Pulikkal Hamza v. U.K. Abdulla and K. Sivadasan and New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 13[TH] DAY OF OCTOBER 2021 / 21ST ASWINA, 1943** **MACA NO. 507 OF 2008** **AGAINST THE AWARD DATED 09.07.2007 IN OP(MV)NO.875/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR, MALAPPURAM** ## **APPELLANT/PETITIONER:** **PULIKKAL HAMZA, S/O. MOHAMMED, AGED 38 YEARS, LAKSHAM VEEDU COLONY(H), P.O.PUTHUR PALLIKKAL, MALAPPURAM.** **BY ADV SRI.P.CHANDRASEKHAR** ## **RESPONDENTS/RESPONDENTS:** **1 U.K.ABDULLA, S/O. ALIKUTTY, VALLASSERY HOUSE, P.O.MUNDAKULAM, MUTHUVALLUR, VIA KONDOTTY, MALAPPURAM.** **2 K.SIVADASAN, S/O K.KUNHAN, MALAYIL HOUSE, P.O.MUTHUPARAMBA, VIA. KONDOTTY, MALAPPURAM.** - **3 MS NEW INDIA ASSURANCE CO.LTD. CATHOLIC CENTRE, UP HILL, MALAPPURAM.** **BY ADV SRI.P.G.GANAPPAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.507/2008 -:2:- _Dated this the 13[th] October,2021_ ## **J U D G M E N T** The appellant was the petitioner in O.P. (MV)No.875/2005 on the file of the Motor Accidents Claims Tribunal, Tirur. 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 he sustained in an accident on 20.07.2005. It was his case that, while he was proceeding on his motorcycle bearing registration No. KL-10/K-1584, when he reached the place named 'Mundakulam Junction', an auto rickshaw bearing registration No.KL-10/H-1987( auto rickshaw) driven by the second M.A.C.A.No.507/2008 -:3:- respondent in a rash and negligent manner, hit his motorcycle. The appellant sustained serious injuries and was treated at the Kondotty Relief Hospital and, thereafter, at the Medical College Hospital, Kozhikode, from 20.07.2005 to 21.07.2005. He suffered injuries, including a fracture of the lower end of the left radius and loosening of one tooth in the upper row right central incisor. The appellant was a coolie worker by profession and earning a daily wage of Rs.150/-. The auto rickshaw was owned by the first respondent and insured with the third respondent. The appellant was subsequently treated at the Crescent Hospital from 31.07.2005 to 03.08.2005 and again from 28.03.2007 to 30.03.2007. Hence, the appellant a compensation of Rs.1,77,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceedings. 4. The third respondent had filed a written M.A.C.A.No.507/2008 -:4:- statement admitting that the auto rickshaw had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the appellant. It is also stated that the compensation claimed was exorbitant and excessive. 5. The appellant was examined as PW1 and Exts.A1 to A34 were marked in evidence. The respondents did not let it any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to realise from the third respondent an amount of Rs.60,000/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri. P. Chandrasekhar, the learned counsel appearing for the appellant/petitioner and Sri. M.A.C.A.No.507/2008 -:5:- P.G. Ganappan, the learned counsel appearing for the third respondent/insurer. 9. The core 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.A12 chargesheet filed by the Kondotty Police in Crime No.444/2005 proves that the accident happened due to the negligence of the second respondent. Admittedly, the first respondent was the owner and the third respondent was the insurer of the auto rickshaw. The third respondent admitted that the auto rickshaw had a valid insurance coverage and had not proved the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. M.A.C.A.No.507/2008 -:6:- ## **Income of the appellant:** 11. The appellant had pleaded that he was a coolie worker by profession and earning a daily wage of Rs.150/-. The Tribunal had fixed the monthly notional income of the appellant at Rs.2,500/-. 12. In _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 13. Following the yardstick in the afore-cited decision and keeping in mind the fact that the accident occurred in the year 2005, and the fact that the appellant had claimed a daily wage of Rs.150/-, I fix his monthly notional income at Rs.4,500/-, as claimed in the claim petition. ## **Loss of earnings:** 14. It is on record, as per Ext.A2 wound M.A.C.A.No.507/2008 -:7:- certificate, Exts.A8 and A16 discharge summaries, that the appellant was treated as an inpatient for a period of nine days in three spells at three different hospitals. The appellant had sustained a fracture on his lower end of the left radius and also loosening of the right central incisor tooth. Therefore, necessarily, the appellant's right leg had to be put in a cast. Being a coolie worker, he had to take bed rest for a period of five months, as claimed in the claim petition. Therefore, I hold that the appellant had 'loss of earnings' for a period of five months. 