Nazrudeen @ Nazar.A, S/o Abdul Rasheed v. Rajesh, P.U. Ramachandran, and The Oriental Insurance Co. Ltd.

1 MACA No.2350 of 2010 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 23[RD] DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943 MACA NO. 2350 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 31/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA** ## **APPELLANT/S:** NAZRUDEEN @ NAZAR.A,S/O.ABDUL RASHEED AGED 26, THEMBANVILA VEEDU, RAMAKKALMEDU,, PARATHODU. BY ADVS. SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH ## **RESPONDENT/S:** 1 RAJESH ,S/O.RAMACHANDRAN PADINJATTETHIL HOUSE, BLOCK NO.825,, RAMAKKALMETTU,KARUNAPURAM VILLAGE,, KARUNAPUPURAM PO, PIN 685 552 2 P.U.RAMACHANDRAN, BLOCK NO.825 PADINJATTETHIL HOUSE, RAMAKKALMETTU, KARUNAPUPURAM PO, PIN 685 552 3 THE ORIENTAL INSURANCE CO.LTD THODUPUZHA BRANCH, THODUPUZHA PO,PIN 685 584. BY ADV SRI.A.R.GEORGE ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 23.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2350 of 2010 ## **C.S.DIAS, J.** ## **====================== MACA No.2350 of 2010** **====================== Dated this the 23[rd] day of November, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) 31/2006 on the file of the Motor Accidents Claims Tribunal, Thodupuzha. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 28.3.2005. It was the appellant's case that, on the above said day, while he was travelling pillion on the motor cycle bearing registration No.KL-6B/8867 from Thookkupalam to Ramackalmedu, when the vehicle reached near Preethy theatre, a jeep bearing registration No.KL-6/3425 (jeep), driven by the first respondent in a rash and negligent manner, hit the motor cycle on which 3 MACA No.2350 of 2010 the appellant was travelling. The appellant sustained serious injuries and was treated as an inpatient for a period of five months at St.John's Hospital, Kattappana. The jeep was owned by the second respondent and insured with the third respondent. The appellant was a bus conductor by profession and was earning a monthly income of Rs.9,000/-. Hence, the appellant claimed a compensation of Rs.7,10,000/- from the respondents, which was limited to Rs.4,00,000/-. 3. The rider of the motor cycle also filed OP(MV) 30/2006, claiming compensation on account of the injuries sustained to him in the accident, before the same Tribunal. 4. The respondents 1 and 2 did not contest the proceeding and were set ex parte. 5. The third respondent had filed separate written statements in both the claim petitions admitting that the jeep had a valid insurance coverage. However, the third 4 MACA No.2350 of 2010 respondent contended that the accident occurred due to the negligence of the rider of the motor cycle. The third respondent also disputed the age, income and occupation of the petitioners in the two claim petitions. 6. The Tribunal consolidated and jointly tried the two claim petitions. 7. A witness was examined as PW1 on the side of the appellant and Exts A1 to A16 were marked in evidence. The respondents did not let in any evidence. 8. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition, in part, by permitting the appellant to realise from the third respondent an amount of Rs.1,91,300/- with interest @ 7.5% per annum from the date of claim petition till the date of realization. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in the appeal. 10. Heard: Sri.P.Chandy Joseph, the learned Counsel 5 MACA No.2350 of 2010 appearing for the appellant/petitioner and Sri.A.R George, the learned counsel appearing for the third respondent – insurer. 11. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Disability certificate** 12. Even though the appellant had produced Ext A12 disability certificate, to establish that he has a permanent disability of 40%, the Tribunal did not award any compensation for loss due to disability. 13. This Court had by order dated 27.7.2021 referred the appellant to the Medical Board attached to the District Hospital, Idukki. 14. A four member Medical Board, by its proceeding dated 31.8.2021, has issued a disability certificate assessing the functional disability of the appellant at 52% in relation to his left upper limb. The said disability 6 MACA No.2350 of 2010 certificate is accepted on record and marked as Ext X1. ## **Negligence and liability** 15. Ext A8 charge-sheet filed by the Nedumkandom Police in crime No.94/2005, substantiates that the accident happened due to the negligence of the first respondent. 16. Admittedly, the second respondent was the owner and the third respondent was the insurer of the jeep. The respondents have not let in any contra evidence to discredit the charge sheet as the law laid down in **New India Assurance Co.Ltd v. Pazhaniammal – [(2011) (3) KLT 648].** The third respondent has also not proved that the second respondent had violated the terms of the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Notional Income** 7 MACA No.2350 of 2010 17. The appellant had claimed that he was a bus conductor by profession and earning a monthly income of Rs.9,000/-. The appellant had not produced any material to substantiate his assertion. The Tribunal, for the want of material, fixed the notional monthly income of the appellant at Rs.2,000/-. 18. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 19. Following the yardstick in the aforecited decision and considering the fact that the accident happened in the year 2005 and the appellant was a bus conductor by profession, I re-fix the appellant's notional monthly income at Rs.5,000/-. 