Rahhoof v. Najeeb and The Oriental Insurance Company Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 29[TH] DAY OF MARCH 2023 / 8TH CHAITHRA, 1945 ``` ``` MACA NO. 1122 OF 2011 ``` ``` AGAINST THE AWARD DATED 14.03.2011 IN O.P(M.V) NO.1049/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI. ``` ## **`APPELLANT/PETITIONER:`** ``` RAHOOF, S/O UMMER, THUPPILIKKAT HOUSE, VENGARA, MALAPPURAM DISTRICT. BY ADV SRI.K.M.SATHYANATHA MENON ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1NAJEEB, S/O MOHAMMED, PADAPPALLI HOUSE, KOORIYAD.P.O., DISTRICT-676 306. 2THE ORIENTAL INSURANCE COMPANY LTD., JASEELA COMPLEX, NILAMBUR ROAD, MANJERI, MALAPPURAM DISTRICT. PIN-676 121. BY ADV SRI.TITUS MANI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1122 of 2011 ``` ``` 2 ``` ## **`JUDGMENT`** ## **`Dated this the 29[th] day of March, 2023`** The appeal on hand is directed against an award passed by Motor Accidents Claims Tribunal, Manjeri (for short 'the Tribunal') on 14.03.2011 in O.P (M.V) No.1049/2007. The appellant is the petitioner before the Tribunal. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 and 2 in accordance with their status in the Original Petition. 3. The above Original Petition was filed by the petitioner before the Tribunal seeking for a sum of ₹3,00,000/- as compensation for the injuries sustained by him in a motor accident occurred at about 22:30 hrs on 09.07.2007. Compensation was claimed from the owner and insurer of the Motorcycle bearing ``` M.A.C.A.No.1122 of 2011 ``` ``` 3 ``` Registration No.KL 7X 7881. The Tribunal has arrived at a total sum of ₹1,92,511/- as the compensation payable to the petitioner and the 2[nd] respondent, the insurer of the Motorcycle was directed to deposit the amount in favour of the petitioner with interest at the rate of 9% per annum from the date of filing of the Original Petition till the date of realisation. Aggrieved by the quantum of compensation stood awarded by the Tribunal, the petitioner is now before this Court as appellant. 4. It is contended by Sri.K.M.Sathyanatha Menon, the learned counsel, petitioner claimed to be aged 23 years and a Mason by profession earning ₹7,500/- as monthly income. According to him, despite raising such pleas in the Original Petition, the Tribunal fixed the monthly income only as ₹3,500/- on a notional basis. According to him, the petitioner is ``` 4 ``` ``` M.A.C.A.No.1122 of 2011 ``` aggrieved by the fixation of the monthly income accordingly and re-fixation of it is warranted on the basis of the dictum in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , where ₹4,500/- was fixed as the monthly income of a coolie worker, who succumbed to the injuries sustained in a motor accident occurred in the year 2004. It was further contended by the learned counsel that compensation for loss of earning was calculated on the basis of the monthly income fixed only as ₹3,500/-. The Tribunal has awarded ₹21,000/- as compensation towards full loss of earnings and ₹5,250/- towards, partial loss of earnings. Thus, a total sum of ₹26,250/- was arrived at. 5. It was further contended that ₹500/- and ₹1,100/- respectively were awarded by the Tribunal as ``` M.A.C.A.No.1122 of 2011 ``` ``` 5 ``` compensation towards transportation expenses and bystander expenses. It is further pointed out that the Tribunal failed to award compensation towards extra nourishment. According to the learned counsel, ₹20,000/- and ₹5,000/- respectively stood awarded by the Tribunal as compensation towards pain and suffering and loss of amenities and enjoyments in life being inadequate, interference and modification by this Court is highly warranted. 