Muhammedali v. Ali @ Alippu Haji & United India Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **FRIDAY, THE 1[ST] DAY OF JULY 2022 / 10TH ASHADHA, 1944** ## **M.A.C.A. NO.289 OF 2012** **AGAINST THE AWARD DATED 8.6.2011 IN OPMV 1121/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM)** ## **APPELLANT/PETITIONER:** MUHAMMEDALI, S/O.MOIDU, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER HIS MOTHER RUKKIYA, W/O. MOIDU, RESIDING AT NEDUNHOTTIL HOUSE, MULAYANKAVU P.O., KULUKKALLOOR, PALAKKAD DISTRICT. BY ADVS. SRI.T.C. SURESH MENON SRI.P.S. APPU SRI.A.R. NIMOD ## **RESPONDENTS/RESPONDENTS::** 1 ALI @ ALIPPU HAJI, S/O. HAMZA HAJI, RESIDING AT THEEYYATTIL HOUSE, CHERUKODE, VALLAPPUZHA, PALAKKAD DISTRICT-679 336. 2 UNITED INDIA INSURANCE COMPANY LIMITED, FAIZAL BUILDING, MAIN ROAD, OTTAPALAM, PALAKKAD-679 101. BY ADV SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.06.2022, THE COURT ON 01.07.2022 DELIVERED THE FOLLOWING: _MACA No.289 of 2012_ 2 ## **JUDGMENT** (Dated: 1[st] July, 2022) Aggrieved by the quantum of compensation awarded in O.P.(M.V.) No.1121 of 2008 by the Motor Accidents Claims Tribunal, Ottapalam, the appellant/petitioner has filed this appeal (the parties are referred to as they are arrayed in the petition). 2. The original petition was filed under Section 166 of the M.V. Act, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 16.09.2008 at about 11.45 a.m., infront of Abhaya Agathi Mandiram. The appellant/petitioner was traveling in a motorcycle bearing Reg.No.KL-52/A-807 from Koppam Junction to Pattambi on Koppam – Pattambi road. A jeep _MACA No.289 of 2012_ 3 bearing Reg.No.KL-10/C-2417 came from the left side of the road and hit the motorcycle, in which the petitioner was traveling. As a result of the hit, the petitioner fell down and sustained severe injuries. He was taken to Koppam Hospital, for first aid and thereafter referred to Al-Shifa Hospital, Perinthalmanna, and was treated as an inpatient for few days. The petitioner claimed a total compensation of Rs.5,00,000/- on various accounts. 3. The 2[nd] respondent/insurance company alone filed a written statement denying the negligence attributed against the driver of the jeep. It was also contended that the accident happened due to the rash and negligent driving of the motorcycle, hence the rider, owner and insurer of the motorcycle are necessary parties to the petition and since _MACA No.289 of 2012_ 4 there is a non-joinder of necessary parties, the same has been dismissed. The amount of compensation claimed is very excessive. The validity of the insurance was admitted by the 3[rd] respondent/insurance company at the time of the accident. The Tribunal passed an award in favour of the petitioner for an amount of Rs.1,49,790/-, along with interest at 8% per annum from the date of petition till realisation. 4. The main contention raised in this appeal is that the appellant/petitioner was employed in Gulf and earning an amount of Rs.25,000/- per month. As per the petition, the Tribunal has taken only Rs.3,000/- as monthly income. Moreover, though Ext.A10 disability certificate was issued by PW2, the Doctor who assessed him and certified that the _MACA No.289 of 2012_ 5 disability of the appellant/petitioner is 24%, the Tribunal without any reason brought down the same to 6% and calculated the disability compensation. As far as the loss of amenities in life is concerned, only Rs.5,000/- was awarded against the claim of Rs.50,000/-, thus prayed for enhancement of compensation. 5. The counsel for the insurance company contended that though the appellant claims to be employed in Gulf and earned Rs.25,000/- per month, no documentary evidence is produced before the Tribunal for taking the income as Rs.25,000/-. In the absence of the same, the Tribunal was justified in taking Rs.3,000/- being a reasonable amount as the monthly salary of the appellant/petitioner. The injuries noted are not of serious nature, though the disability _MACA No.289 of 2012_ 6 certificate certified 24% permanent disability, taking into consideration the injuries and the disabilities stated in Ext.A10, the Tribunal was justified in scaling down the personal disability to 6%, hence prayed that no interference is warranted to the order of the Tribunal. 6. Ext.A10 disability certificate shows that the petitioner sustained the following injuries: _“Bimalleolar fracture(L) ankle, comminuted with volar barton fracture (R) radius, unstable fracture dislocation (L) elbow with comminuted fracture coronoid..”._ 7. The injuries sustained are fractures bimalleolar (L) ankle and fracture (R) radius. It is true that he was admitted as an inpatient and underwent treatment from 16.09.2008 till 30.09.2008. The appellant/petitioner was aged 41 years at the time of the accident. According to the _MACA No.289 of 2012_ 7 appellant/petitioner he was employed in Gulf and earning Rs.25,000/- per month, but he does not disclose the details of his job nor produced any document to prove the said income. Going by the decision reported in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited (2011 (13) SCC 236)**_ , for an accident which occurred in the year 2008, the notional income to be taken is Rs.6,500/-. Though he has submitted that he is employed in Gulf, he has not even produced his passport to show that he was employed there. In the absence of the same, only notional income as stated in the decision mentioned above can be taken. As far as the disability is concerned, though Ext.A10 disability certificate issued by the Doctor who treated him certified _MACA No.289 of 2012_ 8 that the disability is 24%, and he was examined as