Muneer K. v. Bindu Anand and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR &** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY, THE 18TH DAY OF DECEMBER 2017 / 27TH AGRAHAYANA, 1939** ## **MACA.No. 947 of 2014** **AGAINST THE AWARD IN OPMV 96/2012 of M.A.C.T.,KOZHIKODE DATED 02-07-2013** ## **APPELLANT(S)/APPELLANT/PETITIONER:** **---------------------------------** **MUNEER K., S/O.SAIDALAVI(LATE), AGED 21 YEARS, RESIDING AT KULATHIL NEERKKATTU POTTA P.O, PUTHUKODE,MALAPPURAM-673 633.** **BY ADV.SRI.AVM.SALAHUDIN** ## **RESPONDENT(S)/RESPONDENTS/RESPONDENTS:** **--------------------------------------** **1. BINDU ANAND, W/O.ANAND KUAMAR AGE NOT KNOWN, RESIDIING AT JAY RAM,** - **38/1209 B.P.O EDAKKAD, KOZHIKOPDE-673 003.** **2. ANAND KUMAR,** **S/O.JAYARAMAN,AGED 47 YEARS, RESIDING AT JAY RAM,** - **38/1209 B.P.O., EDAKKAD,KOZHIKOPDE-673 003** **3. MUHASIN,** **S/O.MOYIYUDHEEN, AGE 23 YEARS,** **RESIDING AT KOLATHIL NEERADUPOTTA HOUSE,** **P.O. PUTHUKKAD, VAZHAYOOR, ERNAD, MALAPPURAM-673 633.** **4. THE NEW INSURANCE COMPANY LIMITED,DIVL. OFFICE,** - **SILVER PLAZA BUILDING, I.G ROAD,KOZHIKODE-673 001.** **R4 BY ADV. SMT.JESSY GEORGE, SC.** **R1 TO R3 BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SKK/180518** ## C.T. RAVIKUMAR & MARY JOSEPH, JJ. ========================= M.A.C.A. No.947 of 2014 ========================= Dated this the 18[th] day of December, 2017 ## J U D G M E N T ## C. T. Ravikumar, J. This appeal, seeking enhancement of the quantum of compensation is filed by the injured petitioner in OP(MV) No.96/2012 on the files of the Principal Motor Accidents Claims Tribunal, Kozhikode. As per the impugned judgment as against a claim of `2,56,000/- the Tribunal has granted an amount of `70,931/- as compensation with interest at the rate of 8% p.a. from the date of petition till date of deposit. 2. The contention of the petitioner is that the monthly income fixed by the Tribunal for calculation purpose is too low and the Tribunal has also erred in fixing the period for granting compensation for loss of earnings. The further contention is that compensation granted under the heads pain and sufferings, loss of M.A.C.A. No.947 of 2014 2 amenities, transportation to hospital, damages to clothing are also on the lower side. 3. The accident in question had occurred while the appellant was travelling as a pillion rider on a motor cycle bearing Regn. No.KL10 AB 9035. It was being ridden by the third respondent. In fact, he was also the owner of the said motor cycle. At the place of accident the said motor cycle collided with the car bearing Regn. No.KL-11 AA 3174, driven by the second respondent. After evaluating the evidence on record, the Tribunal had arrived at the conclusion and finding that the cause of the accident is the composite negligence on the part of the second and third respondents who are respectively the driver of the car and the rider of the motor cycle. The motor cycle in question was insured with the fourth respondent and admittedly it was having a valid insurance coverage at the time of the accident. The Tribunal found that the car driven by the second respondent was not having any valid insurance coverage and the first respondent was M.A.C.A. No.947 of 2014 3 the owner of the said vehicle at the time of the accident. The Tribunal thereupon, mulcted the liability on the first and third respondent. Since there was no valid insurance coverage for the car involved in the accident the first respondent being the owner was held liable evidently, in the light of the provisions under Section 5 of the M V Act. Since the motor cycle was insured with the fourth respondent the fourth respondent was directed to indemnify the third respondent, the insured owner of the motor cycle. 4. We have heard the learned counsel for the appellant and also the learned counsel for the 4[th] respondent Insurance Company. Despite the service of notice on respondents 1 to 3 they have not chosen to enter appearance and to contest the matter. 5. As regards the grievance relating fixation of the monthly income, it is to be noted that the averment of the appellant in the claim petition was that he was earning `10,000/- per month as an electrician. At the same time, it is a fact that he had not adduced any M.A.C.A. No.947 of 2014 4 evidence to establish that he was a qualified electrician. That apart, no oral or documentary evidence was adduced by him to establish his occupation and income. In such circumstances, the Tribunal cannot be found fault within in fixing the monthly income of the appellant notionally. But the question is whether the fixation of the monthly income as `4,000/- invites interference. The appellant was aged 25 years at the time of the accident and the accident in question had occurred on 09.09.2010. We are of the considered view that in such circumstances in the matter of fixation of the monthly income the decision of the Apex Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd. [2011(13)SCC 236] can act as guidance. In that decision, in respect of a coolie who suffered an accident in the year 2004, the Hon'ble Apex Court had fixed the monthly income notionally as `4,500/- Evidently, the accident in question occurred about six years since the accident involved in Ramachandrappa'' s case. In such circumstances, we are of the view that M.A.C.A. No.947 of 2014 5 it is only reasonable to fix the monthly income notionally as `8,000/-. It is so fixed. 