15. Taking into account the monthly notional income of the appellant fixed at Rs.4,500/-, I award the appellant Rs.22,500/- as 'loss of earnings', instead of Rs.7,500/- awarded by the Tribunal. ## **Loss due to disability** 16. The appellant was subjected to a medical examination by a Medical Board of the District M.A.C.A.No.507/2008 -:8:- Hospital, Manjeri. The Medical Board, as per Ext.A32 disability certificate, has fixed the 'permanent disability' of the appellant at 7% due to the limitation of supination and pronation of the left forearm, limitation of the dorsiflexion of the left hand and ROM 455 dorsiflexion to 15°. 17. In _**Rajkumar v. Ajayakumar**_ [2011(1) KLT 620(SC)], the Honourable Supreme Court has categorically held that in the case of an injury, what needs to be looked into by the Tribunal/Court is the 'functional disability' of the injured/claimant. 18. In the instant case, as the appellant was a coolie worker by profession and his left hand movements have been impaired due to the accident, I fix his 'functional disability' at 10%. ## **Multiplier** 19. Admittedly, the appellant was aged 38 years at the time of accident. In the light of the law laid M.A.C.A.No.507/2008 -:9:- down in _**Sarla Varma and others v. Delhi Transport Corporation and others**_ [(2010) 2 KLT 802 (SC)], the relevant multiplier is '15'. 20. Following the above-mentioned factors, namely; notional monthly income of the appellant at Rs.4,500/-, his functional disability at 10% and the multiplier at '15', I fix his compensation for 'loss due to disability' at Rs.81,000/-. ## **Bystander expenses:** 21. The appellant was treated as an inpatient for a period of nine days in three different hospitals. However, the Tribunal has awarded only an amount of Rs.700/- towards 'bystander expenses', which according to me, is on the lower side. 22. Keeping in mind that the accident occurred in the year 2005, I award an amount of Rs.200/-per day for a period of nine days i.e., Rs.1,800/- towards bye-stander expenses. M.A.C.A.No.507/2008 -:10:- ## **Loss of amenities:** 23. Even though the appellant had claimed compensation for 'loss of amenities', the Tribunal has not awarded any amount under the said head. 24. On a consideration of the fact that the appellant was treated as an inpatient for a period of nine days, he was indisposed for a period of five months and he has sustained a functional disability of 10%, I hold that the appellant is entitled for compensation for 'loss of amenities' at Rs.15,000/- 25. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 26. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and M.A.C.A.No.507/2008 -:11:- ## given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by this<br>Court| |---|---|---|---| |1|Loss of earnings|7,500|22,500| |2|Transport<br>expenses|1,000|1,000| |3|Clothing|500|500| |4|Bystander<br>expenses|700|1,800| |5|Extra nourishment|1,500|1,500| |6|Medical expenses|5,200|5,200| |7|Pain and sufferings|10,000|10,000| |8|Loss of amenities|Nil|15,000| |9|Future treatment|Nil|5,000| |10|Loss<br>due<br>to<br>disability|33,600|81,000| ||**Total**|**60,000**|**1,43,500**| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **Rs.83,500/-** with interest on the enhanced compensation at the rate of 6% per annum from the date of petition till the date of realisation, after M.A.C.A.No.507/2008 -:12:- deducting interest for a period of 85 days i.e., the period of delay in preferring this appeal and as ordered by this Court on 08.09.2021 in C.M.Appln.No.1/2008, and a cost of Rs.4,000/-. The third respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner, in accordance with law. All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST/13.10.21 //True copy/ P.A.To Judge