Muhammed @ Kunjumuhammed S/O Moideenkutty v. Dipitha; Ummer @ Farooq; 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** **THURSDAY, THE 29TH DAY OF SEPTEMBER 2016/7TH ASWINA, 1938** ## **MACA.No. 1187 of 2012 ()** ## **------------------------AGAINST THE AWARD IN OPMV 1233/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPALAM DATED 20-01-2012** ## **APPELLANT(S)/PETITIONER:** **-----------------------** **MUHAMMED @ KUNJUMUHAMMED S/O. MOIDEENKUTTY, RESIDING AT KOLOTHUPARAMBIL HOUSE, P.O. AMAYUR, PATTAMBI, PALAKKAD DISTRICT.** **BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD SRI.K.A.ANAS** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** ## **1. DIPITHA** **D/O. GOPINATHAPILLA, RESIDING AT RATNA NIVAS, P.O. OORAKA KEEZHUMURI, MALAPPURAM - 676 515.** ## **2. UMMER @ FAROOQ,** **S/O. PATHUMMA,RESIDING AT KUZHIKATTIL HOUSE, P.O. VILAYUR, PALAKKAD - 679 309.** ## **3. UNITED INDIA INSRUANCE COMPANY LIMITED, PEECHI COMPLEX, CALICUT ROAD, PERINTHALMANNA, MALAPPURAM - 679 322.** **R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW R BY SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29-09-2016, ALONG WITH MACA. 1199/2012, MACA. 1200/2012, MACA. 1298/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.1187, 1199, 1200 and 1298 of 2012 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of September, 2016** ## **J U D G M E N T** ## **Jyothindranath,J.** All these appeals arise from the common judgment dated 20.01.2012 passed by the Motor Accidents Claims Tribunal, Ottapalam in O.P.(M.V.)Nos.1233/2008, 1232/2008, 96/2009 and 1230/2008 respectively. Appellants are the claimants therein. The accident occurred on 23.01.2008. MACA 1187/2012 is filed by the injured - claimant in O.P.(M.V.)No.1233/2008, MACA 1199/2012 is filed by the injured - claimant in O.P.(M.V.)No.1232/2008, MACA 1200/2012 is filed by the legal heirs of the minor child aged only 8 months at the time of the accident who are the claimants in O.P.(M.V.)No.96/2009 and MACA 1298/2012 is filed by the injured - claimant in O.P.(M.V.) No.1230/2008 on the file of the Motor Accidents Claims Tribunal, Ottappalam. The challenge is against the quantum of compensation awarded by the Tribunal. 2. When the appeals came up for hearing, M.A.C.A.Nos.1187, 1199, 1200 and 1298 of 2012 2 Sri.T.C. Suresh Menon, the learned counsel for the appellants submitted before us that the accident occurred on 23.01.2008 at Kallatty Masinargudi road. A tempo traveler bearing registration No.KL-10 Z 6825 capsized and the passengers sustained injuries and the above referred claim petitions were filed. 3. It is the case of the appellants that there is no dispute regarding the cause of the accident and the liability of the insurance company to pay compensation. Thus, the only question to be considered in these appeals is whether the appellants are entitled for enhancement of compensation. The said aspect is not disputed by Sri. Mathews Jacob, the learned Senior Counsel appearing for the third respondent, insurer. 4. The learned counsel appearing for the appellant in MACA 1187/2012 submitted before us that a business man who is supplying goods to the Defence at Abudabi is the claimant herein. It is the submission of the learned counsel that even though he produced his passport, from M.A.C.A.Nos.1187, 1199, 1200 and 1298 of 2012 3 which, it can be seen that he is a person who is working abroad. The Tribunal considered only a notional income of Rs.3,500/- per month and assessed the compensation. It is the submission that he sustained very severe injuries in the said accident. The injuries sustained by him are fracture right acetabulam both columns with central dislocation of right hip, fracture right inferior pubic ramus, fracture left clavicle, fracture left shaft of humerus, displaced fracture of patella with haemarthrosis, chest injury - right pneumothorax, fracture 11[th] rib right with contusion right lower lobe, fracture D8 vertebra and degloving injury right ankle, lateral aspect with partial heel pad avulsion. There was also fracture lateral malleolus and lisfrancis fracture right foot. Even though such very grievous injuries were sustained by him, the Tribunal awarded only a nominal amount of Rs.8,40,400/- against a total claim of Rs.20 lakhs. It is the submission that the gravity of the injuries are not considered by the Tribunal as also the fact that he is an NRI as evident from Ext.A51 passport is not considered. M.A.C.A.Nos.1187, 1199, 1200 and 1298 of 2012 4 5. The submission of the learned counsel in respect of MACA 1199/2012 is that it