8 MACA No.2350 of 2010 ## **Multiplier** 20. As the appellant was aged 26 years at the time of the accident, the relevant multiplier to be adopted is '17', following the ratio in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121].** ## **Disability of the appellant** 21. As per Ext X1, the four member Medical Board has found that the appellant has a functional disability of 52% with respect to his left upper limb for the reason that he suffered a fracture of left humerus with radial nerve palsy, Type III compound fracture of both bones on the left leg, he has a three inch shortening of left arm segment, he has wasting of muscles of left arm and fore arm and he has limitation of activities of his daily living like eating, drinking, lifting objects etc. It is also found that he has moderate pain in shoulder and elbow on activities. 22. In view of the unanimous opinion of the Medical Board in Ext X1 disability certificate, I have no hesitation 9 ## MACA No.2350 of 2010 in fixing the functional disability of the appellant at 52% as laid down in **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)].** ## **Future prospects** 23. In **Jagadeesh vs Mohanan and others [(2018) 4 SCC 571, Pappu Deo Yadav v. Naresh Kumar & others [AIR 2020 SC 4424]** and **Antony @ Antony Swami vs K.S R TC [(2020) SCC online SC 493],** the Hon'ble Supreme Court has held that in the case of serious injuries, the claimant-injured is also entitled to future prospects. 24. In the instant case, as the appellant was aged 26 years at the time of the accident and his functional disability is fixed at 52%, I hold that he is entitled to future prospects at 40%. ## **Loss due to disability** 25. Taking into account the above mentioned factors, i.e., the monthly income of the appellant at Rs.5,000/-, the 10 MACA No.2350 of 2010 multiplier at '17', his functional disability at 52% and future prospects at 40%, I hold that the appellant is entitled to compensation of Rs.7,42,560/-, for loss due to disability. ## **Loss of earnings** 26. It is on record that the appellant had sustained serious injuries and he was treated as inpatient for a period of 65 days. 27. In the light of the serious injuries suffered by the appellant, as reflected in Exts A1 wound certificate, A2 discharge summary and X1 disability certificate, I hold that the appellant was indisposed for a period of ten months. 28. In view of the re-fixation of the notional monthly income of the appellant at Rs.5,000/-, I hold that the appellant is entitled for loss of earning at Rs.50,000/-, instead of Rs.36,000/- awarded by the Tribunal. 11 MACA No.2350 of 2010 ## **Bystander expenses and extra nourishment** 29. It is evident from Exts A2 and A15 discharge summaries that the appellant was treated as an inpatient for a period of 65 days. The Tribunal has awarded only an amount Rs.6,000/- towards bystander expenses, which according to me is too meagre. 30. In the above said circumstances, taking into account the fact that the appellant was treated as an inpatient for a period of 65 days, I hold that he is entitled for an amount of Rs.250/- per day, for a period of 65 days, which works out to Rs.16,250/- towards bystander expenses. 31. Likewise, the Tribunal has awarded only an amount of Rs.5,000/- under the head 'extra nourishment'. I award an amount of Rs.150/- per day for a period of 65 days, which amounts to Rs.9,750/- under the said head. ## **Loss of amenities** 32. As evidenced by Ext X1, the appellant has 12 MACA No.2350 of 2010 suffered a functional disability of 52%,. He was treated as an inpatient for a period of 65 days and he was indisposed for a period of ten months. Therefore, I award him a further amount of Rs.35,000/- under the head 'loss of amenities'. ## **Other heads of claim** 33. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 34. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation, particularly in view of the assessment made by the duly constituted Medical Board in Ext X1, as modified and re-calculated above, and given in the table below for easy reference. 13 MACA No.2350 of 2010 |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Loss of earnings|36,000/-|50,000/-| |2|Transport to hospital|3,000/-|3,000/-| |3|Extra nourishment|5,000/-|9,750/-| |4|Medical expenses|60,757/-|60,757/-| |5|Bystander expenses|6,000/-|16,250/-| |6|Pain and sufferings|20,000/-|20,000/-| |7|Future treatment|35,000/-|35,000/-| |8|Damage to clothing|500/-|500/-| |9|Dis figuration|10,000/-|10,000/-| |10|Loss of amenities|15,000/-|50,000/-| |11|Loss due to disability|Nil|7,42,560/-| ||Total|1,91,257/-<br>rounded as<br>Rs.1,91,300/-|9,97,817/-| ## 35. Even though the appellant had claimed only an amount of Rs.4,00,000/-, I have awarded more compensation than what is claimed in the claim petition following the ratio in **Raj Kumar vs. Ajay Kumar, Pappu Deo Yadav vs. Naresh Kumar** and **vs. Jagadeesh Mohanan** (supra). The said course is permissible in view 14 MACA No.2350 of 2010 of the law laid down by the Hon'ble Supreme Court in **Nagappa vs. Gurudayal Singh [ 2003 (1) KLT 115(SC)** and **Rajesh vs. Rajbir Singh [ 2013 (3) KLT 89 (SC)] .** In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.8,06,517/-** (Rupees Eight Lakh Six Thousand Five Hundred and Seventeen only) with interest at the rate of 7% per annum from the date of claim petition till the date of deposit and proportionate cost. The third respondentinsurer is ordered to deposit the enhanced compensation amount with interest and costs before the Tribunal within a period of 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 enhanced compensation amount to the appellant, after deducting his liability, if any, towards balance court-fee, and in accordance with law. Sd/- sks/23.11.2021 **C.S.DIAS, JUDGE**