P. Bhanumathy v. Muhammed Manzore and New India Assurance Co. Ltd.

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 6[TH] DAY OF JANUARY 2022 / 16TH POUSHA, 1943 ``` ``` MACA NO. 39 OF 2011 ``` ``` AGAINST THE AWARD DATED 26.08.2009 IN OP(MV) NO.1604/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE ``` ## `APPELLANT/PETITIONER:` ``` P.BHANUMATHY, VAYAPPURATH HOUSE, KUNNAMANGALAM POST, KOZHIKODE. ``` ``` BY ADVS.SRI.MANJERI SUNDERRAJ SRI.T.ASHOK KUMAR SMT.K.K.PREETHA ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1V.MUHAMMED MANZORE, S/O.DR.KUTTIALI, H.NO.A/18, HILL VIEW COLONY, CHEVAYUR, KOZHIKODE. ``` ``` 2NEW INDIA ASSURANCE CO.LTD., THRIPURI BUILDING, NADAKKAVU EAST, KOZHIKODE. ``` ## `BY ADV SRI.P.MURALEEDHARAN` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.39/2011 -:2:- Dated this the 6[th] day of January,2022 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV)No.1604/2004 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that she sustained in an accident on 24.07.1999. It was her case that, while she was walking through the Calicut-Mavoor road, a car bearing registration No.KL-7/L-2323 knocked her down. The car was owned and driven by the first respondent and insured with the second respondent. The appellant was a tailor by profession and earning a monthly income of Rs.2,000/-. M.A.C.A.No.39/2011 -:3:- The appellant suffered a permanent disability. The accident occurred solely due to the negligence of the first respondent. Hence, the appellant claimed a compensation of Rs.3,15,800/- from the respondents, which claim was limited to Rs.2,00,000/-. 3. The first respondent did not contest the proceedings and was set ex parte. 4. The second respondent had filed a written statement, admitting that the car had a valid insurance coverage. The second respondent also disputed the age, income and occupation of the appellant. 5. The appellant produced and marked Exts.A1 to A13 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the second respondent an amount of Rs.29,250/- with M.A.C.A.No.39/2011 -:4:- interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri. Manjeri Sunderraj, the learned counsel appearing for the appellant/petitioner and Sri.P.Muraleedharan, the learned counsel appearing for the second respondent-insurer. 9. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability:** 10. Ext.A1 First Information Report(FIR) and First Information Statement(FIS) read with Ext.A2 Scene Mahazar substantiate that the accident occurred due to the negligence of the first respondent. The respondents have not let in any contra evidence to M.A.C.A.No.39/2011 -:5:- refute the assertions in the claim petition as well as Exts.A1 and A2. Therefore, I hold that the accident occurred due to the negligence of the first respondent. The second respondent has not proved that the first respondent had violated the insurance policy conditions. Therefore, it is the second respondent who is to indemnify the liability of the first respondent arising out of the accident. ## **Notional income:** 11. The appellant had claimed that she was a tailor by profession and earning a monthly income of Rs.2,000/-. The said income was accepted by the Tribunal. The Tribunal also awarded the appellant ‘loss of earnings’ for a period of three months, which I find to be reasonable and just. 12. The main area of dispute is with regard to the disability compensation declined by the Tribunal. 13. The appellant had produced Ext.A4 disability M.A.C.A.No.39/2011 -:6:- certificate issued by the Associate Professor in Orthopedic at Medical College Hospital, Calicut, who had certified that the appellant has a permanent disability of 12%. However, the Tribunal for the reason that the appellant had not examined the doctor who issued Ext.A4 disability certificate refused to grant any compensation for ‘loss due to disability.’ 14. In **Raj Kumar v. Ajay Kumar** [2011(1)KLT 620(SC)] the Hon'ble Supreme Court has categorically held that in a case of injury, if the Tribunal is dissatisfied with the disability certificate produced before it, it is the bounden duty of the Tribunal to refer the injured/claimant to a duly constituted Medical Board. Similarly, it is also held that, what needs to be looked into in a case of injury, is the functional disability of the injured/claimant. 15. In the instant case, Ext.A4 was produced and accepted in evidence without any objection or protest M.A.C.A.No.39/2011 -:7:- from the respondents. The Tribunal did not refer the appellant to a Medical Board. 16. Therefore, following the ratio in **Raj Kumar** (supra), I am inclined to accept Ext.A4. On an evaluation of Ext.A4, it is seen that the appellant has a mal-united fracture of the pubic ramus of the pelvis. 17. Taking into account the injury sustained by the appellant and that she was a tailor by profession, I fix her functional disability at 10%. ## **Multiplier:** 18. As the appellant was aged 39 years at the time of accident, following the ratio in **Sarla Verma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802 (SC)],the relevant multiplier to be adopted is ‘15’. ## **Loss due to disability:** 19. Taking into account the above-mentioned factors, namely; the monthly income of the appellant at M.A.C.A.No.39/2011 -:8:- Rs.2,000/-, disability at 10%, and the multiplier at ‘15’, I award the appellant an amount of Rs.36,000/towards ‘loss due to disability’. 20. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed, by enhancing the compensation by a further amount of **Rs.36,000/-** with interest at the rate of 7% per annum from the date of petition till the date of realisation, after deducting interest for a period of 247 days, i.e, the period of delay in preferring this appeal and as directed by this Court on 29.09.2021 in C.M.Appln.No.1/2011, and a cost of Rs.5,000/-. The second respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. M.A.C.A.No.39/2011 -:9:- Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/06.01.22 //True copy/ P.A.To Judge