Rajeev v. Badarudeen and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ``` MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945 ``` ## **`MACA NO. 1367 OF 2013`** ## **`AGAINST THE ORDER/JUDGMENT IN OPMV 511/2010 OF MOTOR ACCIDENT`** ## **`CLAIMS TRIBUNAL, KOLLAM`** ## **`APPELLANT/PETITIONER:`** ``` RAJEEV, S/O.SURENDRAN PILLAI AGED 28 YEARS RAJESH BHAVAN, NORTH OF SOMAVILASAM MARKET, MYNAGAPPALLY MURI, MYNAGAPPALLY VILLAGE, KUNNATHOOR TALUK ``` ``` BY ADV SRI.C.RAJENDRAN ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 BADARUDEEN, S/O.MYDEEN KUNJU KUREETHARA KIZHAKKATHIL, PULIYOOR VANCHI EAST, THDIYOOR,KARUNAGAPPALLY-690523`** - **`2 OMANAKUTTAN S/O.KUTTAPPAN, KUTIYIL, MANAPPALLY SOUTH, THAZHAVA P O,-690523`** - **`3 THE BRANCH MANAGER THE NEW INDIA ASSURANCE CO LTD, ALAPPUZHA-688001 BY ADVS. SRI.P.V.DILEEP SRI.PMM.NAJEEB KHAN`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1367 OF 2013 ``` **==> picture [37 x 9] intentionally omitted <==** ## **J U D G M E N T** The appellant is the petitioner in O.P.(MV)No.511 of 2010 on the files of the Motor Accidents Claims Tribunal, Kollam. 2. The said claim petition was filed by the appellant, seeking compensation for the injuries sustained in a motor accident that occurred on 22.10.2009. According to him, the accident occurred when the appellant was travelling on a motor cycle, it was hit by a lorry driven by the 2[nd] respondent in a rash and negligent manner. The appellant sustained serious injuries in the accident, consequent to which his left leg was amputated below the knee. According to him, he was aged 28 years at the time of the accident, and he was engaged in a brick business with a monthly income of Rs.5,000/-. The claim petition was submitted in such circumstances, seeking compensation. 3. The 1[st] and 2[nd] respondents, the owner and the driver of the lorry, filed a written statement denying the ``` MACA NO. 1367 OF 2013 ``` **==> picture [37 x 9] intentionally omitted <==** negligence on their part. It was also contended that the lorry was insured by the 3[rd] respondent, and even if any liability was found, the same has to be indemnified by them. The 3[rd] respondent, the insurer of the lorry, filed a written statement admitting the coverage of the policy with respect to the said vehicle. However, they disputed the liability on the various grounds, including negligence as well as the quantum of compensation. 4. The said claim petition was tried along with OP(MV) No. 509 of 2010 in respect of the claim that arose from the very same accident. The evidence in this case consists of the oral testimony of PW1 and documentary evidence to Exts.A1 to A13 from the side of the appellants. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the driver of the lorry and being the insurer of the said vehicle, the 3[rd] respondent was held liable to pay the compensation. 5. The quantum of compensation was fixed at ``` MACA NO. 1367 OF 2013 ``` **==> picture [37 x 9] intentionally omitted <==** Rs.6,27,000/- and the 3[rd] respondent was directed to deposit the said amount with interest at the rate of 7.5% per annum from the date of petition till realisation. This appeal is filed by the appellants in such circumstances being dissatisfied with the quantum of compensation. 6. Heard Sri. C.Rajendran, the learned counsel appearing for the appellant, Adv.Sri. P.V. Dileep, the learned Counsel appearing for the first and second respondents and Adv.Sri. P.M.M. Najeeb Khan, the learned counsel appearing for the 3[rd] respondent. 7. The only question that arises for consideration is whether any enhancement of compensation is warranted. The learned counsel for the appellant points out that the amounts awarded by the Tribunal under various heads are grossly inadequate, particularly under the head of disability. After carefully going through the records, I find force in the said contention, even though the same was opposed by the learned counsel appearing for the 3[rd] respondent. ``` MACA NO. 1367 OF 2013 ``` **==> picture [37 x 9] intentionally omitted <==** 8. Of course, it is true that no disability certificate was produced by the appellant, but the Tribunal accepted the disability as 30%. It is to be noted that the disability suffered by the appellant is amputation of the left leg below the knee, and the same is an injury included in the schedule I of the Employees Compensation Act, 1923, as per which the loss of earning power consequent to such an injury is 50%. In the absence of any other evidence, I am of the view that the same can be accepted for assessing the compensation. As the disability suffered by the appellant is substantial, future prospects should also be taken into consideration. As he was aged 28 years at the time of the accident, 40% is the addition to be made in this regard in **National Insurance Company Ltd., v. Pranay Sethi [2017(4) KLT 662(SC)].