6. The appellant is also having a grievance regarding the assessment of permanent disability. It is contended by the learned counsel appearing for the appellant that the Tribunal had gone wrong in not accepting and acting upon Ext.A4 Disability Certificate. At the same time, the fact is that Ext.A4 is a certificate issued by an individual Doctor. The doctor who issued the same was not examined before the Tribunal. It is also relevant to note that the Tribunal had observed that even the petitioner was not available to prove disability. Taking into account all such circumstances, we do not find any fault with the Tribunal in not accepting and acting upon Ext.A4. In spite of such circumstances, the Tribunal had taken 5% permanent disability for calculating compensation. None of the respondents filed independent appeal against the award impugned in this appeal and they have also failed to take any cross-objection in M.A.C.A. No.947 of 2014 6 this appeal. As regards the appellant, in the circumstances mentioned hereinbefore, he does not have any legal right to raise further grievance against the said assessment of permanent disability. In short, a re-assessment of compensation for permanent disability is required only by substituting the refixed monthly income. On such re-assessment, the appellant is entitled to get an additional compensation of `43,200/- [(8,000x12x18x5/100)-43,200]. For the purpose of calculating compensation for loss of earnings, the Tribunal had virtually fixed the period as 2 months and granted an amount of `8000/- thereunder. True that there is a typographical error in the schedule of compensation. Instead of 2 months the period has been noted therein 8 months. In that context it is relevant to refer to the injuries sustained by the appellant in the accident. Going by Ext.A2, he sustained fracture lateral malleolus with right ankle subluxation, abrasion left thigh and abrasion forearm. Taking into account the nature of the injuries and also the fact that the M.A.C.A. No.947 of 2014 7 Tribunal itself had taken it resulted in 5% permanent disability, we are of the view that the period for calculating compensation for loss of earning can be taken as 4 months. It is taken accordingly. In the light of the refixed monthly income as also the period of loss of earning the appellant is entitled to get an amount of `32,000/towards compensation for loss of earning. The Tribunal had already granted an amount of `8,000/- thereunder. Hence, the appellant is entitled to get an additional compensation of `24,000/- thereunder. Towards pain and suffering, the Tribunal had granted an amount of 10,000/- We have already adverted to the injuries and the nature of the injuries sustained by the appellant in the accident. Evidently, the appellant must have endured excruciating owing to such injuries. In such circumstances, we are inclined to grant an amount of `10,000/more thereunder. Towards loss of amenities, the Tribunal had granted an amount of `5,000/- The nature of the injuries, their impact and the period of discomfort would constrain us to hold that M.A.C.A. No.947 of 2014 8 he must have been deprived of enjoyment of life for a long period. Hence, we are inclined to grant an amount of `5,000/- towards loss of amenities. Towards transportation expenses and damage to clothing the Tribunal has granted `500/- each. Since there was a fracture, indisputably the appellant must have further review after the initial admission and discharge. The nature of the injuries would suggest that the dresses worn by him at the time of the accident must have been spoiled. In such circumstances, we are inclined to grant `500/- each, additionally towards transportation to hospital and damages to clothing. 6. In the light of the discussion as above, the appellant is entitled to get an additional compensation of `83,200/- It is granted. The said additional compensation will carry interest at the rate of 8% per annum from the date of the petition till realisation. Since we have not interfered with the finding of the Tribunal that the first and fourth respondents have to deposit the amount of M.A.C.A. No.947 of 2014 9 compensation, we direct the first and fourth respondents to deposit the additional compensation in the same proportion as has been held by the Tribunal, within a period of two months from the date of receipt of a copy of this judgment. In the result the MACA stands disposed of as above. No order as to costs. Sd/- C.T. RAVIKUMAR, JUDGE Sd/- MARY JOSEPH, JUDGE //TRUE COPY// P.A. TO JUDGE SKK