is a case where the claimant is a housewife who claimed that her income has to be taken as Rs.4,000/- per month for calculation purpose. It is the submission that she also sustained very severe injuries in the accident. As per Ext.A26 discharge summary issued from Kovai Medical Centre, Coimbatore it can be seen that she was admitted in the hospital on 24.1.2008 and was discharged only on 24.3.2008. She sustained diffuse axonal injury on brain and her disability was assessed as 40%. It is the submission of the learned counsel for the appellant that she continued her treatment and she was again admitted in the hospital on 3.6.2008 and was discharged only on 7.6.2008. It is the submission that in her case also even though the total claim was Rs.10 lakhs, the Tribunal awarded only an amount of Rs.6,46,050/-. It is the submission that in ( **Lata Wadhwa v. State of Bihar [AIR 2001 SC 3218])** , a case where the accident was in the year 1989, the Apex court considered the value of the service of M.A.C.A.Nos.1187, 1199, 1200 and 1298 of 2012 5 a housewife as Rs.3,000/-. In this case, the accident occurred in 2008 and the Tribunal should have been accepted the claim of the appellant that she was having an income of Rs.4,000/- per moth. It is the further submission that the compensation awarded is on a lower side. It is also brought to our notice that she was pregnant at the time of accident. Due to the treatment and the exposure to radiations like X-ray etc. as well as medicines, a medical advice was given to terminate the pregnancy. As per the medical advice, her pregnancy was terminated and it is the submission of the learned counsel for the appellant that, compensation awarded on the said head is also on a lower side. 6. On the said submission of the learned counsel, we have perused the schedule attached to the award, which revealed that the claim of the appellant for loss of foetus was Rs.50,000/- and the Tribunal awarded that amount on this head. It cannot be said that the appellant is an aggrieved party at least on this count. M.A.C.A.Nos.1187, 1199, 1200 and 1298 of 2012 6 7. In MACA 1200/2012, the appellants are the legal heirs of the deceased Baby Mishal. The deceased was aged only 8 months. The case of the appellants is that they are the parents, brothers and sister of deceased minor child. The minor child died due to the injuries sustained in the accident. There was a total claim of Rs.2,65,000/-, whereas the Tribunal awarded only a compensation of Rs.2,44,500/-. The challenge raised before us is that only a notional income of Rs.15,000/- was considered and an assessment was made. Apart from the said factor the Tribunal should have been awarded compensation on various heads like funeral expenses, loss of love and affection and on other pecuniary heads. 8. MACA 1298/2012 is filed by the appellant challenging the quantum of compensation awarded by the Tribunal in O.P.(M.V.)No.1230/2008. His case is that he is employed abroad and is having a monthly earning of Rs.60,000/-. He produced his passport to show that he is a NRI who is working abroad. His case is that, in the M.A.C.A.Nos.1187, 1199, 1200 and 1298 of 2012 7 accident, he sustained comminuted fracture of scapula right extending to glenoid. There is also, fracture of left pubic ramus. He was treated as an inpatient for 7 days. His disability was assessed by a qualified doctor as 10%. But the Tribunal considered only 6% disability. It is the submission of the learned counsel that the compensation awarded on various heads are on lower side. 9. The learned Senior Counsel appearing for the Insurance Company Sri. Mathews Jacob submitted before us that just compensation was assessed and awarded by the Tribunal. The points raised by the learned Senior Counsel is that apart from producing the copy of the passport no evidence was adduced by the appellant in MACA 1187/2012 to establish his occupation as well as his income. It is the submission made before us that when there is no material to establish or to prove the occupation and income of the appellant, no illegality is committed by the Tribunal by adopting a notional income. It is also the submission made before us that the compensation is a just compensation as M.A.C.A.Nos.1187, 1199, 1200 and 1298 of 2012 8 such an interference in this regard is not necessary. In respect of MACA 1199/2012, it is submitted before us that it is an admitted case of the appellant that she is a housewife. If that be so there will be no income. The Tribunal considered Rs.3,000/- per month as her monthly income for calculation