital, which was for a period of 57 days. The amount for loss of income was calculated only for a period of three months. Besides the same, the aforesaid documents would also indicate that he sustained very serious injuries. As mentioned above, he had availed inpatient treatment for a total period of 61 days in two different hospitals, underwent three surgeries and the ``` MACA NO. 2527 OF 2008 ``` ``` 7 ``` implants were fixed as well. Taking note of the aforesaid aspects, it can be safely concluded that the nature of injuries and the prolonged treatment availed by him both as an inpatient and outpatient must have prevented him from pursuing his employment at least for a period of six months. Therefore, compensation for loss of income has to be calculated for a period of six months. In such circumstances, the additional amount of compensation under this head would come to Rs.15,000/- [(3,500 x6) – 6000]. 10. The learned counsel for the appellant further points out that, despite the fact that he had undergone 61 days of inpatient treatment, the amount awarded towards bystander expenses (hospitalization expenses) was only Rs.400/-. Since I have already found that he had undergone 57 more days of inpatient treatment, compensation for bystander expenses has to be granted @ Rs.100/- per day, and this would come to Rs.5,700/-. Another head highlighted by the learned counsel for the appellant relates to the medical expenses. According to him, as per the medical bills produced as Ext.A9 series, the total amount covered was Rs.62,202.87; the Tribunal awarded only Rs.37,095/-. On going ``` MACA NO. 2527 OF 2008 ``` ``` 8 ``` through the award, it can be seen that no reason for reducing the amount shown in the bills was mentioned. I have carefully gone through the Ext.A9 series of bills. All the said bills are original bills. Even though some of the bills were towards advance amounts made to the hospital, the said amounts were seen subsequently adjusted in the other bills. The consolidated list of medical bills submitted by the appellant along with Ext.A9 series also would indicate that the adjustment of the advance payment made in the bills was taken into account, while calculating to total amount and, therefore, there is no duplication in the amounts claimed. In such circumstances, as the entire bills appear to be genuine, I deem it appropriate to grant the entire amount covered as per the said bills. As mentioned above, the amount covered as per Ext.A9 series bills comes to Rs.62,202.87, which is rounded to Rs.62,203/-. After deducting Rs.37,095/- already awarded by the Tribunal the additional amount would come to Rs.25,108/-. 11. The next head which requires reconsideration is pain and suffering. The amount awarded by the Tribunal under this head was Rs.15,000/-. I have already discussed the injuries sustained ``` MACA NO. 2527 OF 2008 ``` ``` 9 ``` by the appellant and the prolonged treatment which he availed, including three surgeries. As observed above, he availed inpatient treatment for 61 days, and even thereafter, he was completely bedridden for some time consequent to the injuries sustained. Therefore, taking note of the aforesaid aspects, I deem it appropriate to grant a further sum of Rs.20,000/- under the said head. It is also to be noted that, even though the appellant sustained serious injuries and consequential physical disablement, which was certified by the Medical Board as 10%, no compensation was granted towards the loss of amenities. The appellant sustained serious injuries and disablement at the age of 35, and he has to live with that disability throughout his life. Therefore, some amount ought to have been granted towards the loss of amenities. In the facts and circumstances of the case, I deem it appropriate to grant a further sum of Rs.30,000/- under the said head. 12. The learned counsel for the appellant further pointed out that, as the appellant has to undergo surgery again for removal of the implant, he is likely to incur expenses for the same as well. ``` MACA NO. 2527 OF 2008 ``` ``` 10 ``` For the said purpose, he also claims a further sum of Rs.30,000/-. The fact that there were implants fixed is evident from the medical records, and no evidence is needed to understand that, the same has to be removed at some point, which will incur expenses. Even though no documents were produced to show the exact expenses to show the exact expenses that are likely to be incurred for the removal of the implants, Rs.30,000/- claimed by the appellant appears to be reasonable in all respects. Therefore, the said amount can be awarded towards future treatment expenses. 13. The learned counsel for the appellant points out that even though Exts.A6, A7 and A8 taxi trip sheets were produced for a total amount of Rs.1,650/- only Rs.1,000/- is granted by the Tribunal. It is evident from the records that he was initially treated at West Fort Hospital, Thrissur, and later, he was taken to Little Flower Hospital, Angamaly, and after 57 days, he was discharged from there. In such circumstances, I am of the view that the amount claimed by the appellant as per Ext.A6, A7 and A8 are reasonable and the same can be granted. Therefore, after adjusting Rs.1,000/- already awarded by the Tribunal, an additional ``` MACA NO. 2527 OF 2008 ``` ``` 11 ``` amount of Rs.6,50 is granted. No amount is seen awarded towards loss of clothing, and in such circumstances, a sum of Rs.500/- is awarded. Despite the fact he had availed inpatient treatment for 61 days, no amount is seen granted towards extra nourishment. In such circumstances, an amount of Rs.3,000/- is awarded under the said head. Thus, the total additional compensation receivable by the appellant is determined as follows:. |Head|Amount(Rs)| |---|---| |Transportation expenses|650/-| |Loss of earning|15,000/-| |By stander expenses|5,700/-| |Future Medical expenses|30,000/-| |Pain and suffering|20,000/-| |Loss of amenities|30,000/-| |Permanent partial disability|67,200/-| |Medical expenses|25,108/-| |Loss of clothing|5,00/-| |Extra nourishment|3,000/-| |Total|1,97,158/-| In the result, this appeal is allowed. The award dated 21.06.2007 passed by the Motor Accident Claims Tribunal, Irinjalakkuda in O.P.(M.V.) No.1547/2001 is hereby modified by granting an additional compensation of Rs.1,97,158/- (Rupees one lakh ninety seven thousand one hundred and fifty eight only). Out ``` MACA NO. 2527 OF 2008 ``` ``` 12 ``` of the said amount, an amount of Rs.1,67,158/- will carry interest @ 7.5% per annum from the date of petition till realisation whereas Rs.30,000/- awarded towards future medical expenses will carry interest at the same rate from the date of judgment. In addition to that the appellant shall also be entitled to proportionate cost as well. The said amount shall be deposited by the 3[rd] respondent Insurance Company within a period of three months from the date of receipt of a copy of this judgment. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs ``` MACA NO. 2527 OF 2008 ``` ``` 13 ``` ## **`APPENDIX OF MACA 2527/2008`** ``` PETITIONER ANNEXURES EXHIBIT A10DISABILITY CERTIFICATE DATED 24.07.2023 ISSUED BY THE GOVERNMENT MEDICAL COLLEGE HOSPITAL, H.M.T. COLONY P.O., KALAMASSERY, ERNAKULAM IS MARKED AS EXT.A10 ``` ``` EXHIBIT A11CASE SUMMARY & DISCHARGE RECORD DATED 02/08/2001 ISSUED FROM DEPARTMENT OF F.M. SURGERY, LITTLE FLOWER HOSPITAL, ANGAMALY EXHIBIT A12DISCHARGE SUMMARY DATED 02/08/2001 ISSUED BY FACULTY OF SURGERY, LITTLE FLOWER HOSPITAL, ANGAMALY. ```