Muhammed Iqbal K.M. v. The Branch Manager, The National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS.JUSTICE MARY JOSEPH** **FRIDAY, THE 21ST DAY OF DECEMBER 2018 / 30TH AGRAHAYANA, 1940** ## **MACA.No. 92 of 2013** **AGAINST THE AWARD IN OP(MV)NO.970/2005 of MACT, MUVATTUPUZHA DATED 06-12-0201** ## **APPELLANT/PETITIONER:** **MUHAMMED IQBAL K.M, S/O.MYTHEEN, RESIDING AT KOTTAKKUDY HOUSE, MULAVOOR, MUVATTUPUZHA.** **BY ADVS. SMT.ANEY PAUL SRI.PHILIP J.VETTICKATTU** ## **RESPONDENTS/RESPONDENTS:** - ***1 K.A. STEPHEN, KIRIYATH HOUSE, OKKAL P O,PERUMBAVOOR-683550(DELETED)** - ***2 BINU K.V S/O K.V VARGHESE, KUNATHAN HOUSE, OKKAL P.O, PERUMBAVOOR-683550(DELETED)** - **3 THE BRANCH MANAGER,THE NATIONAL INSURANCE CO.LTD. A.M ROAD, PERUMBAVOOR-683542** **(THE NAMES OF 1ST AND 2ND RESPONDENTS ARE DELETED FROM THE CAUSE TITLE AT THE RISK OF THE APPELLANT AS PER ORDER DATED 10/12/2018 IN IA NO.2/2018).** ## **BY ADV. SMT.SARAH SALVY SC FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.92/2013 2 ## **JUDGMENT** The appeal on hand is directed against award dated 6.12.2011 of the Motor Accidents Claims Tribunal, Muvattupuzha (for short 'the Tribunal') in O.P(MV) No.970/2005 . Claimant in the above claim petition is the appellant. He seeks for enhancement of the compensation. According to him the compensation awarded by the Tribunal is inadequate and did not commensurate with the sufferings of the petitioner following the injuries sustained in the motor accident. The facts of the case being relevant are discussed in brief hereunder. The petitioner while riding a motorcycle bearing registration No.KL-7AE-2036 from Muvattupuzha to Nedumbassery was knocked down by a Tata Sumo vehicle bearing registration No.KL07S-4543 at about 10 am. on 30.12.2004 and sustained serious injuries. He was rushed to Little Flower Hospital, Angamaly and was referred therefrom to Chazhikattu Hospital, Thodupuzha for better management. He had spent huge sum towards treatment. Alleging that the driver of the Tata Sumo was responsible for the accident by his rash and negligent driving and claiming Rs.1,89,000/- as compensation, the claim petition as above was preferred by the petitioner before the Tribunal. The driver, owner and insurer of Tata Sumo were arrayed as respondents 1 to 3 in MACA No.92/2013 3 the claim petition filed before the Tribunal and alleged that all of them are jointly and severally liable to compensate the petitioner. 2. The driver and owner of the Tata Sumo were arrayed as respondents 1 and 2 in the claim petition and they remained exparte. The insurer of Tata Sumo arrayed as 3[rd] respondent alone had contested the claim petition . In the written statement filed by them, the insurance coverage of the Tata Sumo as on date of accident is admitted. Contentions that the 2[nd] respondent, the driver of the Tata Sumo was not responsible for the accident as he was not rash and negligent in driving the same at the relevant time and that the accident was occurred due to rash and negligent riding of motor cycle by the injured himself and therefore, he is not entitled to get compensation from respondents were also raised. The claim of age, occupation and income of the injured as on date of accident are disputed and the claim petition was sought to be dismissed. 3. Before the Tribunal, the petitioner had let in oral as well as documentary evidence. The medical practitioner, who had examined the injured and issued certificate of disability was examined as PW1 and the documents produced were marked in evidence as Exts.A1 to A11. The contesting 3[rd] respondent failed to adduce evidence before the Tribunal. 4. On appreciation of the entire evidence, the Tribunal MACA No.92/2013 4 arrived at a finding that the 2[nd] respondent before the Tribunal, who is none other than the driver of the Tata Sumo was responsible for the accident by his rash and negligent driving and therefore, the petitioner is entitled to get compensation from them. A sum of Rs.1,29,500/- was arrived at as compensation payable and the 3[rd] respondent was directed to deposit the same with interest at the rate of 8% per annum from the date of the claim petition till the date of realisation with proportionate costs. Aggrieved by the quantum of compensation awarded by the Tribunal and seeking for enhancement of the compensation, this appeal was preferred. 