Muhammed Fahad N.T. v. K.P. Hareendran, P. Sandeep and The United India Insurance Company Limited

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR &** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 11TH DAY OF JULY 2016/20TH ASHADHA, 1938** **MACA.No. 1859 of 2012 () -------------------------** **AGAINST THE AWARD IN OPMV 1374/2006 of M.A.C.T., THALASSERY DATED 31-10-2006** **APPELLANT/PETITIONER:** **-----------------------** **MUHAMMED FAHAD N.T S/O.ABDUL HAMEED, AGED 28 YEARS HARFA MANZIL, P.O.EDAKKAD, KANNUR DIST** **BY ADV. SRI.M.SASINDRAN** **RESPONDENTS/RESPONDENTS:** **--------------** ## **1. K.P HAREENDRAN** **S/O.KUNHIKANNAN, KILACHA PARAMBATH, EAST VALLYAYI,P.O MUTHIYANGA,KANNUR DIST-670001** ## **2. P.SANDEEP,** **S/O.ACHUTHAN, PUTHANPURAYIL, PATTYAM, P.O MUTHAYANGA,KANNUR DIST-670001** **3. THE UNITED INDIA INSURANCE COMPANY LIMITED,KANNUR 670001** **R3 BY ADV. SRI.PMM.NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.1859 OF 2012** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] day of July, 2016 ## **JUDGMENT** ## Jyothindranath, J. This appeal is preferred against the judgment and award dated 31-10-2011 in O.P.(MV)No.1374/2006 on the file of the Motor Accidents Claims Tribunal, Thalassery. The challenge is against the quantum of compensation awarded by the Tribunal. The relevant facts are as follows : A motor vehicle accident occurred on 28.08.2005 on Kannur – Edakkad road. The vehicles involved in the accident are a motor cycle bearing Reg.No.KL 13 G 7742 and a jeep bearing Reg.No.KL 13 A 3888. The appellant was riding the motor cycle bearing Reg.No.KL 13 G 7742. He sustained grievous injuries in the accident. He filed a claim before the Motor Accidents Claims Tribunal alleging negligence on the side of the driver of the jeep as cause of accident and arraying the owner, driver and insurer of the jeep as respondents in the petition. MACA No.1859/2012 2 The Tribunal found negligence of the driver of the jeep as cause of accident and awarded a total compensation of Rs.2,08,400/-. 2. When the appeal came up for hearing, the learned counsel for the appellant submitted before us that the appellant was a young person aged 22 years at the time of accident and was pursuing his B.Com degree. He was about to enter into his professional life. Only a notional income of Rs.1500/- was taken by the Tribunal for assessment purpose. He sustained fracture of femur as well as both bone fracture and was treated as inpatient for 69 days. It is the further submission that even though the accident occurred on 28.08.2005, he was discharged from the hospital, on his fourth admission for treatment, on 15.09.2006. At that time, he was only able to walk with the aid of walker. It is also submitted that during his third admission period even bone marrow injunction was given. A Medical Board examined him and assessed his disability as 10% which is marked as Ext.X1 before the Tribunal. Even though he was examined by the Medical Board, the Tribunal considered only 5% disability for assessment purpose. It is also brought to our notice that only a multiplier of 15 was adopted by MACA No.1859/2012 3 the Tribunal whereas the multiplier available as per the decision of the Apex Court in **Sarla Varma v. Delhi Transport Corporation ( 2010 (2 ) KLT 802 (SC)** will be 18. His submission is that here is a case where an interference by this court is warranted. 3. The learned counsel appearing for the Insurance Company submitted before us that here is a case where a student sustained injuries in a motor vehicle accident. No illegality is committed by the Tribunal by adopting a notional income of Rs.1500/-. It is the submission that it is an admitted case of the appellant that he was not having any income. Under such circumstances, a notional income of Rs.1500/- was taken by the Tribunal and hence an interference by this Court is not warranted. It is also submitted before us that the Tribunal adopted only 5% disability on the ground that the doctor who assessed the disability was not examined before the Tribunal. 