purpose. In **Krishnadas v. Henry Joseph [2011 (4) KLT 716]** a Division Bench of this Court considered the income of a housewife as Rs.3,000/-. Thus it can be seen that the Tribunal correctly considered the income for calculation purpose. It is also the submission made before us that in this case there is a case for the appellant that a medical termination was done. It is submitted before us that there is no case for the appellant that at the time of accident any injury was sustained to the so called embryo. If that is so, the appellant cannot claim compensation by allowing to grow the same and claiming that medical termination was done on a later point of time, at a period when the age of the foetus was 91 days. Thus the Tribunal awarded a just compensation of Rs.50,000/- on M.A.C.A.Nos.1187, 1199, 1200 and 1298 of 2012 9 that head which was the claim of the appellant. As such an interference is not warranted. 10. The appellant in MACA 1298/2012 is alleged as a businessman. In this case also apart from the copy of the passport, no document was produced before the Tribunal. It is the submission of the learned Senior Counsel that even though PW1, the Orthopedic Surgeon attached to Government Medical College Hospital, Thrissur assessed 10% disability, the Tribunal considered the whole body disability as 6%. It is the submission that the Tribunal pointed out that all the fractures are united going by the evidence of PW1 and came to the conclusion that 6% disability alone need be considered for assessment purpose and as such an interference by this court on that aspect is not warranted. It is the submission of the learned Senior Counsel that in MACA 1200/2012, against a total claim of Rs.2,65,000/- the Tribunal awarded a total compensation of Rs.2,44,500/- which is a just compensation and an interference is not warranted. M.A.C.A.Nos.1187, 1199, 1200 and 1298 of 2012 10 11. In MACA 1187/2012 the case of the appellant herein is that he is a businessman who is supplying articles to the Defence at Abudhabi. He claimed that he was aged 52 years at the time of accident. The Tribunal after highlighting the fact that no evidence was adduced to substantiate his claim, only a notional income of Rs.3,500/was taken as his monthly income for calculation purpose. Ext.A51 is the copy of the passport produced by the appellant herein. The case of the appellant is that he is working abroad and is earning a handsome amount. 12. We have perused the copy of the passport which revealed that his date of birth is 11.10.1952. The said passport also revealed the fact that he is a NRI. Surely the entires therein cannot be equated with the proof of occupation as well as his income. But at the same time from the entries in the passport, it can presumed that he is a person who is having the status of a NRI. Considering all aspects including the uncertainty of the job abroad and further expenses may incur in a far away place, we feel that M.A.C.A.Nos.1187, 1199, 1200 and 1298 of 2012 11 it will be only just and proper to consider Rs.7,000/- as the monthly income for calculation purpose especially when the accident occurred in the year 2008. We have perused the schedule attached to the award. It is revealed that towards loss of earning, the Tribunal considered six months period. If a monthly income of Rs.7,000/- is considered, for the very same period, he will be entitled for an additional sum of Rs.21,000/-. The said amount is awarded. We have perused the wound certificate as well as other medical records produced by the appellant herein. The said records reveal that he sustained very severe and grievous injuries. It is also relevant to note that the medical report issued by the Medical Board attached to the Government Medical College, Thrissur, which is marked as Ext.X4 shows that he is having a permanent disability of 25%. The disability aspect is seen accepted by the Tribunal. Considering all these aspects, towards pain and suffering he is entitled to get an additional sum of Rs.20,000/- over and above amount already awarded. It is a case where the appellant sustained M.A.C.A.Nos.1187, 1199, 1200 and 1298 of 2012 12 very severe injuries as stated above and sustained a permanent disability of 25%. The Tribunal awarded only a sum of Rs.40,000/- towards loss of amenities and convenience etc. The said amount seems to be on a lower side. Thus an additional sum of Rs.20,000/- is awarded on this head. Apart from the same, when the monthly income is considered as Rs.7,000/-, the appellant will be entitled to get an additional compensation of Rs.94,500/-. The multiplier was correctly taken by the Tribunal by referring to the date of birth of the appellant as evident from Ext.A51. Thus, the appellant herein will be entitled to get an additional compensation of Rs.1,55,500/- (Rupees one lakh fifty five thousand five hundred only). 