Muhammed Gadhafi v. M/s HDFC-ERGO General Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH SATURDAY, THE 16TH DAY OF SEPTEMBER 2017/25TH BHADRA, 1939 MACA.No. 1132 of 2013 () ------------------------AGAINST THE AWARD IN OPMV 10/2011 of MACT,KALPETTA DATED 29-11-2012 APPELLANT(S):PETITIONER ----------------------------- MUHAMMED GADHAFI, S/O.ABU AGED 23 YEARS,THURAPPA HOUSE, THAZHE ARAPPETTA, MEPPADI POST. BY ADV. SMT.CELINE JOSEPH RESPONDENT(S)/RESPONDENT NO.3: ------------------------------ M/S. HDFC-ERGO GENERAL INSURANCE CO.LTD. REPRESENTED BY ITS MANAGER, CHAIRSMAC, 6/845 GROUND FLOOR, YMCA ROAD, CALICUT-1. BY ADV. SRI.K.B.RAMANAND THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ. ========================== M.A.C.A. No.1132 OF 2013** **==========================** Dated this the 16[th] day of September, 2017 ## **JUDGMENT** _Ravikumar, J._ The injured petitioner in O.P.(MV) No.10 of 2011 on the files of the Motor Accidents Claims Tribunal, Kalpetta comes up in appeal seeking enhancement of the quantum of compensation awarded by the Tribunal as per the award passed thereon. He sustained injuries in a motor vehicle accident occurred on 23.1.2010 at about 1.00 p.m. He was a passenger in a jeep bearing Reg.No.KL-08/N-3344. It collided with a bus bearing Reg.No.KL-10/Q-862 driven by the first respondent. On sustaining injuries, he was taken to a hospital where he remained as an inpatient for a period of 19 days. The injuries sustained by him resulted in permanent disability. In the said circumstances, he filed the above claim petition under section 166 of **M.A.C.A.1132/2013** 2 the Motor Vehicles Act seeking a compensation of Rs.3 lakhs. As per the impugned award, the Tribunal had granted Rs.1,21,700/- with interest at the rate of 7.5% per annum from the date of petition till realisation. 2. We have heard the learned counsel for the appellant and also the learned counsel for the respondent. In view of the absence of any dispute regarding the cause of accident as also liability of the respondent insurance company to indemnify the insured owner of the offending vehicle, we are only called upon to consider the question whether or not the appellant is entitled to get enhanced compensation. 3. Before the Tribunal, no oral evidence was adduced by both sides. Exts.A1 to A9 series were got marked on the side of the appellant. Ext.C1 disability certificate dated 15.7.2011 is issued by the Medical Board of District Hospital, Mananthavady certifying the extent of disability of the appellant as 10%. He was then aged 21 years. In the claim petition, it was averred that the claimant was a driver by profession and was earning Rs.7,800/- per month. In the absence of evidence to establish the averments regarding his **M.A.C.A.1132/2013** 3 occupation and income, the Tribunal had fixed the monthly income notionally for calculation purpose. In such circumstances, the Tribunal cannot be found fault with in fixing the monthly income notionally for calculation purpose. However, the question is whether fixation of monthly income notionally as Rs.3,000/- invites interference. In that context, the fact that the accident had occurred on 23.01.2010 and at the time of accident, the appellant was aged only 21 years, are to be looked into. It is to be noted that even in the case of a coolie who met with an accident in the year 2004, the Hon'ble Apex Court had fixed the monthly income for calculation purpose as Rs.4,500/- ( **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** . Taking into account all the aforesaid factors as also the said decision, we do not find absolutely any reason to disbelieve the claim of the appellant regarding his monthly income. In short, we are inclined to fix the monthly income of the appellant for calculation purpose as Rs.7,500/-. The entire extent of disability certified in Ext.C1 was accepted by the Tribunal. The multiplier was also rightly adopted with reference to **M.A.C.A.1132/2013** 4 the age of the appellant injured at the time of the accident. Hence, a re-assessment of the compensation for disability is required only substituting the re-fixed monthly income. On such re-assessment, the amount payable under this head will be Rs.1,62,000/(7500x12x18x10/100). The Tribunal has already awarded an amount of Rs.64,800/- under that head. After deducting the said amount, the appellant is entitled to get Rs.97,200 **/-** additionally. The Tribunal had fixed the period for calculating compensation for loss of earning as three months. The learned counsel for the appellant submits that the said period fixed is too short. As noticed hereinbefore, he had been an inpatient for a period of 19 days. Ext.C1 disability certificate would reveal the extent of disability incurred as 10%. Reckoning all the aforesaid aspects, we are of the view that the period for the purpose of calculating compensation for loss of earning ought to have been fixed as four months. Accordingly, it is fixed. For the said period, at the rate of Rs.7,500/- per month, the amount payable under this head would be Rs.30,000/-. The Tribunal had already awarded an amount of Rs.9,000/- under this head. In such circumstances, the appellant is **M.A.C.A.1132/2013** 5 entitled to get an amount of Rs.21,000 **/-** additionally. The Tribunal had granted only an amount of Rs.5,000/- towards loss of amenities. Taking note of the injuries as also their impact, it is evident that the appellant must have been deprived of enjoyment of life for a quite long time. Hence, we are inclined to grant Rs.10,000/- additionally under that head. No amount was granted by the Tribunal towards future treatment. Paragraph 27 of the impugned judgment would reveal that the appellant had appeared before the Tribunal and his disability was verified. Taking into account the difficulties experienced by the appellant vividly narrated in paragraph 27 of the impugned judgment as also taking into account the nature of the injuries, we are of the view that it is only just and proper to grant an amount of Rs.15,000/- towards future treatment expenses. Though the accident had occurred in the year 2010, the Tribunal had awarded bystanders expenses only at the rate of Rs.100/-. We are of the view that it ought have been Rs.200/- per day. In that view of the matter, the appellant is entitled to get Rs.1,900 **/-** additionally towards bystanders expenses. Towards damage to clothing, we are inclined to **M.A.C.A.1132/2013** 6 grant Rs.500 **/-** more. In the light of the assessment/re-assessment made by us, the appellant is entitled to get a total additional compensation of Rs.1,45,600 **/-** . It is awarded. The said amount will carry interest at the rate of 8% per annum from the date of petition till realisation. In view of the absence of any dispute regarding the liability to indemnify the insured owner of the offending vehicle, the respondent is directed to deposit the said amount along with interest thereon within a period of two months from the date of receipt of a copy of this judgment. Appeal is disposed of. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE) Sd/K.P.JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.1132/2013** 7 **C.T. RAVIKUMAR, J.** **M.A.C.A.1132/2013** 8 **JUDGMENT September, 2010**