Rahimkutty v. Afroos Ali and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 26[TH] DAY OF AUGUST 2022 / 4TH BHADRA, 1944** **MACA NO. 1729 OF 2013** **AGAINST THE AWARD DATED 06.05.2013 IN OP(MV)NO.1128/2009 OF** **MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM** ## **APPELLANT/PETITIONER :** **RAHIMKUTTY AGED 49 YEARS S/O.YUSUF KUNJU, THADATHIL HOUSE, ELAMPALLOOR, KUNDARA, KOLLAM DISTRICT.** **BY ADV SRI.R.SATISH KUMAR** ## **RESPONDENTS/RESPONDENTS :** **1 AFROOS ALI, HOUSE NO.7/851, PALAMADATHIL HOUSE, MOONNIYOOR P.O., MALAPPURAM DISTRICT, PIN-676311.** **2 RIYAS, PALAMADATHIL MOOKKUNNEL HOUSE, MOONNIYOOR P.O., MALAPPURAM DISTRICT, PIN-676311.** - **3 THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO., KOLLAM, PIN-691001.** **4 THE SECRETARY, PARAPPANANGADI MOTOR TRANSPORT CO-OPERATIVE SOCIETY, PARAPPANANGADI, MALAPPURAM DISTRICT, PIN-676303.** MACA No.1729 of 2013 ..2.. - **5 MUHAMMED HAFSAL, JAWSLYA MANZIL, KADAKATTU PARA, PIN-676303.** - **6 THE MANAGER, SHRIRAM GENERAL INSURANCE COMPANY, ERNAKULAM, PIN-682013.** **BY ADVS. SRI.ARUN MATHEW VADAKKAN SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1729 of 2013 ..3.. ## **MACA No.1729 of 2013 -----------------------------------------------** ## **J U D G M E N T** This is an appeal filed by the claimant in O.P. (MV)No.1128 of 2009 on the file of Motor Accidents Claims Tribunal, Kollam, challenging award dated 06.05.2013. The respondents herein are the respondents before the Tribunal. 2. Heard the learned counsel for the appellant as well as the learned Standing Counsel for the sixth respondent. No representation for the third respondent and other respondents. 3. Brief facts of the case are as follows: In this case, the appellant who was a traveller in an autorickshaw bearing Registration No.KL-55/8151 MACA No.1729 of 2013 **==> picture [46 x 8] intentionally omitted <==** being victim of the same, when a Hyundai Varna Car bearing Registration No.KL-09/U 6001 driven by the second respondent in a rash and negligent manner hit on the above autorickshaw attributed negligence on the part of the second respondent, the driver of the Hyundai car in the matter of accident and accordingly, lodged claim under Section 166 of the Motor Vehicles Act before the Tribunal. 4. R1, R2, R4 and R5 were set ex parte before the Tribunal. 5. R3, the insurer of the Hyundai Varna Car and R6, the insurer of the autorickshaw filed separate written statements disputing accident as well as negligence. Quantum of compensation also was disputed. 6. The Tribunal recorded the evidence of PW1 to PW6 and marked Exts.A1 to A20 on the part of the MACA No.1729 of 2013 **==> picture [46 x 8] intentionally omitted <==** appellant. No evidence let in by the respondents. On appreciation of the evidence, the Tribunal granted Rs.1,47,000/- along with 7.5% interest as against the claim of Rs.11,50,000/-. 7. The learned counsel for the appellant, who assailed the award of the Tribunal, would submit that the Tribunal considered Rs.6,000/- as the monthly income for calculating the disability income and the same is on the lower side. He also submitted that the compensation granted under various heads, in a case involving serious injuries is inadequate and therefore, just compensation being pressed into. According to him, the appellant who retired as a Panchayath Secretary would get Rs.15,000/atleast as retirement income and therefore, the said sum is to be fixed as the monthly income to calculate loss of post retirement disability. MACA No.1729 of 2013 ..6.. 8. The learned counsel for the sixth respondent would submit that the sixth respondent is only a former party, since no award, in fact, passed by the Tribunal, fastening liability on the sixth respondent. In this case, the appellant was working as head clerk and he was permanently employed at the time of accident and now he retired from service. Therefore, the disability income needs to be calculated applying post retirement multiplier and therefore, multiplier applied by the Tribunal as '9' is correct. 