High Court of KeralaSingle Judge2021-08-02Appeal allowed in part; enhanced compensation a...

Noushad v. Sreedaran, Pradeep and United India Insurance Co. Ltd.

Case / Petition Number:MACA No. 2716 of 2009

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2021-08-02
Court Decision / Holding: The appeal is allowed, in part. The court re-fixes the disability at 35% (as certified in Ext. A14), applies the appropriate multiplier (18) for an 18-year-old, and recalculates the compensation heads resulting in an enhanced total of Rs. 2,38,000 beyond the Tribunal award. Interest at 7% per annum accrues from the petition date to the date of deposit, with the amount to be deposited before the Tribunal within two months from the certified copy of the judgment, after deducting 47 days for delay, and to be disbursed in accordance with law.
Final Disposition: Appeal allowed in part; enhanced compensation awarded with specific recalculations and directions for deposit and disbursement.

Parties to the Case

Appellants / Petitioners

Noushad

Respondents

Sreedaran
Pradeep
The United India Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• SMT.T.D.RAJALAKSHMI
• Sri.R.SREEHARI

Counsels for Respondents

• Sri.A.T.ANILKUMAR
• Sri.S.ARUN RAJ
• SMT.V.SHYLAJA

Case Synopsis & Summary

This appeal arises from a Motor Accidents Claims Tribunal award in OP(MV) No. 444/2006 at Ottapalam, challenging by the appellant Noushad, a mechanic who sustained fractures in a road accident on 30.09.2005 while standing on the Kumbidi–Thrithala public road. The motorcycle (KL 9/Q 4854) was owned by the 2nd respondent and insured with the 3rd respondent. The Tribunal allowed the claim in part and awarded Rs. 2,05,950 with interest and costs. The appellant contends that the Tribunal erred in downscaling his permanent disability from 35% to 30% because Ext. A14 explicitly shows 35% disability; the tribunal’s reasoning rested on non-examination of the appellant, contrary to the Supreme Court’s guidance that disability should be assessed through the doctor who issued the certificate or a Medical Board (Rajkumar v. Ajayakumar). The High Court holds that the disability must be fixed at 35% as certified, and adopts the multiplier rule at 18 years, relying on Sarala Varma v. Delhi Transport Corporation to compute loss due to disability, yielding a higher compensation. Notional monthly income is taken as Rs. 4,000. The court re-computes losses: disability loss Rs. 3,02,400; loss of earnings Rs. 16,000; loss of amenities Rs. 20,000, among others. The appeal is allowed in part, with an enhanced total compensation of Rs. 2,38,000, along with 7% interest, to be deposited before the Tribunal within two months and distributed in accordance with law.

Legal Doctrines & Maxims

Disability must be proved by medical evidence (doctor's certificate or Medical Board) – Rajkumar v. Ajayakumar (SC)
Multiplier rule for computation of compensation in MACT cases, applied as 18 for an 18-year-old – Sarala Varma v. Delhi Transport Corporation
Proper application of medical evidence and statutory principles to compute 'loss due to disability' and related heads in MACT cases

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argues that the Tribunal erred in downscaling disability from 35% to 30% and that Ext. A14 clearly shows 35% disability. Citing Rajkumar v. Ajayakumar, disability must be proven by the examining doctor or a Medical Board, and therefore 35% should be accepted. Recalculation of compensation should reflect 35% disability, not 30%, with appropriate application of the correct multiplier (18) and revised notional income (Rs. 4,000). The enhanced compensation should be maintained with interest and costs.

