Muhammed Jail @ Mubash v. Saravanan, G. Nagarajan and The Oriental Insurance Co. Ltd.

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 19 [ TH ] DAY OF JULY 2024 / 28TH ASHADHA, 1946 ``` ## **`MACA NO. 593 OF 2016`** ``` AGAINST THE AWARD DATED 10.02.2015 IN OP(MV) NO.16 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR ``` ## **`APPELLANT/PETITIONER:`** ``` MUHAMMED JAIL @ MUBASH, AGED 35 YEARS, S/O.ABDULLAKUTTY, KOPPALAYIL HOUSE, KAYAMKULAM, ALAPPUZHA. ``` ## **`BY ADV SHEJI P.ABRAHAM`** ## **`RESPONDENTS/RESPONDENTS:`** - **`*1 SARAVANAN,`** ``` S/O.PONNUSWAMY, DOOR NO.2/122-C MACHANI ARASSANA STREET, ATOOR THALUK, SALEM-636001.[DELETED] ``` ``` *RESPONDENT NO.1 IS REMOVED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 28.6.2024 IN MACA. 593/16. ``` MACA 593/16 2 - **`2 G.NAGARAJAN,`** ``` S/O.GOVINDASWAMY GOUNDER, NO.6/24-528, THASILDAR, THOTTAM, ANBU NAGAR, SIRUNACUR, SALEM-636001. ``` - **`3 THE ORIENTAL INSURANCE CO. LTD.,`** ``` DWARAKA, 2ND FLOOR, GANDHI SALAI, CHENNAI, TAMIL NADU-600001. ``` ``` BY ADV RINNY STEPHEN CHAMAPARAMPIL, SC, ORIENTAL INSURANCE CO. LTD. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 593/16 3 ## **J U D G M E N T** This appeal is at the instance of the claimant in OP(MV)No.16 of 2009 on the file of Motor Accidents Claims Tribunal, Thrissur, impugning the award on the ground of inadequacy of compensation. 2. On 22.06.2006 at 9.40 a.m., while the appellant/claimant was driving a lorry, TN-31/M-1299 lorry driven by the 1st respondent, in a rash and negligent manner, dashed against his lorry and he sustained serious injuries including head injury and comminuted fracture of both bones of right leg. He was admitted and treated in hospital for 20 days. He was a 25 year old, heavy vehicle driver, earning monthly income of Rs.10,000/-. He approached the Tribunal claiming compensation of Rs.12,00,000/-. But learned Tribunal awarded only Rs.5,00,550/- and hence this appeal. 3. The 1st respondent was the driver of the offending lorry, 2nd respondent was its owner and the 3rd respondent was its Insurer. Respondents 1 and 2 remained _ex parte_ before the Tribunal. The 3rd respondent-Insurer admitted the Policy, but MACA 593/16 4 according to them, there was violation of the Policy conditions as the offending vehicle had no fitness certificate and permit at the time of accident. 4. Learned Tribunal found that the accident occurred due to the rash and negligent driving of the offending lorry by the 1st respondent, which was owned by the 2nd respondent. Since that vehicle was having valid insurance coverage, as on the date of accident, the primary liability to compensate the claimant was fixed on the 3rd respondent-Insurer. But finding violation of the Policy conditions, recovery was ordered against the 2nd respondent-owner. 5. In the appeal, the 3rd respondent-Insurer would contend that the compensation awarded by the Tribunal is just and reasonable, and hence it need not be interfered with, and the recovery ordered against the owner has to be retained. 6. Now this Court is called upon to answer whether there is any illegality, irregularity or impropriety in the impugned award, warranting interference by this Court. 7. Heard learned counsel for the appellant and learned MACA 593/16 5 counsel for the 3rd respondent-Insurer. 8. Learned counsel for the appellant would submit that the appellant was a 25 year old heavy vehicle driver, earning monthly income of Rs.10,000/-. So the notional income fixed by the Tribunal @ Rs.4,000/- per month is arbitrarily low. He would rely on the decision **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]** , to say that even a coolie worker was eligible to get his notional income fixed @ Rs.5,500/- per month in the year 2006. If so, a skilled driver, who was having licence to drive heavy vehicles, was eligible to get his notional income fixed even higher than that. Accepting that argument, this Court is inclined to fix the notional income of the appellant @ Rs.6,500/- per month. 9. Learned Tribunal assessed loss of earning for 12 months. Learned counsel for the appellant would submit that the appellant was on complete bed rest for 9 months and he was not able to resume his driving job thereafter also. MACA 593/16 6 Considering the nature of injuries and period of hospitalisation, and the various surgical procedures he had undergone, this Court is inclined to assess his loss of earning for a period of 18 months. We have fixed his notional income @ Rs.6,500/- per month. So he is entitled to get Rs.1,17,000/(6,500x18) towards loss of earning. After deducting Rs.48,000/- already awarded by the Tribunal, he will get balance Rs.69,000/- as enhanced compensation under the head ‘loss of earning’. 