5. Smt.Aney Paul, the learned counsel for the petitioner has contended that the Tribunal is highly unjustified in fixing Rs.2000/as the monthly income of the petitioner and calculating compensation for loss of earning and permanent disability on it’s basis. According to her, the petitioner being aged only 38 years at the relevant time and the accident being occurred in the year 2004, the Tribunal ought to have taken a sum higher than Rs,2000/- as monthly income and arrived at compensation on it’s basis. According to the learned counsel, though the petitioner had sustained fracture and had undergone nailing at the fracture site followed by POP cast application and treated as inpatient for 35 days, the Tribunal had granted only Rs.18,000/- as compensation MACA No.92/2013 5 under the head pain and suffering. According to her, the sum arrived at by the Tribunal undoubtedly is inadequate and disproportionate to the sufferings of the petitioner. It is further contended by the learned counsel that Rs.15,000/- granted by the tribunal as compensation for loss of amenities and enjoyments in life is on the lower side. According to her, petitioner was treated as inpatient in the hospital for 33 days, but without adverting to that aspect established by evidence , compensation for bystander expenses and extra nourishment were arrived at by the Tribunal on the lower side. It is also pleaded that the compensation awarded under the head transportation expenses is also low. As revealed from the evidence on record, the inpatient treatment was followed by several reviews. Though the petitioner got his disability assessed by a medical practitioner as 16% and examined him as PW1, Tribunal failed to take the percentage of disability as such. According to her, despite the factum that Ext.A11 certificate assessing the disability as 16% was marked in evidence and the doctor who had issued the same was examined as PW1 and the insurer failed to controvert the oral evidence tendered by him, the Tribunal adopted only 12% disability to arrive at compensation payable under the head disability. According to the learned counsel, interference is warranted for the reasons stated. 6. Smt.Sarah Selvy **,** the learned Standing Counsel on behalf MACA No.92/2013 6 of the 3[rd] respondent has contended that the Tribunal has arrived at just and reasonable sum as compensation and interference of any nature is totally unwarranted. According to her, the Tribunal was constrained to take 12% as the disability for calculation of compensation for the justifiable reason that the petitioner failed to get his disability assessed by a Medical Board. According to her, the wholebody disability was assessed by the Orthopaedic Surgeon on the impression that the petitioner was a driver by profession, which factum though pleaded was not established by the petitioner by tendering either oral or documentary evidence. According to the learned counsel the Tribunal is justified in considering the disability of the petitioner as 12 % and calculating compensation on its basis and therefore, the award does not call for interference. 7. In the backdrop of the rival contentions raised as above, this Court ventured to appreciate the oral as well as documentary evidence adduced by the petitioner in the case on hand. As rightly put forth by the learned counsel for the insurer/3[rd] respondent, it is relevant to notice that the disability of the petitioner was assessed by an Orthopedic Surgeon and not by the Medical Board. It is also noticed from the evidence tendered by PW1 that he had never treated the petitioner for the injuries sustained by him in the motor accident, but examined him only for the purpose of issuance of Ext.A11. Petitioner claimed to be a driver by profession getting a MACA No.92/2013 7 monthly income of Rs.5,000/- . But no evidence was adduced by him to establish those aspects. In the aforesaid circumstances that the Tribunal had fixed the monthly income of the petitioner notionally as Rs.2,000/- for the purpose of arriving at the compensation. In Ext.A11, PW1 had arrived at the wholebody functional disability on the assumption that the petitioner was a driver. PW1 has also deposed accordingly in the box. But materials are not placed on record by the petitioner to establish that he was a driver by profession at the relevant time of accident. Therefore, the Tribunal cannot be found fault with for calculating the compensation, considering the disability as 12%. 8. The accident being in the year 2004, the Tribunal ought to have taken a higher sum as monthly income in view of **Ramachandrappa v Royal Sundaram Alliance Insurance Co.Ltd. (AIR 2011 SC 2951)** wherein the Apex Court had taken Rs.4,500/- as the monthly income of a Coolie worker who sustained injuries in a motor accident in the year 2004, while arriving at the compensation payable. The Tribunal ought to have borne in mind that a man may not be able to survive with a meagre amount of Rs.2,000/- as the monthly income. Following **Ramachandrappa's** case supra, this Court finds justification in fixing Rs.4,500/- as the monthly income. In re-fixation of compensation with the modified monthly income as above, the petitioner will get additional sums as MACA No.92/2013 8 compensation under the respective heads, loss of earning and permanent disability. In view of the discussion made on the basis of Ext.A6, the certified copy of the wound