Muhammedali v. Sadique Ali and National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 10[TH] DAY OF JANUARY 2022 / 20TH POUSHA, 1943** ## **MACA NO. 3037 OF 2009** **AGAINST THE AWARD DATED 25.03.2009 IN OPMV 2000/2005 OF II** ## **ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER:** MUHAMMEDALI, AGED 24 YEARAS S/O. KUNHALIKOYA, KALKANDI HOUSE,, MAYANAD, PAINGOTTUPURAM DESOM,, P.O. KUNNAMANGALAM, KOZHIKODE TALUK. BY ADVS. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH ## **RESPONDENTS/RESPONDENTS:** 1 SADIQUE ALI , AGE NOT KNOWN PARTNER, M/S. FEROKE AGENCIES, 20/212 H, KALLAI HEIGHTS, KALLAI, KOZHIKODE - 673 003. 2 NATIONAL INSURANCE CO. LTD. NOOR COMPLEX, MAVOOR ROAD,, KOZHIKODE -4. BY ADV SMT.SARAH SALVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **MACA NO. 3037 OF 2009 2** ## **Dated this the 10[th] day of January, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.2000/2005 on the file of the II Additional Motor Accidents Claims Tribunal, Kozhikode. 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 19.04.2004. It was his case that, on the aforesaid date, while he was riding his motorcycle bearing registration No. KL-11-S-1852 along the Kallai railway station road, a mini lorry bearing registration No. KL- 11 C – 8713 (lorry), driven by the first respondent in a rash and negligent manner, hit the motorcycle of the appellant. The appellant was thrown on the road and sustained serious injuries. He was treated at the Medical College Hospital, Kozhikode and at the Kasthurba ## **MACA NO. 3037 OF 2009 3** Hospital, Manipal for a period of 23 days in four spells. The appellant was a coolie worker by profession and earning a monthly income of Rs.3000/. The lorry was also owned by the first respondent and insured with the second respondent. Hence, the appellant claimed a compensation of Rs.2,89,000/- from the respondents, which claim was limited to Rs.2,00,000/-. 3. The first respondent did not contest the proceeding. 4. The second respondent had filed a written statement admitting that the lorry had a valid insurance The coverage. second respondent disputed the age, income and occupation of the appellant. It is also contended that the compensation claimed was excessive. 5. The appellant got himself examined as PW1 and marked Exhibits A1 to A9 in evidence. The disability certificate issued by the Medical Board was marked as Exhibit X1. The respondents did not let in any evidence. ## **MACA NO. 3037 OF 2009 4** 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the second respondent an amount of Rs.66,032/- with interest and a cost of Rs.300/-. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri. Jacob Abraham, the learned counsel appearing for the appellant/petitioner and Smt. Sarah Selvi,the learned counsel appearing for the second respondent/insurer. 9. The point that emanates for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and Liability** 10. Exhibit A1 FIR and Exhibit A2 Scene mahazar substantiates that the accident occurred due to the negligence of the first respondent. Admittedly, the second **MACA NO. 3037 OF 2009 5** respondent was the insurer of the lorry. The respondents have not let in any evidence to controvert the assertions in the claim petition or Exhibits A1 and A2. Therefore, the second respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 11. The appellant had claimed that he was a coolie worker by profession and earning a monthly income of Rs.3000/-. The Tribunal, for the reason that the appellant had not sustained any loss of earnings, did not fix the income of the appellant. Instead, the Tribunal awarded an amount of Rs.66,032/- under different heads, including pain and sufferings and loss of amenities. The course adopted by the Tribunal is erroneous and wrong. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year ## **MACA NO. 3037 OF 2009 6** 2004 at Rs. 4500/- per month. 13. Following the yardstick in the afore-cited decisions and considering the fact that the accident occurred in the year 2004, and that the appellant had claimed that he was earning a monthly income at Rs.3000/-, I fix the notional monthly income of the appellant at Rs.3000/-. ## **Loss of earnings** 14. It is proved through Exhibit A4 wound certificate and Exhibit X1 disability certificate issued by the Medical Board, that the appellant had suffered a bicondylar fracture of the tibia with post traumatic stiffness of his right knee. He was treated as an inpatient for a period of 23 days in four spells spanning from 19.04.2004 to 09.08.2006. Therefore, I hold that the appellant was indisposed for a period of four months. 