10. Towards transportation expenses, learned Tribunal awarded only Rs.2,500/-. Though the accident was in the year 2006, the appellant was taken to hospital on various occasions for different surgical procedures and also for subsequent reviews. So this Court is inclined to award Rs.2,000/- more under the head ‘transportation expenses’. 11. Towards extra nourishment, learned Tribunal awarded Rs.10,000/-, against his claim of Rs.50,000/-. Since he was on complete bed rest even after discharge, and we have taken MACA 593/16 7 loss of earning for 18 months, finding that he was not able to do any job during that period, this Court is inclined to award Rs.5,000/- more towards extra nourishment. 12. Towards bystander expenses, learned Tribunal awarded Rs.15,000/-. He was hospitalised for 20 days and even after discharge he might have been in need of a bystander, since he had suffered comminuted fracture of both bones of right leg and head injury with diffuse brain edema. So this Court is inclined to award Rs.10,000/- more under the head ‘bystander expenses’. 13. Towards pain and suffering, this Court is inclined to award Rs.15,000/- more, considering the nature of injuries suffered, the period of hospitalisation, the period of rest after discharge, and also considering the various surgical procedures he had undergone during that period. 14. Learned Tribunal assessed disability of the appellant as 20% based on the testimony of PW1-Doctor coupled with Ext.A16 Disability Certificate. The disability of 22.02% MACA 593/16 8 assessed by PW1-Doctor was with respect to the right lower limb and 6% disability was assessed for his loss of memory. Learned Tribunal took the disability as 20% converting it into his whole body disability. So, this Court is not inclined to interfere with the finding of the Tribunal that the whole body disability suffered by the appellant was 20%. We have fixed his notional income @ Rs.6,500/-. The multiplier applicable is 18. So, the disability compensation can be assessed as Rs.2,80,800/(6,500x12x18x20/100). After deducting Rs.1,72,800/- awarded by the Tribunal, he is entitled to get Rs.1,08,000/- as enhanced compensation for disability. 15. Towards loss of amenities, learned Tribunal awarded only Rs.30,000/-. Considering the nature of injuries suffered, and the disabilities noted in Ext.A16 Certificate, such as shortening of 3cm of right compartment of lower leg, difficulty in squatting and climbing stairs, loss of memory and frequent headache, this Court is inclined to award Rs.15,000/- more for loss of amenities. MACA 593/16 9 16. The compensation awarded by the Tribunal under all other heads seems to be reasonable and hence it needs no modification. |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Difference to be<br>drawn as<br>enhanced<br>compensation| |---|---|---|---| |Loss of earning|Rs.48,000/-|Rs.1,17,000/-|Rs.69,000/-| |Transportation<br>expenses|Rs.2,500/-|Rs.4,500/-|Rs.2,000/-| |Extra nourishment|Rs.10,000/-|Rs.15,000/-|Rs.5,000/-| |Bystander<br>expenses|Rs.15,000/-|Rs.25,000/-|Rs.10,000/-| |Pain and suffering|Rs.40,000/-|Rs.55,000/-|Rs.15,000/-| |Compensation for<br>permanent<br>disability|Rs.1,72,800/-|Rs.2,80,000/-|Rs.1,08,000/-| |Loss of amenities|Rs.30,000/-|Rs.45,000/-|Rs.15,000/-| |Total|||**Rs.2,24,000**/-| 17. In the result, the appellant is entitled to get enhanced compensation of Rs.2,24,000/-. 18. The 3rd respondent-Insurer is directed to deposit the enhanced compensation of Rs.2,24,000/- (Rupees Two Lakh MACA 593/16 Twenty Four Thousand only) with 7.5% interest per annum, from the date of petition till the date of deposit (excluding 223 days of delay in filing the appeal) before the Motor Accidents Claims Tribunal, Thrissur, within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to the appellant, after deducting his liabilities, if any, towards tax, balance court fee and legal benefit fund. 19. The recovery ordered against the 2nd respondent-owner is not under challenge and hence upheld, as far as the compensation awarded by the Tribunal, as well as the enhanced compensation awarded in this appeal. So the 3rd respondent can recover the amount deposited by them, from the 2nd respondent - owner and his assets. The appeal is allowed to the extent as above, with proportionate costs. Sd/- **SOPHY THOMAS JUDGE** DSV/-