6. Petitioner was examined by the Medical Board of District Hospital, Manjeri and 7% was assessed as his permanent disability. It is noticed from the impugned award that compensation for disability was assessed by the Tribunal by considering 7% itself as the permanent disability. But, the monthly income notionally fixed being ₹3,500/- only an inadequate sum was arrived at as compensation. ``` M.A.C.A.No.1122 of 2011 ``` ``` 6 ``` 7. As per the claim of the petitioner, he was a Mason by profession. Having due regard to the year in which the motor accident was occurred and the cost of living and price index prevalent then, the monthly income is re-fixed as ₹6,000/-. Loss of earning was calculated by the Tribunal on a split basis. It took three months for the purpose of granting compensation towards loss of earnings in partial and six months for granting compensation towards loss of earning in full. 8. It is found from Ext.A2, wound certificate and Ext.A3 discharge summary that the petitioner was treated at Moulana Hospital, Perinthalmanna, following the injuries sustained in the motor accident. He was treated there in two spells. During the first spell of treatment, petitioner had undergone an operation, and wound debridement and during the 2[nd] spell, another operation, for removing the implants laid. Petitioner ``` M.A.C.A.No.1122 of 2011 ``` ``` 7 ``` had sustained comminuted fracture on both bones of his right leg and complete tear of medial collateral ligament. He had also sustained a depressed fracture on zygomatic complex and a lacerated wound 5x3 cm on left forehead involving upper eye lid, another lacerated wound 7x3 cm on right leg, tenderness of 2[nd] teeth of lower jaw and loss of 3[rd] teeth of right lower jaw. In the CT Scan of brain, brain oedema was detected. 9. It is found that the compensation stood awarded by the Tribunal under all heads are on the lower side calling for interference and enhancement. Thus, ₹20,000/- and ₹5,000/- respectively stood awarded by the Tribunal as compensation towards pain and suffering and loss of amenities and enjoyments in life are modified and enhanced to ₹50,000/- and ₹25,000/- respectively. Thus, the petitioner will get ``` M.A.C.A.No.1122 of 2011 ``` ``` 8 ``` ₹30,000/- and ₹20,000/- respectively as additional compensation under those heads. 10. The disability of the petitioner was assessed by the Medical Board as 7% and that itself was taken into consideration by the Tribunal for calculation of compensation for disability. When compensation is reassessed on the basis of the monthly income modified as ₹6,000/- and by maintaining all other factors adopted by the Tribunal, ₹90,720/- (₹6,000/- x 12 x 18 x 7/100) is arrived at. ₹52,920/- stood awarded by the Tribunal as compensation under that head when adjusted against the sum now arrived at, the petitioner will get ₹37,800/- (₹90,720/- - ₹52,920/-) as additional compensation towards permanent disability. 11. This Court is inclined to take eight months for calculating compensation for loss of earning. When calculated accordingly, ₹48,000/- (₹6,000/- x 8) is ``` M.A.C.A.No.1122 of 2011 ``` ``` 9 ``` arrived at. ₹26,250/- being the total sum stood awarded as compensation towards loss of earning and that when adjusted against the sum now arrived at, petitioner will get ₹21,750/- (₹48,000/- - ₹26,250/-) as additional compensation. 12. Sums stood awarded as compensation towards transportation expenses, damages to clothing, and bystander expenses are also modified to ₹2,000/-, ₹1,000/- and ₹4,000/- respectively and thus, the petitioner will get ₹1,500/-, ₹750/-, and ₹2,900/-, respectively as additional compensation. ₹3,000/- is also awarded afresh as compensation towards extra nourishment. 13. In the above manner of calculation of compensation afresh, the petitioner will get ₹1,17,700/- (₹30,000/- + ₹20,000/- + ₹37,800/- + ₹21,750/- + ₹3,000/- + ₹1,500/- + ₹2,900/- + 750/-) ``` 10 ``` ``` M.A.C.A.No.1122 of 2011 ``` (Rupees One Lakh Seventeen Thousand Seven Hundred only) as total additional compensation, which will also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 2[nd] respondent shall pay the additional compensation alongwith interest accrued on it, within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A. is allowed accordingly. Sd/- **MARY JOSEPH JUDGE** WW