RAFEEK v. SAKEER, KHADER & THE NEW INDIA ASSURANCE CO. LTD.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 30TH DAY OF JUNE 2017/9TH ASHADHA, 1939 ## MACA.No. 1299 of 2012 () ------------------------- AGAINST THE AWARD IN OPMV 198/2009 of M.A.C.T OTTAPPALAM ## APPELLANT(S)/PETITIONER: ----------------------- ## RAFEEK S/O.MOHAMMED, NETTASSERY KUNNATHU HOUSE, KARATTUKURUSSI, CHERPULASSERY P.O., PALAKKAD DISTRICT. ## BY ADV. SRI.V.K.BALACHANDRAN ## RESPONDENT(S)/RESPONDENTS: -------------------------- ## 1. SAKEER S/O.MOIDEEN, THANIYAMPADATH HOUSE, IRUMBALASSERI, NELLAYA, OTTAPALAM TALUK, PALAKKAD DISTRICT-679335. ## 2. KHADER S/O.MUBAMMED, POTTUNGAL HOUSE, IRUMBALASSERI, NELLAYA, OTTAPALAM TALUK, PALAKKAD DISTRICT-679335. 3. THE NEW INDIA ASSURANCE CO.LTD. DIVISIONAL OFFICE, N.S.TOWERS, NEAR STADIUM BUS STAND, COIMBATORE ROAD, PALAKKAD-678001. R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ========================== M.A.C.A. No.1299 OF 2012** **==========================** Dated this the 30[th] day of June, 2017 ## **JUDGMENT** _Ravikumar, J._ The injured-appellant comes up in appeal seeking enhancement of the quantum of compensation awarded by the Motor Accidents Claims Tribunal, Ottappalam in O.P.(MV).No.198 of 2009. He filed the said claim petition under section 166 of the Motor Vehicles Act, 1988 seeking compensation for the injuries sustained by him in a motor vehicle accident that occurred on 18.10.2008. On that day, at about 12.30 a.m, he was riding his motor vehicle bearing Reg.No.KL 9 P 7221. When he reached Manjakallu Junction, a goods autorickshaw bearing Reg.No.KL 52 8957, driven by the first respondent dashed against his motor cycle and he sustained injuries. Consequently, he was taken to Moulana Hospital, Perinthalmanna and **M.A.C.A.No.1299/2012** 2 he remained there as inpatient for a period of 24 days. The injuries sustained by him resulted in permanent disability. It is in the said circumstances that claiming a total compensation of Rs.5 lakhs the aforementioned claim petition was filed. 2. The appellant got himself examined as PW3 before the Tribunal besides getting examined one Dr.Abdul Gafoor and one Gnanadas respectively as PW1 and PW2. On his side, Exts.A1 to A18 were marked. No evidence, either oral or documentary, was adduced by the respondents. The Tribunal, as per the impugned award, granted a total compensation of Rs.1,88,200/- with interest at the rate of 7% per annum from the date of the petition till realisation. The appellant seeks for enhancement of the said quantum of compensation. 3. On perusing the impugned award, we are of the view that an appellate interference is called for only on two counts. The evidence on record discussed in detail in the impugned award would reveal that as per Ext.A9 treatment certificate, the injuries sustained by the appellant resulted in permanent disability to the extent of 10%. PW1 **M.A.C.A.No.1299/2012** 3 is a Maxillo Facial Surgeon who issued the said certificate. Ext.A10 is another disability certificate issued by PW2 who was a Neuro surgeon attached to the very same hospital certifying the whole body disability of the appellant as 5%. Despite the certification of disability of the appellant under Exts.A9 and A10, the Tribunal had not granted compensation for 'permanent disability', virtually on a misconception of the decision in **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620].** Evidently, the Tribunal held that the nature of the disability sustained and the nature of the occupation of the appellant would suggest that it would not disable him from continuing his occupation. In other words, it was found that disability would not reduce his earning capacity. In that view of the matter and relying on the said decision, the Tribunal had declined to grant compensation to the appellant for 'permanent disability' incurred by him due to the injuries sustained in the accident. 4. As noticed hereinbefore, the whole body disability of the appellant incurred due to the injuries sustained in the accident is certified under Ext.A10 as 5%. True that the disability had not **M.A.C.A.No.1299/2012** 4 adversely affected his earning capacity. That does not mean that the appellant who lost bodily integrity need not be compensated solely because he is an employee. Due to the tortious action of another, the appellant had to suffer less bodily integrity to certain extent, going by the medical evidence. When that be so, even in a case where permanent disability had not adversely affected earning capacity, the appellant being the injured, is entitled to get compensated for the disability incurred by him due to the injuries sustained in the accident. In such circumstances, we have no hesitation to hold that the Tribunal went wrong in declining to grant compensation for 'permanent disability'. The appellant had claimed that he was working as a teacher and earning Rs.5,000/- per month. He had mounted the box and gave evidence to that effect. But, at the same time, the appellant had not adduced cogent evidence to prove the nature of his occupation i.e., whether he is a government school teacher, aided school teacher or a private unaided school teacher. The Tribunal took the monthly income for the purpose of calculating compensation for loss of earning as Rs.4,000/-. But then, the accident in question had occurred **M.A.C.A.No.1299/2012** 5 on 18.10.2008 and the appellant was then aged 26 years. Taking into account the aforesaid facts, we do not find any reason for not accepting his claim that he was earning Rs.5,000/- per month especially taking into account the year of the accident and his age at that point of time. The multiplier applicable with reference to the age of the appellant is 17. Taking into account the whole body disability assessed under Ext.A10, viz., 5% and taking into account the relevant factors, the appellant would be entitled to get an amount of Rs.51,000/- (5000x12x17x5/100) under the head 'permanent disability'. The said amount is granted. The dresses worn by the appellant at the time of the accident must have been damaged. The Tribunal had granted only a sum of Rs.500/- under that head. In such circumstances, we are inclined to grant an amount of Rs.500/- more towards damage to clothing. After a careful consideration of the impugned award, we do not find any reason to hold that the compensation granted by the Tribunal under other heads are on the lower side. In short, the appellant is entitled to get only an additional compensation of Rs.51,500/-. It is awarded. The said additional **M.A.C.A.No.1299/2012** 6 compensation will carry interest at the rate of 8% per annum from the date of the petition till realisation. Despite the finding of the Tribunal that the respondents are jointly and severally liable to compensate the appellant and held that the third respondent is liable to indemnify the insured-owner of the vehicle, none of the respondents have preferred any appeal against the award passed by the Tribunal. In such circumstances, the third respondent is directed to deposit the aforesaid additional compensation along with interest thereon within one month from the date of receipt of a copy of this judgment. The appeal is disposed of as above. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN** **(JUDGE)** **spc/** **M.A.C.A.No.1299/2012** 7 **C.T. RAVIKUMAR, J.** **M.A.C.A.No.1299/2012** 8 **JUDGMENT September, 2010**