4. We have perused the records and the award passed by the Tribunal. It can be seen that the claimant was aged 22 at the time of the accident. His birth certificate is marked before the Tribunal as Ext.A9. As per the said document, the date of birth of the claimant is MACA No.1859/2012 4 29.11.1983. The appellant sustained very serious injuries as evident from Exts.A5 to A7 documents. In this case, even though the case of the appellant is that he was only a student at the time of the accident, it can be seen that the appellant completed 21 years at the time of the accident and will be about to enter/seek job. As pointed out by the learned counsel for the appellant, even though the accident occurred on 28.08.2005, he was continuing his treatment even in the month of June, 2006. Even at that time, he was asked to review after a period of six weeks. 5. Thus, considering all these aspects, including the claim of the petitioner that he was pursuing his degree, we feel that it will be only just and proper to consider Rs.2,500/- as his notional monthly income for the purpose of calculation. The main grievance of the appellant is that the Tribunal erred in taking only 5% disability even though a competent medical board assessed his disability as 10%. There is force in the submission made by the appellant. We have perused the disability certificate which is marked as Ext.X1 before the Tribunal. It can be seen that, in Ext.X1, it is categorically written by MACA No.1859/2012 5 the Board that there was 10-15 degree anterior bowing on the fractured area and further there is restriction of rotation of the hips and further, flexion of the right knee is also limited. There is also shortening of the length of leg by one inch. Thus, after giving reasons, the Medical Board assessed the disability as 10%. We find no reason to discard the disability assessed by the Medical Board. Accordingly, the disability of 10% assessed by the Medical Board is taken as the percentage of disability for calculation purpose. 6. The other grievance is regarding the multiplier. The Tribunal adopted a multiplier of 15. In this regard, the learned counsel invited our attention to the dictum laid down by the Apex Court in **Sarla Varma v. Delhi Transport Corporation ( 2010 (2 ) KLT 802** **(SC)** Going by the said decision, for the age group of 21 to 25, the multiplier available will be 18. Thus, the amount available on this head will be Rs.54,000/- ( 2500 x 12 x 18 x 10%). The Tribunal has already awarded an amount of Rs.13,500/-. Thus, an additional amount of Rs.40,500/- is granted under the head of disability. 7. We have perused the schedule attached to the award. It can MACA No.1859/2012 6 be seen that even though the appellant was in the hospital for 69 days, only a sum of Rs.6,900/- was awarded towards bystander's expenses. Accident occurred in the year 2005. On this count, he will be entitled for an additional sum of Rs.6,900/-. Towards damage to clothing, only a sum of Rs.500/- is seen awarded. An additional sum of Rs.500/- is granted on this count. Apart from the same, it can be seen that only a sum of Rs.16,000/- was seen granted towards pain and suffering. As already stated, here is a case where there is fracture of femur as well as fracture of both bones which caused the disability. Appellant/claimant was in the hospital for 69 days. Thus, considering all aspects and the duration of treatment as discussed above, he is entitled for an additional sum of Rs.9,000/-. It can be seen that towards loss of amenities and convenience, only a sum of Rs.4,000/- is seen awarded. At the time of accident, the appellant was aged only 22 years. Further, as evident from Ext.A1, there is bowing on the fractured area. Thus, considering all these aspects, an additional sum of Rs.16,000/- is granted on this head. Thus, the appellant is entitled to get an additional amount of MACA No.1859/2012 7 Rs.72,900/- which is rounded off to Rs.73,000/. The said amount will carry interest @ 8% per annum from the date of petition till realization. The Insurance Company shall deposit the enhanced amount with interest within two months from the date of receipt of a copy of this judgment, failing which the amount remaining to be paid will carry interest @ 9% per annum from the date of petition till realization. There will be no order as to costs. ## **C.T.RAVIKUMAR, JUDGE** ## **K.P.JYOTHINDRANATH, JUDGE** sv. 12/07/2016