9. However, on perusal of Ext.A7, treatment certificate issued from Dental College, Kozhikode would go to show that the appellant sustained fracture mandible, right ankle and left para symphysis and wound on the labial silas of lower part. As per Ext.A16, reference card issued from Medical College Hospital, MACA No.1729 of 2013 **==> picture [46 x 8] intentionally omitted <==** Kozhikode, he was treated for a period between 24.02.2009 to 09.03.2009 for mandible correction. Periodical review also could be gathered from Ext.A16, reference card. The Tribunal accepted 10% disability. Since there was dispute in the matter of disability insofar as the appellant is concerned, this Court, as per order dated 15.11.2013 referred the appellant to the Medical Board attached to Medical College Hospital, Thiruvananthapuram and the Superintendent, Medical College Hospital, Thiruvananthapuram, as per letter dated 12.12.2013, produced a disability certificate suggesting that 'it has been found that the disability is permanent and partial, the degree of disabilities have been found as 13%. There is no loss of earning capacity'. In view of the production of disability certificate, the same is marked as Ext.X1 in this appeal and the MACA No.1729 of 2013 ..8.. disability shown in Ext.X1 as 13% is accepted. 10. Another crucial aspect in this case is what is the income to be considered in this matter for calculating post retirement disability. The Tribunal granted Rs.6,000/-. It may be justified, if the appellant is a person doing ordinary work. Though no representation for the third respondent insurance company, the learned counsel for the sixth respondent being panel lawyer opposed increase in the monthly income for calculating post retirement disability. She submitted that Rs.15,015/- is the monthly income as per Ext.A9, salary certificate produced by the appellant and therefore, ½ of the said amount can be considered for granting post retirement disability. In the case on hand, evidently the appellant is a person employed in Government service and had been working as head clerk MACA No.1729 of 2013 ..9.. in Panchayath at the time of accident. It is submitted by the learned counsel for the appellant that now the appellant got retired from the post of Panchayath Secretary. In fact, post retirement income, following the ratio in [(2011) 13 SCC 236], **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** , could not be justified, in the facts of the given case. In view of the matter, deviation from the general rule is necessary to fix the monthly income to assess post retirement disability. 11. As discussed above, I am of the view that Rs.10,000/- can be fixed as the monthly income in this particular case. Therefore, disability income is recalculated as under; 10,000x12x10x13%=1,56,000/- Out of which, Rs.64,800/-was granted by the MACA No.1729 of 2013 ..10.. Tribunal. Rs.1,56,000-64,800= **Rs.91,200/-** more is granted under the head loss of disability income. 12. In this case, prolonged treatment as out patient, after inpatient treatment, could be gathered. In Ext.X1 disability certificate issued by the Medical Board as directed by this Court would go to show that facial disfigurement also is there along with neural sensory deficit of right mental nerve. Since facial disfigurement involves, the same requires to be compensated, since facial disfigurement would affect the individuality and physical stature of the appellant in his future life. In view of the matter, under the said head **Rs.15,000/-** more is granted. Towards pain and sufferings, **Rs.10,000/-** more is granted. Apart from that, **Rs.10,000/-** more is granted under the head loss of amenities. MACA No.1729 of 2013 **==> picture [52 x 8] intentionally omitted <==** In the result, this appeal is allowed. It is ordered that the appellant is entitled to get enhanced compensation to the tune of **Rs.1,26,200/-** (Rupees One lakh Twenty Six Thousand Two Hundred only) at the rate of 7.5% interest granted by the Tribunal excluding the amount already granted by the Tribunal from the date of petition till the date of deposit or realisation. The insurance company is directed to deposit the same in the name of the appellant within two months from today and on deposit, the appellant is at liberty to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE** rkj MACA No.1729 of 2013 **==> picture [52 x 8] intentionally omitted <==** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT X1 : TRUE COPY OF DISABILITY CERTIFICATE ISSUED BY THE MEDICAL BOARD & SUPERINTENDENT, MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM DATED 02.12.2013**