Contentions of Respondents

The insurer contends that the findings of the Tribunal regarding disability are not properly established and that the award should be preserved as per the evidence on record. They emphasize that liability rests with the insurer for the insured vehicle, and contend that the evidence does not justify a higher disability or a drastic increase in compensation beyond the Tribunal’s calculations; the assessment of disability and computation should be allowed to stand as originally awarded, subject to lawful adjustments.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Rajkumar v. Ajayakumar	2011(1) KLT 620(SC)	Positive	Used to establish that disability must be proved by the doctor who issued the certificate or by a Medical Board.
Sarala Varma and others v. Delhi Transport Corporation and others	(2010) 2 KLT 802	Positive	Cited for the multiplier rule, setting the applicable multiplier as 18 for an 18-year-old.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 2[ND] DAY OF AUGUST 2021 / 11TH SRAVANA, 1943** ## **MACA NO. 2716 OF 2009** **AGAINST THE AWARD IN OP(MV)NO.444/2006 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD** ## **APPELLANT/PETITIONER:** **NOUSHAD, S/O.HAMEED, 22 YEARS, PANNIKKATTIL HOUSE, CHOLAYIL,MANNIYAM PERUMBALAM POST, KUDALLUR, OTTAPAM TALUK, PALAKKAD DISTRICT.** **BY ADVS. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI** ## **RESPONDENTS:** - **1 SREEDARAN, S/O.KRISHNAN, KUNDUKATTIL VEEDU,KUMBIDI POST, UMMATHOOR,OTTAPALAM TALUK.** - **2 PRADEEP, S/O.BALA GANGADHARAN NAIR POOLAKKAL CHOLAYIL HOUSE, KUMBIDI POST,, OTTAPALAM TALUK, PALAKKAD DISTRICT.** - **3 THE UNITED INDIA INSURANCE CO.LTD BRANCH OFFICE,FAISAL BUILDINGS, MAIN ROAD,, OTTAPALAM, PALAKKAD DISTRICT.** **BY ADVS. SRI.A.T.ANILKUMAR SRI.S.ARUN RAJ SMT.V.SHYLAJA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 02.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No. 2716 of 2009 _2_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 2716 of 2009 - - - - - - - - - - -- - - - - - - - - - - - - Dated this the 2[nd] day of August, 2021 ## **JUDGMENT** The appellant was the petitioner in OP(MV)No.444 of 2006 on the file of the Motor Accidents Claims Tribunal, Ottapalam. The respondents in the appeal were the respondents before the Tribunal. 2. The brief facts, relevant for the determination of the appeal, are: on 30.09.2005 while the appellant was standing on the Kumbidi – Thrithala public road, a motorcycle bearing KL 9/Q 4854 ridden by the 1[st] respondent in a rash and negligent manner hit the appellant. The appellant turned unconscious and sustained fractures. He was taken to the Edappal Hospital and, thereafter, to the West Fort Hospital, MACA No. 2716 of 2009 _3_ Thrissur, where he was treated as an in-patient for a period of 18 days. The motorcycle was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The appellant was a Mechanic by profession and earning a monthly income of Rs.4,000/-. The appellant, hence, claimed a total compensation of Rs.3,00,000/- from the respondents. 3. The respondent 1 and 2 did not contest the proceedings and were set ex-parte. 4. The 3[rd] respondent filed a written statement refuting the allegations in the claim petition. It was contended that the accident occurred on account of the negligence of the appellant. However, the 3[rd] respondent admitted that the motorcycle had a valid insurance coverage. 5. The appellant examined the Doctor who issued the disability certificate as PW1 and marked MACA No. 2716 of 2009 _4_ Exts.A1 to A16 in evidence. The 3[rd] respondent produced Ext. B1 copy of the insurance policy and marked it in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by an impugned award, allowed the claim petition, in part, by permitting the appellant to realise an amount of Rs.2,05,950/- with interest and cost from the respondents. The 3[rd] respondent was directed to pay the compensation amount. 7. Dissatisfied with the quantum of compensation the petitioner/appellant is in appeal. 8. Heard Sri.R.Sreehari, the learned counsel for the appellant/petitioner, Sri.Arun Raj, the learned counsel appearing for the 3[rd] respondent – insurer. 9. The questions that emerge for consideration in the appeal are (i) whether the scaling down of the MACA No. 2716 of 2009 _5_ permanent disability of the appellant by the Tribunal was justifiable? and (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just? 10. Ext.A4 charge-sheet filed by the police after investigation proves that the accident occurred on account of the negligence on the part of the 1[st] respondent. Admittedly, the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the motorcycle. Therefore, it is the 3[rd] respondent who is to indemnify the liability of the 2[nd] respondent on account of the accident. 11. The appellant had examined PW1 who proved Ext.A14 disability certificate, wherein, the appellant's permanent disability was certified at 35%. However, the Tribunal for the reason that the appellant had not examined himself scaled down the MACA No. 2716 of 2009 _6_ disability to 30%. 12. In **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)] the Hon'ble Supreme Court has held that the proper course to prove the disability of a person is to examine the Doctor who issued the disability certificate or get the disability assessed by a duly constituted Medical Board. 13. In the instant case, the appellant had examined PW1 and proved Ext.A14 disability certificate. In Ext.A14 the disability of the appellant is clearly stated as 35%. The Tribunal for the sole reason that the appellant was not examined scaled down the disability, which was erroneous and totally unwarranted. Hence, I set aside the finding of the Tribunal that the appellant has only a permanent disability of 30%. Accordingly, I re-fix the disability at 35% as certified in Ext.A14. MACA No. 2716 of 2009 _7_ ## **Multiplier** 14. As the appellant was aged 18 years and in view of the law laid down in **Sarala Varma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802], the relevant multiplier is '18'. **Loss due to disability** 15. In view of the re-fixation of the notional income of the appellant at Rs.4,000/- per month, his disability at 35% and the multiplier at '18', I re-fix the compensation for 'loss due to disability' at Rs.3,02,400/- instead of Rs.86,400/- awarded by the Tribunal. ## **Loss of earnings** 16. In view of the re-fixation of the notional income of the appellant at Rs.4,000/- per month and the finding of the Tribunal that the appellant was indisposed for a period of four months, I re-fix his MACA No. 2716 of 2009 _8_ 'loss of earnings' at Rs.16,000/- instead of Rs.6,000/fixed by the Tribunal. ## **Loss of amenities** 17. The appellant had claimed a total amount of Rs.35,000/- towards 'loss of amenities'. The Tribunal awarded only an amount of Rs.8,000/-. 18. Taking into account the fact that the appellant was treated as an in-patient for a period of 18 days, he was indisposed for a period of four months and that he has a disability of 35%, I hold that the appellant is entitled for compensation for 'loss of amenities' at Rs.20,000/- i.e., an enhancement by a further amount of Rs.12,000/- ## **Other heads of claim** 19. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. MACA No. 2716 of 2009 _9_ 20. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decision, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl. No|Heads of claim|Amount awarded by the Tribunal (in rupees)|Amounts modified and recalculated by this Court| |---|---|---|---| |1|Loss of earning|6,000/-|16,000/-| |2|Transport to hospital|4,000/-|4,000/-| |3|Medical expenses|82,850/-|82,850/-| |4|Compensation for pain and sufferings|16,000/-|16,000/-| |5|Compensation for loss of amenities|8,000/-|20,000/-| |6|Loss due to disability|86,400/-|3,02,400/-| |||2,03,250/-|4,41,250/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.2,38,000- with interest at the rate of 7% per annum from the date of petition till the date of MACA No. 2716 of 2009 **==> picture [14 x 9] intentionally omitted <==** deposit, after deducting 47 days, i.e, the period of delay in preferring the appeal and as ordered by this Court on 02.07.2021 in C.M.Appl.No.3203 of 2009 and proportionate costs. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellant, in accordance with law. **Sd/- C.S.DIAS,JUDGE** **dlk 02.08.2021**