MUMTHAS MUHAMMED v. THE NATIONAL INSURANCE CO. LTD

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 24[TH] DAY OF MARCH 2023 / 3RD CHAITHRA, 1945** **CO NO. 86 OF 2015** **AGAINST THE AWARD IN OPMV 250/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR** ## **CROSS OBJECTOR/RESPONDENT IN MACA 498/2015:** MUMTHAS MUHAMMED, W/O.KOCHUMUHAMMED, MATHIAYATH HOUSE, C.C.XIII/46 PANAYAPPILLY KARA, MATTANCHERRY VILLAGE, NOW RESIDING AT MATHIYEDATH HOUSE, MAKKANAI, MANNAM P.O. PARAVUR VILLAGE, PIN-683 520 BY ADVS. SRI.REJI GEORGE SMT.ANUPAMA JOHNY SRI.N.SANTHOSH ## **RESPONDENT/APPELLANT IN MACA NO.498/2015:** THE NATIONAL INSURANCE CO. LTD KOTTAYAM, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI-35 SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.03.2023, ALONG WITH MACA.498/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CO NO. 86 OF 2015 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 24[TH] DAY OF MARCH 2023 / 3RD CHAITHRA, 1945 MACA NO. 498 OF 2015** **AGAINST THE AWARD IN OPMV 250/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR** ## **APPELLANT/2ND RESPONDENT:** THE NATIONAL INSURANCE CO. LTD KOTTAYAM, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI-35 BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI ## **RESPONDENT/CLAIMANT:** MUMTHAS MUHAMMED, W/O.KOCHUMUHAMMED, MATHIYADATH HOUSE, C.C.XIII/46 PANAYAPPILLY KARA, MATTANCHERRY VILLAGE, NOW RESIDING AT MATHIYEDATH HOUSE, MAKKANAI, MANNAM P.O. PARAVUR VILLAGE, PIN-683 520 SRI.REJI GEORGE SMT.ANUPAMA JOHNY SRI.N.SANTHOSH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.03.2023, ALONG WITH CO.86/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CO NO. 86 OF 2015 3 ## **JUDGMENT** ## **[CO Nos.86/2015, 498/2015]** This appeal and the Cross Objection emanate from the Final Award of the Motor Accidents Claims Tribunal, North Paravur, in OP(MV) No.250/2011. 2. The Cross Objector was involved in a road accident on 16.01.2011, when she was knocked down by the offending car while walking on a public road, thus sustaining very serious injuries. She had to be treated for long periods of time, including 12 days as an inpatient, and was asked to take rest for six months. She, thereupon filed the afore Original Petition seeking compensation for an amount of Rs.6,95,000/-, limited to Rs.3,00,000/-; but which has been allowed only to a sum of Rs.2,12,000/-. 3. The Insurance Company, which insured the offending vehicle, has filed the afore appeal, asserting that the compensation awarded is excessive; while the Cross Objector has filed the cross objections, seeking its escalation on the ground that it is inadequate. 4. Smt.K.S.Santhi – learned standing counsel for the Insurance Company, argued that the compensation awarded CO NO. 86 OF 2015 4 by the Tribunal under the heads 'pain and suffering' and 'loss of amenities' is egregiously improper and excessive because, as per Ext.X1 Disability Certificate, the cross objector has suffered only 2% permanent disability. She argued that the further amount granted by the Tribunal under the head 'compensation for disfiguration' is also untenable, since there is no evidence to show that any such had been suffered by the Cross Objector. She thus prayed that this appeal be allowed. 5. In refutation, Sri.N.Santhosh – learned counsel for the Cross Objector, argued that the learned Tribunal has erred in awarding compensation under the head 'permanent disability', since it did not reckon the income of his client, who was working as a tailor; and further in not awarding adequate compensation under the head 'loss of earnings' because it is on record that she was asked to take rest for six months after her period of treatment of about one month. He then added that, when one looks at the injuries sustained by his client, the compensation awarded under the heads 'pain and suffering', 'loss of amenities', 'bystanders expenses' and 'extra nourishment' is so exiguous, that it obtains no rational nexus to her agony or strain. He thus prayed that the Cross Objection be allowed and the appeal filed by the Insurance CO NO. 86 OF 2015 5 Company be dismissed. 6. I have considered the afore rival submissions on the touchstone of the evidence on record - copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that it can be acted upon by this Court without dispute. 7. When I examine the impugned Award, it is without doubt that the learned Tribunal has awarded 'compensation for permanent disability' to a consolidated sum of Rs.20,000/-. This was not proper because, the law has been well settled that such compensation must be computed taking into account the income of the injured, as also the permanent disability suffered by him or her. In this case, the Cross Objector asserts that she was working as a tailor, but there is, admittedly, no evidence to prove her income. Obviously, the Tribunal could have only reckoned her notional income, being guided by **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236], which postulates that, in the case of a person who is a “coolie”, or with an unascertainable income, in the year 2011 – when the accident occurred – the minimum income to be reckoned is Rs.8,000/-. I see no reason why this should be CO NO. 86 OF 2015 6 denied to the Cross Objector. 8. As regards the percentile of disability, there is no dispute between the parties because Ext.X1 - Certificate issued by the competent Medical Board certifies it to be 2%. 9. Coming to the medical evidence on record, particularly Ext.A3 - wound certificate, the Cross Objector had suffered fracture of both her bones of her right leg, along with injuries and swelling to her nail and other areas. 10. As I have said above, she was hospitalised for nearly 12 days and was asked to take complete rest for about six months, as is evident from the discharge summaries and the medical certificates. 11. I am, therefore, without doubt that the Cross Objector must have suffered great agony and pain, at least during the time when her bones were not united. Hence, there can be little contest that she is entitled to be compensated for 'loss of earnings', as well as to be granted slightly more amounts under the head 'extra nourishment', because the Tribunal appears to have taken only Rs.166/- as income per day for such purpose. I propose to revise it to Rs.300/- per day. 12. That said, the compensation awarded by the CO NO. 86 OF 2015 7 Tribunal under the head 'pain and suffering' and 'loss of amenities' does not require to be modified, since they are apposite and the least that could be offered to the Cross Objector. 13. Finally, as regards the compensation awarded by the Tribunal under the head 'disfiguration', though there is no specific evidence to show that the Cross Objector had suffered any such, her unimpeached testimony is to the effect that the fracture of both bones has led to the lack of form of her leg. Since this assertion of hers remains firm, I do not deem it necessary to disturb the findings of the Tribunal in this regard. In the afore circumstances, this appeal is allowed in the following manner: (a) The 'compensation for permanent disability' is revised to Rs.26,808/- from Rs.20,000/- now awarded by the Tribunal, reckoning the notional income of the Cross Objector to be Rs.8,000/- per month and her percentile of disability to be 2%, as correctly found by the learned Tribunal. The multiplier adopted is '14' which is also right as per **Sarla Verma v. Delhi Transport Corporation** [2010 (2) KLT 802 (SC)]. CO NO. 86 OF 2015 8 (b) An additional amount of Rs.56,000/- is awarded to the appellant under the head 'loss of earnings', reckoning her notional income to be Rs.8,000/- per month, for seven months of treatment and rest. (c) The compensation under the head 'extra nourishment' is enhanced to Rs.3,600/-, from Rs.2,000/granted by the Tribunal. (d) In all other respects, the Award of the Tribunal will stand intact. Needless to say, the appellant will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8% as awarded by the Tribunal, from the date of claim until it is recovered. He will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. **Sd/- DEVAN RAMACHANDRAN** **JUDGE** stu