Musthafa K. P. v. Asharaf M. and The Oriental Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 15TH DAY OF DECEMBER 2017 / 24TH AGRAHAYANA, 1939 MACA.No. 1128 of 2011 AGAINST THE AWARD IN OPMV 1741/2005 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY DATED 31-07-2010 APPELLANT/PETITIONER MUSTHAFA.K.P., S/O.MAMMAD, AGED 41 YEARS,, ANGADIPOYIL HOUSE, MANANTHERI AMSOM DESOM,, MANANTHERI P.O., KANNUR DISTRICT. BY ADV.SRI.M.SASINDRAN RESPONDENTS/RESPONDENTS: 1. ASHARAF.M, S/O.ABOOBACKER, MOTTAMMAL HOUSE,, KUTHUPARAMBA AMSOM, AMBILAD P.O.,, KUTHUPARAMBA, KANNUR DISTRICT,, (OWNER-CUM-RIDER OF MOTOR CYCLE NO.KA-01/R 4945). 2. THE ORIENTAL INSURANCE COMPANY LTD., KANNUR, (INSURER). R,R2 BY ADV. SRI.VPK.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AL/- ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** **-----------------------------------------M.A.C.A.No.1128 of 2011 ------------------------------------------Dated this the 15[th] day of December, 2017** ## **JUDGMENT** ## **MARY JOSEPH, J.** The victim of a motor accident occurred on 25.7.2005 has approached this Court seeking enhancement of the compensation. The appellant met with a motor accident at 10.30 p.m on 25.7.2005. He was a pedestrian on Koothuparamba-Kolayad road in Thalassery. The motor cycle bearing registration No.KA-01/R 4945 knocked him down due to the rash and negligent riding by its rider and thereby he sustained injuries. He was rushed to the Indira Gandhi Co-operative Hospital, Thalassery and had undergone treatment therein. He was a man aged 36 years and was working as a bus cleaner. He claimed to have a monthly income of `6,000/-. Alleging that the accident was occurred due to the rash and negligent riding of the motor cycle by its rider, a claim petition was moved as O.P.(MV)No.1741/2005 before the Motor Accidents Claims Tribunal, Thalassery seeking a compensation of `3,00,000/-. 2. The rider-cum-owner of the motor cycle was arrayed as the first respondent and its insurer, as the second respondent in the M.A.C.A. No.1128/2011 - : 2 :- claim petition filed before the Tribunal. Though the first respondent entered appearance before the Tribunal, he failed to file a written statement. The second respondent, the insurer had filed a written statement admitting insurance coverage of the motor cycle as on date of accident. 3. Before the Tribunal, the appellant had let in documentary evidence as Exts. A1 to A7. The disability certificate procured from the General Hospital, Thalassery was also marked in evidence as Ext.C1. Neither any oral nor documentary evidence was let in by the second respondent. On appreciation and evaluation of the evidence on record, the compensation payable to the appellant was assessed by the Tribunal as `67,040/-. Aggrieved by the quantum of compensation so awarded as compensation, the appellant has approached this Court seeking enhancement of the compensation by preferring the captioned appeal. The parties to this appeal are referred to hereinafter in accordance with their status in the claim petition filed before the Tribunal. 4. Sri. M.Sasindran and Sri. V.P.K.Panicker, the respective learned counsel were heard on their rival contentions on behalf of the petitioner and the second respondent. 5. Sri. M.Sasindran, the learned counsel appearing for M.A.C.A. No.1128/2011 - : 3 :- the petitioner has contended that the Tribunal failed to grant adequate compensation under various heads. According to him , though the petitioner had claimed `6,000/- as the monthly income, the Tribunal took only `3,000/-. According to him, the Tribunal failed to appreciate the fact that, with the meagre monthly income fixed by it as `3000/-, it is difficult for a man aged 36 years and maintaining a family to sustain with that, the cost of living being high. 6. It is true that the petitioner did not adduce either oral or documentary evidence to substantiate his claim that he was a bus cleaner and earning `6000/-. Therefore, in the absence of any evidence available to support the claims, the Tribunal cannot be found fault with in fixing the notional income as his monthly income. However, the Tribunal ought to have fixed the notional income reasonably by applying its mind to the age of the person and the year in which the accident was occurred. It is pertinent to note that the Tribunal has taken the age of the petitioner as 36 years. In **Ramachadrappa v. Manager, Royal Sundaram Alliance Insurance Company [AIR 2011 SC 2951] ,** the Apex Court has fixed `4,500/- as the monthly income of a coolie worker who sustained injuries in a motor accident in the year 2004, while M.A.C.A. No.1128/2011 - : 4 :- reckoning the compensation payable to him. The said case can be taken as a guideline by the Tribunal while fixing the monthly income wherein evidence to prove the monthly income is totally lacking. It can be seen that without adverting to any aspects as above, and without applying the mind that the Tribunal fixed the monthly income notionally as `3000/- and therefore, as rightly pointed out by the learned counsel for the petitioner, interference is warranted. Taking into account of the year in which the accident was occurred, there is every justification for us to fix `5000/- as the monthly income. It is disclosed from the impugned award that the Tribunal had reckoned the period for which the petitioner is entitled to get compensation for loss of earning as 4 months. In paragraph 9 of the impugned award, a description is made by the Tribunal on the basis of Exts.A2 and A3, about the nature of the injuries sustained by the petitioner and the period of inpatient treatment undergone by him. When viewed in that backdrop, the Tribunal seems to be justified in taking four months' period for computing the compensation under the head loss of earning. In our reassessment with the monthly income of `5000/- refixed by us, the compensation payable under the head loss of earning would be `20,000/-. On M.A.C.A. No.1128/2011 **==> picture [214 x 9] intentionally omitted <==** deducting `12,000/-, the sum already awarded by the Tribunal under the head, therefrom, the sum payable in addition under that head would be `8000/-. 