Muhammed Rafee P.K.S. vs P.K. Subramanian Nair and National Insurance Co. Ltd.

MACA NO. 1481 of 2010 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 9[TH] DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943 MACA NO. 1481 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 904/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE, KOZHIKODE APPELLANT/S:** MUHAMMED RAFEEK P.K.S/O.LATE KHADER AGED 27,RESIDING AT AFA NIVAS,, KUNDATTIL HOUSE,KARUVANTHURUTHIL POST,, FEROKE,KOZHIKODE. BY ADVS. SRI.K.SHIBILI NAHA SMT.A.LOWSY ## **RESPONDENT/S:** 1 P.K.SUBRAMANIAN NAIR , S/O KUNHAPILLA, RESIDING AT GESENT BUILDING,MEENCHANTHA,, KOZHIKODE,(OWNER OF BUS BEARING NO.KL.11.H/3497) 2 NATIONAL INSURANCE CO.LTD P.B.NO.811,NOOR COMPLEX,, MAVOOR ROAD,KOZHIKODE. BY ADVS. SMT.DEEPA GEORGE SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1481 of 2010 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.904/2004 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikkode. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 16.02.2004. It was his case that, on the above said date, while he was riding his motor cycle bearing registration No.KL-11N 5609 from Cheruvannur to Feroke, when he reached near the Ferok old bridge, a bus bearing registration No.KL-11H 3497(bus), driven by its driver in a rash and negligent manner, hit the motor cycle of the appellant. The appellant sustained serious injuries and was treated at three hospitals spanning 90 days in three different spells. The bus was owned by the 1[st] respondent and insured with the 2[nd] respondent. The appellant was a sales executive in a mobile phone retail shop and earning a MACA NO. 1481 of 2010 3 monthly income of Rs.8,000/-. The appellant has become permanently disabled. Hence, the appellant claimed a compensation of Rs.5,00,000/- from the respondents. 3. The 1[st] respondent did not contest the proceedings and was set ex-parte. 4. The 2[nd] respondent had filed a written statement admitting that the bus had a valid insurance coverage. However, the 2[nd] respondent disputed the age, income and occupation of the appellant. 5. The appellant was examined as PW1 and Exts.A1 to A10 were marked in evidence. The disability certificate issued by the Medical Board was marked as Ext.C1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover an amount of Rs.3,47,498/- with interest and cost of Rs.1,000 from the 2[nd] respondent. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard Sri.K. Shibili Naha, the learned counsel 4 MACA NO. 1481 of 2010 appearing for the appellant/petitioner and Smt. Deepa George, the learned counsel appearing for the 2[nd] respondent/insurer. 9. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and Liability** 10. Ext.A3 final report filed by the Police proves the fact that the accident occurred due to the negligence of the driver of the bus. Admittedly, the 1[st] respondent was the owner and the 2[nd] respondent was the insurer of the bus. The 2[nd] respondent has admitted that the bus had a valid insurance coverage and has not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 2[nd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 11. The appellant had claimed that he was a sales executive in a private concern doing business in sale of 5 MACA NO. 1481 of 2010 mobile phones. The appellant had produced Ext.A5 salary certificate to substantiate that he was earning a monthly salary of Rs.8,000/-. However, the appellant did not examine the author of said certificate. Therefore, the Tribunal declined to accept Ext.A5 and fixed the notional monthly income of the appellant at Rs.2,500/-. 12. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd.** : (2011) 13 SCC 236, the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2004, I hold that the monthly notional income of the appellant can safely be fixed at Rs.4,500/-. ## **Loss of earnings** 14. It is proved by Ext.A2 wound certificate and Ext.C1 disability certificate issued by a duly constituted Medical Board that the appellant had sustained serious injuries 6 MACA NO. 1481 of 2010 including fracture of both bones of his right L1, multiple hemorrhage, fracture of the lateral wall of the left orbit extending to the root and hemorrhage contusion cerebral edema. 15. Considering the nature of the injuries that the appellant had sustained, I hold that the appellant was indisposed for a period of six months. 