15. In view of the fixation of the notional monthly income of the appellant Rs.3000/-, I award him an **MACA NO. 3037 OF 2009 7** amount of Rs.12,000/- under the head ‘loss of earnings’ **Disability** 16. The appellant was referred to a duly constituted Medical Board attached to the Medical College, Kozhikode. The Medical Board had found that as the appellant had suffered a bicondylar fracture of the tibia with post traumatic stiffness of his right knee and has a permanent disability of 5%. Subsequently, the appellant got himself examined by the Assistant Professor of the Department of the Orthopedic of the Kasthurba Hospital, Manipal, who issued Exhibit A6, wherein it is stated that the appellant has a disability of 23% to his left lower limp. 17. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable supreme Court has categorically held that what needs to be looked into in a case of injury, is the functional disability of the injured/claimant. Similarly it is observed that if the Tribunal is not satisfied with the disability certificate produced before it, the ## **MACA NO. 3037 OF 2009 8** Tribunal has to refer the injured/claimant to a duly constituted Medical Board. 18. In the instant case, on the direction of the Tribunal, the appellant was referred to a duly constituted Medical Board attached to the Medical College Hospital, Kozhikode, who has certified that the appellant has 5% permanent disability. The Tribunal, for the reason that the appellant has no occupational disability, declined to grant any amount towards loss due to disability. The procedure adopted by the Tribunal is patently wrong and liable to be set aside. 19. Following the ratio in **Raj Kumar’s case** (supra), and considering the fact that the appellant was a coolie worker by profession, I fix the appellant’s functional disability at 5% as certified in Exhibit X1. ## **Loss due to disability** 20. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at ## **MACA NO. 3037 OF 2009 9** Rs.3000/-, his functional disability at 5% and considering the fact that the appellant was aged 24 years at the time of his accident and the relevant multiplier being ‘18’, I award him an amount of Rs.32,400/- towards ‘loss due to disability’. ## **Transportation expenses** 21. It can be gathered from Exhibits A5 and A6 treatment records that the appellant was treated at the Kasthurba Hospital, Manipal. The appellant is a permanent resident of Kozhikode. He had travelled on three occasion to Manipal. Therefore, I award the appellant a further amount of Rs.5000/- under the head ‘transportation expenses.’ **- By stander expenses and extra nourishment** 22. The Tribunal has awarded the appellant an amount of Rs.2,200/- towards ‘by-stander expenses’ and Rs.1000/- towards ‘extra nourishment’. I find the above amounts to be on the lower side. ## **MACA NO. 3037 OF 2009 10** 23. Taking note of the fact that the appellant was treated as an inpatient for a period of 23 days in four spells, I award the appellant an amount of Rs.250/- per day for a period of 23 days towards’ by-stander expenses’, which works out to Rs.5750/- and Rs.150/- per day for a period of 23 days towards ‘extra nourishment’, which works out to Rs.3450/-, instead of Rs.2200/- and Rs.1000/awarded by the Tribunal under the aforesaid heads. ## **Pain and sufferings** 24. The appellant had sustained a bicondylar fracture of the tibia and that he was indisposed for a period of four months. The appellant was treated as an inpatient for a period of 23 days in four spells. Therefore, I award the appellant a further amount of Rs.7000/- under the head pain and sufferings. 25. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. ## **MACA NO. 3037 OF 2009 11** 26. On an over all re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount awarded<br>(in rupees)|Amounts<br>modifed and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings|0|12000| |2|Transportation|5000|10000| |3|Damage to clothing|750|500| |4|By-stander expenses|2200|5750| |5|Extra nourishment|1000|3450| |6|Medical expenses|34082|34082| |7|Pain and suferings|13000|20000| |8|Loss of amenities|10000|10000| |9|Loss due to disability|0|32400| ||Total|66032|128182| In the result the appeal is allowed in part, by ## **MACA NO. 3037 OF 2009 12** enhancing the compensation by a further amount of Rs.62,150/- with interest at the rate of 7% per annum from the date of petition till the date of deposit, after deducting interest for a period of 110 days i.e, the period of delay in filing the appeal and as ordered by this Court on 07.10.2021 in C.M.Application No. 1/2009, and a cost of Rs.10000/-. The second respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the compensation amount to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** rmm10/01/2022