7. The second contention of the learned counsel was that the compensation awarded by the Tribunal under the heads bystander expenses, pain and suffering and permanent disability are also on the lower side. Yet another contention was also raised to the effect that no amount was awarded under the heads extranourishment, loss of amenities and damages to clothing. 8. In this connection, it is relevant to notice that the petitioner has marked Ext.X1 in evidence. It is nothing but a certification of permanent disability of the petitioner as 4% by the Superintendent of General Hospital, Thalassery. Evidently the Tribunal had taken 4% as the permanent disability of the petitioner for the purpose of reckoning compensation under the head. The Tribunal has taken the age of the petitioner as 36 years and therefore, the multiplier of 16 adopted is correct. Therefore, there is no scope for us to interfere with that. However, in the recomputation with the refixed monthly income of `5000/-, there would be corresponding increase in the compensation payable under the head disability also. In the reassessment, by taking M.A.C.A. No.1128/2011 - : 6 :- `5000/- as the monthly income and other relevant factors as such, the total amount payable would be `36,000/- (`5000/x12x16x4/100). When `23,040/- the sum already awarded by the Tribunal is deducted therefrom, the sum payable as additional sum would be `12,960/-. As rightly put by the learned counsel, the compensation awarded by the Tribunal under the head bystander expenses and pain and suffering are on the lower side. It appears from the impugned award that the Tribunal has fixed `100/- per day for computation of compensation under the head bystander expenses. Evidently, the petitioner had undergone inpatient treatment for eight days. The year of accident being 2005, `200/- per day is a reasonable sum. Therefore, in our reassessment with `200/- for 8 days, the compensation payable under the head bystander expenses would be `1600/-. When `800/-, the sum awarded by the Tribunal as per the impugned award under the said head is deducted therefrom, the sum payable to the petitioner additionally would be `800/-. It is true that no claim was made by the petitioner for compensation under the head extra-nourishment. But, considering the nature of the injuries and the duration of the inpatient treatment, we are inclined to grant `800/- (`100/-per day for eight days) as M.A.C.A. No.1128/2011 - : 7 :- ## compensation under that head. 9. In paragraph 9 of the impugned award, the Tribunal has narrated the injuries sustained by the petitioner as follows:- “ 1) Pain and tenderness at right hip, 2) lacerated wound 3x1 cm left leg muscle deep with bleeding, 3) Small lacerated wound with bleeding occipital area, and 4) abrasion right forearm.” The description is insufficient to conclude that the petitioner had sustained a fracture. But, from the description, it is disclosed that the petitioner had undergone a surgical procedure viz., closed reduction and internal fixation. Undoubtedly, a person, who had sustained fracture alone, would be subjected to a surgical procedure as stated above. A copy of Ext.A3 discharge card was handed over across the Bar by the learned counsel for the petitioner during the course of the argument to convince us that it was only an omission on the part of the Tribunal to state about the fracture sustained by the petitioner. On a scanning of Ext.A3, the claim of the petitioner that he had sustained fracture of femur is established and we are convinced of that. In the impugned award, the Tribunal without taking note of the fact that the petitioner had sustained a fracture, granted `12,000/- under the head pain and suffering. Being convinced of the fracture to M.A.C.A. No.1128/2011 **==> picture [214 x 10] intentionally omitted <==** the femur sustained by the petitioner now, we are inclined to grant `13,000/- more as compensation under the said head. Therefore, the petitioner cannot be taken to have enjoyed the amenities of life during the period of treatment and rest. The Tribunal therefore, is highly unjustified in not awarding any compensation under the head loss of amenities. Taking that aspect into consideration, it is just and proper to grant a sum of `20,000/- under the said head. It is relevant to notice that the Tribunal failed to award any sum as compensation under the head damages to clothing. Damages to clothing being a probable consequence of a motor accident, we are inclined to grant `1000/- under that head. In our reassessment in the way as stated hereinabove, the total sum payable to the petitioner in this appeal would come to ` **56,560/** -, which we are inclined to round off as ` **56,600/(Rupees Fifty Six Thousand and Six Hundred only).** Needless to say that the said amount will carry interest at the rate of 8% per annum from the date of the claim petition till realisation. The second respondent, the insurer is directed to deposit the sum as stated above with interest at the rate as aforesaid, within a period of two months from the date of receipt of a copy of this M.A.C.A. No.1128/2011 - : 9 :- judgment. No costs. This appeal is allowed as above. Sd/- **C.T.RAVIKUMAR, JUDGE Sd/MARY JOSEPH, JUDGE** al/-. True copy P.S to Judge M.A.C.A. No.1128/2011 - : 10 :- fair as on 3.4.2018.