13. In MACA 1199/2012, the appellant is a housewife who was aged only 28 years at the time of accident. In this case she sustained very severe head injury. There is diffuse axonal injury on brain. The disability was assessed as 40%. Ext.X2 is the disability certificate issued by the Medical Board attached to the Government Medical College, M.A.C.A.Nos.1187, 1199, 1200 and 1298 of 2012 13 Thrissur. In this case, the positive case of the appellant is that she is a housewife and the claim of the appellant is that her monthly income should have been taken as Rs.4,000/-. There is force in the submission. The accident occurred in the year 2008. In the decision in **Krishnadas** 's case pointed out by the learned Senior Counsel, therein the accident occurred in the year 2002. Thus, for calculation purposes the income of the appellant herein is considered as Rs.4,000/- per month. Thus considering Rs.4,000/- as her monthly income, she will be entitled to get an additional compensation for continuing permanent disability of Rs.81,600/-. That amount is awarded. Apart from the same, the Tribunal awarded only a sum of Rs.30,000/- towards loss of amenities and convenience etc. It is a case where there is a permanent disability of 40%. Thus considering all aspects an additional amount of Rs.20,000/- is awarded on the head of loss of amenities and conveniences. Apart from the same, an additional amount of Rs.10,000/- is awarded on future medical expenses as well as an additional sum of M.A.C.A.Nos.1187, 1199, 1200 and 1298 of 2012 14 Rs.500/- is awarded on the head of damage to clothing. Surely, the appellant got a case that towards loss of foetus the compensation awarded is on a lower side. But it can be seen that the claim of the appellant is only Rs.50,000/- and the Tribunal awarded Rs.50,000/- on this head. More over, at the time of accident it can be said that the alleged foetus was only at the embryo stage. Considering all these aspects, it is found that there is no merit in the argument advanced by the learned counsel for the appellant on this head since the entire claim of the appellant in this regard is accepted. Thus the appellant in MACA 1199/2012 is entitled for an additional compensation of Rs. Rs.1,12,100/- (Rupees one lakh twelve thousand one hundred only). 14. In MACA 1200/2012, the appellants are the parents and siblings of the minor child Baby Mishal who sustained fatal head injury and succumbed to the injuries. The deceased was aged only 8 months. The challenge is against the quantum of compensation awarded. In this case a total of compensation Rs.2,44,500/- is seen awarded. The M.A.C.A.Nos.1187, 1199, 1200 and 1298 of 2012 15 main grievance of the appellants is that it is a claim under Section 166 of the M.V.Act. As such a minimum compensation for funeral expenses, loss of love and affection etc should have been granted. The main grievance of the appellant is that it was treated as a 163 A claim by the Tribunal. It is also the submission that even in the award, on the opening paragraph it was treated as 163A claim. We have perused the claim application and found that it is an application under Section 166 of the M.V.Act. In this case the child is only aged 8 months. The deceased was travelling along with her parents. In this case, for assessment of compensation for death, we can look into the schedule under Section 163A. For assessment purpose, the notional income of the child can be considered as Rs.15,000/- per annum and the multiplier also can be adopted from the same schedule as 15. Thus the amount available will be Rs.2,25,000/-. Surely when the child is aged only 8 months there will be no meaning in making a deduction especially when the compensation is assessed M.A.C.A.Nos.1187, 1199, 1200 and 1298 of 2012 16 under Section 166 of the M.V.Act. Thus, towards compensation for death a sum of Rs.2,25,000/- awarded. Apart from the same, as pecuniary loss will be there, a sum of Rs.25,000/- awarded towards funeral expenses. It is a fact that the parents lost a child who is aged only 8 months. It will be a shock when the child died in an accident, whereas the parents sustained only injuries. It is also to be remembered that the other appellants are the siblings. Thus, a sum of Rs.50,000/- is awarded on the head of loss of love and affection. Thus the appellants are entitled to get a total compensation of Rs.3,00,000/- (Rupees three lakhs only). It is also made clear that in O.P.