POTHAMKODAN ALI v. ABDULLAH K. KURIKKAL, E. MOHAMMED, ORIENTAL INSURANCE CO. LTD.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 22[ND] DAY OF FEBRUARY 2022 / 3RD PHALGUNA, 1943** ## **MACA NO. 215 OF 2009** **AGAINST THE AWARD DATED 27.09.2008 IN OPMV 870/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI** ## **APPELLANT/CLAIMANT:** POTHAMKODAN ALI KODAKAMTHODIKA HOUSE, PALAKKADU.P.O, KUZHIMANNA VIA, ERNAD TALUK,, MALAPPURAM DISTRICT. BY ADV SRI.K.VIDYASAGAR ## **RESPONDENTS/RESPONDENTS:** 1 ABDULLAH K. KURIKKAL HOUSE,, ANAKKAYAM.P.O,, MANJERI (DRIVER) 2 E. MOHAMMED ERANHIYIL HOUSE,, PANDIKKAD.P.O, (OWNER) 3 ORIENTAL INSURANCE CO. LTD. BRANCH OFFICE, JASEELA COMPLEX,, MAJERI (INSURER) BY ADVS. SRI.BABU S. NAIR SRI.P.SAMSUDIN SRI.K.C.ANTONY MATHEW SRI.K.RAKESH SRI.JITHIN LUKOSE SRI.TITUS MANI SMT.S.K.SREELAKSHMY SRI.M.ANUROOP THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **MACA NO.215 OF 2009 2** ## **JUDGMENT** **Dated this the 22[nd ] day of February, 2022** The appellant was the petitioner in O.P (MV) No.870/2004 on the file of the Motor Accidents Claims Tribunal, Manjeri. 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 sustained to him in an accident on 24.02.2003. It was his case that, on the above said date, while he was travelling in a lorry bearing registration No. KRD 9839 from Poonklappadi to Manjeri, the lorry overturned causing injuries to him. The appellant was treated as an inpatient for a period of 17 days at the Medical College Hospital, Kozhikode. The appellant was a loading and unloading worker and earning a monthly income of Rs.6000/-. The lorry was owned by the second respondent and insured with the ## **MACA NO.215 OF 2009 3** third respondent. Hence, the appellant claimed a compensation of Rs.5,00,000/- from the respondents. 3. In the same accident, another injured also filed O.P.(M.V) No.869 of 2004, before the same Tribunal, against the respondents. 4. The respondents 1 and 2 did not contest the proceeding. 5. The third respondent had filed separate written statements in both the claim petitions admitting that the lorry was covered by an insurance policy. Nevertheless, it was contended that the insurance policy was only an ‘Act Policy’ and no additional premium was paid. Therefore, the appellant and the other injured being loading workers, were only gratuitous passengers and were not covered by the insurance policy. 6. The Tribunal consolidated and jointly tried the two claim petitions. ## **MACA NO.215 OF 2009 4** 7. The petitioners in the two claim petitions separately produced and marked Exhibits A1 to A4 series and Exhibits A1 to A6 series, respectively, in evidence. The third respondent had produced and marked the insurance policy as Exhibits B1 in both the cases. The disability certificate of both the petitioners were separately marked as Exhibits ‘X1’. 8. The Tribunal, after analyzing the pleadings and materials on record, allowed the captioned claim petition in part, by permitting the appellant to recover from the second respondent an amount of Rs.2,77,133/-, which was rounded off to Rs.2,77,150/- with interest and cost of Rs.500/-. - 9.Dissatisfied with the quantum of compensation - awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri.K.Vidyasagar, the learned counsel appearing for the appellant/petitioner and Sri. Babu S. Nair, the learned counsel appearing for the first ## **MACA NO.215 OF 2009 5** respondent and Sri. Titus Mani Vettom, the learned counsel appearing for the third respondent-insurer. 11. The point that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 12. Exhibit A1 FIR and Exhibit A2 wound certificate proves that the accident occurred due to the negligence of the first respondent. Admittedly, the second respondent was the owner of the lorry. The third respondent - the insurer of the lorry – has established that Exhibit B1 insurance policy was only an ‘Act Policy’, for which no additional premium was paid to cover passengers in the lorry. Therefore, the finding of the Tribunal that the third respondent was not liable to indemnify the second respondent is correct and in accordance with law. Hence, I uphold the finding that it ## **MACA NO.215 OF 2009 6** is the second respondent who is vicariously liable to pay the compensation amount. ## **Income** 13. The appellant had claimed that he was a loading and unloading worker and earning a monthly income of Rs.6000/-. For the want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.2500/-. 14. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 15. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2003, I re-fix the notional monthly income of the appellant at Rs.4000/-. ## **MACA NO.215 OF 2009 7** ## **Loss of earnings** 16. The Tribunal has found that the appellant was indisposed for a period of six months. I confirm the said finding. 17. However, in view of the re-fixation of the notional monthly income of the appellant at Rs.4000/-, I award him an amount of Rs.24,000/- towards ‘loss of earnings’, instead of Rs.15,000/- awarded by the Tribunal. ## **Disability** 18. The appellant had produced Exhibit X1 disability certificate to substantiate that he had permanent disability. The Tribunal accepted Exhibit X1 and fixed the permanent disability of the appellant at 70%. 19. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable Supreme Court has categorically held that in a injury claim what needs to be looked into is the functional disability of the injured-claimant. ## **MACA NO.215 OF 2009 8** 20. On a perusal of Exhibit X1, it is seen that the Medical Board has certified that the appellant had developed ear discharge and later hearing impairment, on the pure tone audiometry, and hence he has a partial permanent disability of 70%. Therefore, following the principles in **Raj Kumar’s** case (supra), I find that the functional disability fixed by the Tribunal at 70% is on the higher side. On a consideration of the fact that the appellant was only an loading and unloading worker and taking into account the disability assessed in Exhibit X1, I scale down the functional disability of the appellant to 35%. ## **Multiplier** 21. The appellant was aged 48 years at the time of the accident. In the light of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘13’. ## **MACA NO.215 OF 2009 9** ## **Loss due to disability** 22. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.4000/-, his functional disability at 35% and the multiplier at ‘13’, I award him an amount of Rs.2,18,400/- under the head ‘loss due to disability’, instead of Rs.2,31,000/- awarded by the Tribunal. ## **Pain and sufferings and Loss of amenities** 23. The Tribunal has awarded an amount of Rs.15,000/- under the head ‘pain and sufferings’, but has not awarded any amount under the head ‘loss of amenities’. 24. On a consideration that the appellant was treated as an inpatient for a period of 17 days, that he was indisposed for a period of six months and that he had suffered a functional disability of 35% , I award him a further amount of Rs.15,000/- under the head ‘pain and **MACA NO.215 OF 2009 10** suffering and Rs.20,000/- under the head‘ loss of amenities’ 25. With respect to the other heads of compensation, I find the same to be reasonable and just compensation. 26. On an overall re-appreciation of the pleadings and 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 as modified and re-calculated above, and given in the table below for easy reference. |Sl No.|Head of Claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings|15000|24000| |2|Transport|500|500| |3|Clothing|250|250| |4|By-stander<br>expenses|1700|1700| |5|Medical|12683|12683| ## **MACA NO.215 OF 2009 11** ||expenses||| |---|---|---|---| |6|Pain and<br>sufferings|15000|30000| |7|Loss of amenities|0|20000| |8|Review expenses|1000|1000| |9|Loss due to<br>disability|231000|218400| ||Total|277133<br>rounded off to<br>Rs.2,77,150/-|308533| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **Rs.31,383/-** with interest at the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.5,000/-. The second respondent is ordered to deposit the enhanced compensation with interest and cost as ordered above before the Tribunal within sixty days from today. If the compensation amount is not deposited, the appellant would be at liberty to move the Tribunal for execution of this judgment, and on the **MACA NO.215 OF 2009 12** compensation amount being realised, the same shall be disbursed to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS JUDGE** rmm/23/02/2022