16. In view of the refixation of the notional monthly income of the appellant at Rs.4,500/- per month, I award the appellant an amount of Rs.27,000/- towards 'loss of earnings', instead of Rs.5,000/- awarded by the Tribunal. ## **Loss due to disability** 17. As already observed, the appellant has sustained serious injuries as reflected in Ext.A2 wound certificate. The appellant's disability was assessed by a three member Medical Board under the Medical College Hospital, Calicut. The Medical Board has certified that the appellant has a permanent disability of 40% and occupational disability of 75%. 18. On a consideration of the fact that the appellant MACA NO. 1481 of 2010 7 was employed as sales executive and that he was aged only 21 years, and following the ratio in **Raj Kumar vs. Ajay Kumar** : [2011 (1) KLT 620], I fix the appellant’s functional disability at 40% as found by the Medical Board in Ext.C1. 19. The appellant was aged 21 years at the time of the accident. In the light of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** : [2010 (2) KLT 802], the relevant multiplier is '18'. 20. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.4,500/-, the multiplier at 18, his functional disability at 40%, I award the appellant compensation for 'loss due to disability' at Rs.3,88,800/-, instead of Rs.2,04,000/- awarded by the Tribunal. ## **Bystander expenses and extra nourishment** 21. The appellant was treated as inpatient for a period of 90 days in three hospitals. The Tribunal has awarded an amount of Rs.2,500/- towards bystander expenses, which is too meagre. Likewise, the Tribunal has not awarded any amount for extra nourishment. MACA NO. 1481 of 2010 8 22. In the aforesaid circumstances, I award the appellant an amount of Rs.250/- per day for a period of 90 days as 'bystander expenses' which amount to Rs.22,500/-. Similarly I award the appellant an amount of Rs.150/- per day for 90 days towards 'extra nourishment' which amounts to Rs.13,500/-. ## **Loss of amenities** 23. The Tribunal has not awarded any amount as compensation for loss of amenities. 24. Taking into account the fact that the appellant was treated as inpatient for a period of 90 days, that he was indisposed for a period of six months and that he has sustained a functional disability at 40%, I hold that the appellant is entitled for 'loss of amenities' at Rs.20,000/-. ## **Transportation expenses** 25. The appellant had claimed an amount of Rs.7,500/towards transportation expenses in the claim petition. Keeping in mind the fact that the appellant was treated at three hospitals spanning a period of 90 days, I hold that he is entitled for 'transportation expenses' at Rs.7,500/- as MACA NO. 1481 of 2010 9 claimed in the claim petition. 26. With respect to the other heads of compensation, I hold that the Tribunal has awarded reasonable and just compensation. 27. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. **==> picture [436 x 308] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>No. awarded by awarded by<br>the Tribunal this Court<br>(in Rs.) (in Rs.)<br>1. Loss of earnings 5,000 27,000<br> 2. Transportation expenses 500 7,500<br>3. Damage to clothing 250 250<br>4. Bystander expenses 2,500 22,500<br>5. Extra nourishment 0 13,500<br>6. Medical expenses 1,16,998 1,16,998<br>7. Pain and sufferings 18,000 18000<br>**----- End of picture text -----**<br> MACA NO. 1481 of 2010 10 **==> picture [436 x 103] intentionally omitted <==** **----- Start of picture text -----**<br> 8. Loss of amenities 0 20,000<br>9. Loss due to disability 2,04,000 388800<br>Total 347498 614548<br>**----- End of picture text -----**<br> 28. Even though the appellant had claimed only an amount of Rs.5,00,000/-, as compensation, considering the serious nature of injuries that he had sustained and following the multiplier method as laid down in **Sarla Verma** (supra) and **Pappu Deo Yadav vs. Naresh Kumar and others :** 2020 (5) KLT 1108 **,** I award the appellant is entitled to more compensation than what is claimed in the claim petition. The said course is permissible in view of the law laid down in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 (SC)] and **Rajesh vs. Rajbir Sing** [2013 (3) KLT 89 (SC)]. In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.2,67,050/- with interest @ 7% per annum from the date of petition till the date of deposit, after deducting interest for a period of 45 days as ordered by this Court on 15.09.2021 in CM MACA NO. 1481 of 2010 **==> picture [12 x 9] intentionally omitted <==** Appl.No.1/2010, and a cost of Rs.15,000/-. The 2[nd] respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within period of 60 days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant, after deducting liability, if any, towards court fee, and in accordance with law. Sd/- **C.S.DIAS, JUDGE** rkc