** 9. The next aspect to be considered is the monthly income. The appellant claimed to be a businessman with a monthly income of Rs.5,000/- but the Tribunal accepted Rs.4,000/- only, which appears to be on the lower side. The ``` MACA NO. 1367 OF 2013 ``` **==> picture [37 x 9] intentionally omitted <==** accident in this case occurred in 2009, and therefore, under no circumstances, the monthly income of Rs.5,000/could be treated as unreasonable. It is to be noted in this regard that, the Hon’ble Supreme Court **in Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co. Ltd [(2011) 13 SCC 236)** was pleased to take the monthly income of an ordinary worker as Rs. 4,500/- for the year 2004. . Therefore, for assessing the compensation, the monthly income is fixed at Rs.5,000/-. 10. Thus, while re-assessing the compensation for disability and the consequential earning capacity with the above criteria, the amount would come to Rs.7,14,000/(Rs.5000+40%) X 12 X 17 X 50/100. The amount already awarded by the Tribunal under this head is Rs.2,44,800/and thus, the additional amount would come to **Rs.4,69,200/-** . 11. The Tribunal awarded compensation for loss of earnings for a period of six months, and the said period ``` MACA NO. 1367 OF 2013 ``` **==> picture [37 x 9] intentionally omitted <==** appears to be reasonable. Therefore, consequent to the revision of monthly income, a further sum of **Rs.6,000/-** is awarded under the said head. Similarly, considering the nature of injuries and treatment that the appellant had undergone, I deem it appropriate to grant a further sum of **Rs.10,000/-** under the head of pain and suffering. Even though the learned counsel for the appellant sought some additional amount for loss of amenities, it is seen from the award that the Tribunal has already granted compensation of Rs.1,22,400/- under the said head, which is reasonable. Therefore, further enhancements need not be granted under the said head. 12. The other contention raised by the learned counsel for the appellant is with respect to the expenses towards the purchase of artificial limb. However, the learned counsel for the 3[rd] respondent/insurer opposes the said contention by pointing out that no documents were produced to establish the expenses that he incurred. However, the appellant will certainly incur expenses for ``` MACA NO. 1367 OF 2013 ``` **==> picture [37 x 9] intentionally omitted <==** the same. It is to be noted that he sustained the said injuries at the young age of 28 years, and to live with those disabilities, he may require the assistance of an artificial limb. Therefore, some amount is to be granted for the said purposes. It is also to be noted in this regard that even if the artificial limb is purchased and installed, that may require periodic expenses from year to year. In such circumstances, a further sum of **Rs.2,00,000/-** is granted for the artificial limb and its maintenance. 13. Accordingly the total additional amount compensation is determined as **Rs.6,85,200/-** (Rs.4,69,200/- + 6,000/- + 10,000/- + 2,00,000/- ) In the result, this appeal is allowed, and the award dated 14.09.2012 in OP(MV)No.511/2010 passed by the Motor Accidents Claims Tribunal, Kollam is hereby modified by granting an additional amount of **Rs.6,85,200/-** (Rupees Six Lakhs Eighty Five thousand Two hundred only). Out of the said amount, Rs.4,85,200/(Rupees four lakhs eighty five thousand and two hundred ``` MACA NO. 1367 OF 2013 ``` **==> picture [37 x 9] intentionally omitted <==** only) will carry interest at the rate as ordered by the Tribunal from the date of petition till realization whereas the amount of Rs.2,00,000/- (Rupees two lakhs only) awarded towards the artificial limb and the maintenance, will carry interest at the same rate from the date of the award passed by the Tribunal. The said amount shall be deposited by the 3[rd] respondent within a period of three months from the date of receipt of a copy of this judgment. ## **Sd/-** ## **ZIYAD RAHMAN A.A,** ## **JUDGE** LU