(M.V.)96/2009, the Tribunal shall realize the additional court fee as required under law before disbursing the amount. Thus, the total compensation is assessed as Rs.3,00,000/-. Since the Tribunal has already granted an amount of Rs.2,44,500/-, the appellants will be entitled to get an additional amount of Rs.55,500/- (Rupees fifty five thousand five hundred only). The compensation also shall be apportioned in the same M.A.C.A.Nos.1187, 1199, 1200 and 1298 of 2012 17 ## proportion as ordered by the Tribunal. 15. In MACA 1298/2012, the appellant made a claim of Rs.3 lakhs. The case of the appellant is that he was aged only 34 years at the time of accident and was a businessman in gulf. His case is that he was having a monthly income of Rs.60,000/-. As already highlighted by the learned counsel, he sustained comminuted fracture body of scapula right extending into glenoid as well as transverse fracture of glenoid and fracture left pubic ramus. The said injuries are evident from Exts.A14 discharge summary and A15 wound certificate marked before the Tribunal. Even though the case of the appellant is that he is a businessman in the gulf country, apart from the passport no other document is seen produced before the Tribunal to establish his case. Surely Ext.A16 is the passport marked before the Tribunal. On a perusal of the same, it can be seen that he is having a NRI status. In a similar situation, in MACA 1187/2012, we have considered Rs.7,000/- as the monthly income. The said income is adopted in this case M.A.C.A.Nos.1187, 1199, 1200 and 1298 of 2012 18 also as the appellant is having the same status. In this case, another aspect highlighted by the learned counsel for the appellant is that even though the doctor attached to Government Medical College Hospital, Thrissur assessed his disability as 10% and the said doctor was examined before the Tribunal, the Tribunal only adopted a disability of 6% for assessment purpose. The submission is that the percentage of disability certified should have been accepted by the Tribunal. We have perused the disability certificate as well as the award to see what was the reason for not adopting the said 10% disability. The Tribunal opined that the evidence of the doctor revealed that all the fractures are united and it is also apparent that the appellant was not available for examination. For the said reason, the Tribunal considered only 6% disability for the assessment purpose. There is force in the reason stated by the Tribunal. Under such circumstances, when cogent reason is given for not accepting the whole certified disability, we feel that there is nothing to interfere with the said finding of the Tribunal. M.A.C.A.Nos.1187, 1199, 1200 and 1298 of 2012 19 We have also perused the schedule attached to the award to see whether on any other head interference is warranted. We have already found that the income of the appellant can be taken as Rs.7,000/- per month. Thus, towards loss of earning during treatment period, the appellant will be entitled to get an additional compensation of Rs.6,000/-. Apart from the same, towards damage to clothing a sum of Rs.500/- is awarded. In this case the Tribunal awarded only an amount of Rs.5,000/- towards loss of amenities and convenience. Surely, as evident from the wound certificate, there is comminuted fracture on scapula area. Thus, considering the place of injury and further keeping in mind that it caused a permanent disability of 6%, an additional sum of Rs.5,000/- is awarded towards loss of amenities and convenience. The compensation for continuing permanent disability is reassessed adopting a monthly income of Rs.7,000/-. Thus the appellant will be entitled to get an additional compensation of Rs.21,600/- on this head. Thus, appellant is entitled to get an additional compensation of M.A.C.A.Nos.1187, 1199, 1200 and 1298 of 2012 20 Rs.33,100/- (Rupees thirty three thousand one hundred only). The said amount is awarded. The additional compensation awarded in all these appeals will carry interest at the rate of 8% per annum from the date of petition till realisation. The third respondent insurer is directed to deposit the said amount along with interest thereon within a period of three months from the date of receipt of a copy of this judgment. There will be no order as to costs. Sd/- **C.T. RAVIKUMAR** **JUDGE** Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/