certificate originally issued from Chazhikattu Hospital, Thodupuzha and Exts.A8 and A10 certificates issued from the very same hospital and Ext.A9, the treatment certificate issued from Little Flower Hospital, Angamaly, it is evidenced that the petitioner had sustained a bicondylar fracture of left tibia and was subjected to open reduction and internal fixation. He had undergone inpatient treatment for a period from 30.12.2004 till 14.1.2005. Following that treatment, POP slab was also applied for a period of five weeks. Thereafter, there were regular reviews and on 14.2.2005, the plaster of parris slab applied was removed. Thereafter, in the X-ray examination, the fracture was found united and crepe bandage and knee mobilizer were applied. On 28.2.2005 he was advised partial weight bearing walking with the support of axillary crutches and on 14.3.2005 was advised 50% weight bearing walking with support of axillary crutches. Thereafter, he had undergone physiotherapy for two spells from 14.3.2005 to 21.3.2005 and again from 28.3.2005 till 4.4.2005 for getting proper mobilisation of his leg. On 24.2.2006, he was further admitted in the hospital for getting the implants removed and discharged on 27.2.2006. He was again admitted at Little Flower Hospital, Angamaly with fracture of tibial MACA No.92/2013 9 plateu left knee and got discharged therefrom against medical advise. The screws applied were removed on 7.5.2008 as evidenced from the description of the Tribunal in the award based on Ext.A10. On 19.5.2008 the sutures were removed. In view of the above, Rs.18,000/- and Rs.15,000/- respectively awarded by the Tribunal as compensation towards pain and suffering and loss of amenities and enjoyments in life appear to this Court meagre and disproportionate. Therefore, this Court is inclined to grant an additional sum of Rs.7,000/- under the head pain and suffering and and Rs.5,000/- under the head loss of amenities and enjoyments in life. 9. As discussed hereinabove, the petitioner had undergone inpatient treatment for 33 days at two different hospitals, one among which was situated at Thodupuzha and the other at Angamaly. Therefore, expenditure towards conveyance is unavoidable. Without an application of mind, the Tribunal had awarded a total sum of Rs.8,500/- under the head general expenses, which is inclusive of compensation payable for transportation, extra nourishment and damages to clothing. It is surprising to note that the head general expenses also takes in bystander expenses. The aforesaid, coupled with the factum that the accident was occurred in the year 2004, this Court finds that a sum of Rs.150/- per day, if fixed for assessment of compensation under each of the heads MACA No.92/2013 10 bystander expenses and extra nourishment will be reasonable. In re-fixation of compensation with Rs.150/- per day, the petitioner will be entitled to get Rs.4950/- under each of those heads. For damages to clothing, though Rs.1,000/- being the sum usually awarded by the Tribunal, the petitioner is entitled for that and the same is granted. Under the head transportation expenses, for the reasons stated earlier, the sum payable as compensation is refixed as Rs.4,000/-. When the sums found payable as compensation under different heads as above were added together, the petitioner will get a total sum of Rs.14,900/-. The Tribunal having been awarded Rs.8,500/-, the petitioner will be entitled to get Rs.6,400/additionally. 10. It is seen from the impugned award that the Tribunal had awarded a sum of Rs.10,000/- as compensation towards loss of earning by fixing Rs.2,000/- as the monthly income for a period of five months. When the refixed monthly income of Rs.4,500/-, if calculated for a period of five months, the petitioner will be entitled to get Rs.12,500/- additionally under that head. In the refixation of compensation by maintaining the multiplier and the percentage of disability as considered by the Tribunal and with the refixed monthly income of Rs.4,500/-, the petitioner will be entitled to get Rs.54,000/- [97200(4500x12x15x12/100)-43200] additionally under the head permanent disability. MACA No.92/2013 11 11. In the calculation as above, the petitioner will be entitled to get a total sum of Rs.84,900/- (Rupees eighty four thousand and nine hundred only) as additional compensation and the amount will carry interest at the rate of 8% per annum from the date of the claim petition till the date of realisation. The 3[rd] respondent/insurer shall deposit the aforesaid sum with interest within a period of two months from the date of receipt of a copy of this judgment. The appeal is allowed on terms as above. No order as to costs. The petitioner shall pay the additional court fee for the amount by which the total compensation granted exceeds the claim of compensation as per the claim petition. **Sd/-** ## **MARY JOSEPH** ## **JUDGE** **ab**