PW2. Ext.A10 disability certificate certifies that the Doctor assessed whole body disability of 24%. The injuries are the fracture of bimalleolar (L) ankle and fracture of (R) radius. Ext.B10 shows that the combined value of disability according to Mc Bride Scale is 24% whole body disability. The functional disability may be less or more than the whole-body disability. The same has to be assessed independently in each case taking note of the injuries sustained as well as the job of the petitioner. The petitioner has not disclosed the job he was doing. In the absence of the same, functional disability cannot be taken as 24% certified by the Doctor. It is true that the injuries had caused disability to him going by the disability certificate. _MACA No.289 of 2012_ 9 8. The counsel for the appellant/petitioner submits that the Tribunal has erred in not taking future prospects while calculating the disability compensation. He relied on the decision reported in _**Syed Sadiq and others v. Divisional manager, United India Insurance Company Ltd. (2014 ACJ 627)** ,_ to content for the proposition that future prospects have to be awarded as he sustained serious injuries. In the said decision, the Apex Court noted that claimant therein had a disability of 25% to the upper limb and 85% to the lower limb and hence determined that the petitioner is entitled to 5% increment in the future prospects. The counsel also relied on another decision of the _**Erudhaya Priya v. State Express Transport Corporation Limited (CDJ 2020 SC 622)**_ . The facts of the _MACA No.289 of 2012_ 10 case reveal that the petitioner had suffered fractures in her arms and legs and suffered a disability of 31.1% of her whole body and she was admitted to hospital for 8 months. The appellant was aged 23 years and was a software engineer. The disability certificate also showed that she was hospitalised on 8 occasions for number of days over 1½ year from August 2011 to January 2013. The injuries were: “(i) compound fracture shaft left humerus (ii) fracture both bones left forearm (iii) compound fracture both bones right forearm (iv) fracture 3rd, 4th & 5th metacarpals right hand (v) subtrochanteric fracture right femur (vi) fracture shaft left femur (vii) fracture both bones left leg" Taking note of this, the Apex Court had granted 50% as future prospects. _MACA No.289 of 2012_ 11 9. In the decision reported in _**Vijay Kumar Rastogi v. Uttar Pradesh State Roadways Transport Corporation (CDJ 2018 SC 218)**_ , the petitioner sustained haemorrhage, multiple fracture all over the body, and post-traumatic optic neuropathy, whereby his disability was assessed as 25%. Taking note of the above facts and the petitioner being aged 36 years, working as a medical representative held that the extent of disability of 25% in relation to his lower limb and keeping in mind that the age of the appellant was only 36 and considering his avocation, has awarded 40% escalation as future prospects. 10. In the present case, the appellant/petitioner has sustained only fracture bimalleolar (L) ankle and fracture (R ) radius. The decisions mentioned above do not apply to _MACA No.289 of 2012_ 12 the facts of this case, as the injury sustained in those cases were grave nature and the disability was much higher. PW2 the Doctor who issued Ext.P10 has assessed a whole body disability of 24%. The injuries are fracture bimalleolar (L) ankle and fracture (R) radius. In the absence of any evidence to prove that the disability has reduced his income after the accident and taking note of the injuries, I am of the opinion that the claim for future prospects cannot be awarded in this case. On a consideration of the entire facts and circumstances of the case, especially taking note of Ext.P10, I am of the considered opinion that the percentage of disability can be fixed at 15%. Since the petitioner/appellant was aged 41 years, the multiplier to be _MACA No.289 of 2012_ 13 taken is 14, hence the disability compensation can be worked out as 6500 x 12 x 14 x 15/100 = 1,63,800. 11. As far as loss of amenities is concerned, though he claimed Rs.50,000/-, Rs.5,000/- was awarded by the Tribunal. It is seen that there is a severe flexion deformity of the left elbow and loss of range of movement on the right forearm and wrist. There was a maluniting fracture ® distal radius with implant and malunited fracture coronoid extending into(L) elbow joint. Maluniting bimalleolar fracture (L) ankle is also proved by the disability certificate. Taking into consideration of these facts, the amount awarded by the Tribunal in respect of the head loss of amenities in life is on the lower side, hence the same is enhanced to Rs.25,000/-. _MACA No.289 of 2012_ 14 ## Accordingly, the following enhancements are made to the ## award passed by the Tribunal: |Sl.<br>No.|Head of Claim|Amt. Awarded<br>by Tribunal (Rs.)|Amt.<br>Enhanced in<br>appeal(Rs.)| |---|---|---|---| |1.|Loss of amenities|5,000/-|25,000/-| |2.|Permanent disability<br>resulting in oss of<br>earning power|30,240/-|1,63,800/-| ||Total|35,240/-|1,88,800/-| ||Amount enhanced –|= 1,88,800- 35,240 =**1,53,560/-**|| In the result, the appeal is allowed, and the Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amounts at the rate of 8% from the date of the petition. If any amounts have already been paid, the same shall be granted set off. The appellant/petitioner shall _MACA No.289 of 2012_ 15 produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and the amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest shall run at the rate ordered by the Tribunal from the date of the petition. _Sd/-_ ## **BASANT BALAJI, JUDGE** ss