Rajeev V.R. v. MujeeB Rahiman and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **MONDAY, THE 25TH DAY OF SEPTEMBER 2017/3RD ASWINA, 1939** ## **MACA.NO. 1181 OF 2012 () -------------------------** **AGAINST THE AWARD IN O.P.(M.V.) NO.2/2008 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI DATED 03-02-2012** **--------------------** ## **APPELLANT(S)/PETITIONER:** **-----------------------** **RAJEEV V.R., AGED 33 YEARS, S/O.RAJAPPAN, VALIYAKKALLINGAL HOUSE, P.O. MURAMPATHI, VIA, KODANCHERI,KOZHIKODE DISTRICT.** ## **BY ADV. SRI.P.SAMSUDIN** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** ## **1. MUJEEB RAHIMAN** **S/O.KUNJIMOHAMMED, NALAKATH HOUSE,MUTHI, POROOR.P.O, WANDOOR, MALAPPURAM DISTRICT-679328.(DRIVER).** **2. KUNHIKAMMU,** **S/O.KUNHALIKUTTY,PUTHUMANNIL HOUSE, KARIMAMMALIPADI, EDRIKODE.P.O, TIRUR,MALAPPURAM DISTRICT-676101.(OWNER).** **3. THE ORIENTAL INSURANCE COMPANY LIMITED, BRANCH OFFICE,JASEELA COMPLEX, NILAMBUR ROAD, MANJERI-676121.(INSURER).** **R3 BY ADV. SRI.A.R.GEORGE BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-09-2017, ALONG WITH M.A.C.A.NO.1182/2012 AND M.A.C.A.NO. 1203/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** ## **-----------------------M.A.C.A. Nos.1182, 1203 & 1181 of 2012** ## **---------------------------------Dated this the 25[th] day of September, 2017** ## **J U D G M E N T** These appeals are preferred against the award in O.P.(M.V.) Nos.1318 of 2007, 1319 of 2007 and 2 of 2008 of the Motor Accidents Claims Tribunal, Manjeri by the injured. The appellants sustained injuries in a motor accident on 16.09.2007 at midnight while they were returning from their common workplace (a canteen attached to a theatre at Manjeri). Immediately they were removed to hospital. The learned tribunal awarded an amount of Rs.39,921/- with 9% interest per annum from the date of petition till realisation in O.P.(M.V.) No.1318 of 2007, an amount of Rs.35,102/- with 9% interest per annum from the date of petition till realisation in O.P. (M.V.) No.1319 of 2007 and an amount of Rs.27,145/with 9% interest per annum from the date of petition till realisation in O.P.(M.V.) No. 2 of 2008. Being aggrieved by that, they preferred these appeals. The petitioner in O.P.(M.V.) No.1318 of 2007 preferred M.A.C.A M.A.C.A. Nos.1181, 1182 & 1203 of 2012 2 No.1182/2012, the petitioner in O.P.(M.V.) No.1319 of 2007 preferred M.A.C.A No.1203 of 2012 and the petitioner in O.P.(M.V.) No.2/2008 preferred M.A.C.A No.1181/2012. 2. The claimants case in the lower court was that on 16.09.2007, while they were proceeding through the Manjeri- Kozhikode public road, the offending auto rickshaw driven in a rash and negligent manner knocked down them from behind. The driver and owner of the vehicle were set ex-parte in the court below. The insurance company admitted the insurance of the vehicle but contended that there was violation of the policy conditions, the driver was not holding a valid driving licence on the date of accident. The petitioners did not adduce any oral evidence. In the trial court, the petitioner's exhibits were marked as Exts.A1 to A14(t) series. Exts.X1 to X3 were marked as third party exhibits. Respondent's evidence consists of documentary evidence of Exts.B1 to B3. 3. Apex Court in **Rajkumar** v. **Ajay Kumar** M.A.C.A. Nos.1181, 1182 & 1203 of 2012 3 **and Anr. [2011 ACJ 1]** held that the injured is entitled to get just amount of compensation which reads as follows: (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. In another decision **Syed Sadiq and Others** v. **Divisional Manager, United India Insurance Company Limited (2014) 2 Supreme Court Cases** M.A.C.A. Nos.1181, 1182 & 1203 of 2012 4 **735** the Apex Court held that where the injured is working as a coolie and he stated that he was earning Rs.4,000/- per month as his monthly income, in the absence of any other documentary evidence, that income has to be admitted. In **Syed's** case **(Supra)** , the trial court reduced the income from Rs.4,500/- to Rs.3,000/but in view of the direction of the Apex Court, the statement of the injured has to be admitted. In view of the decision of the apex court in **Syed's (Supra)** the appellants in these appeals are entitled to get Rs.4,500/as monthly income as they claimed and the tribunal cannot reduce the income stated by the appellants in the absence of any evidence. 4. The appellant in M.A.C.A. No.1182 contended that he sustained serious injuries in the accident. Ext.A2 is the wound certificate issued from Malabar Hosptial, Manjeri which shows that the appellant sustained compression fracture of thoracic lumber spin T2 and L1, transverse process fracture L5 right lumber spin and contusion left knee joint. X-ray investigation M.A.C.A. Nos.1181, 1182 & 1203 of 2012 5 shows that fracture T12 transverse procedure. Ext.A4 series are the medial bills for Rs.4,061/-. The injured was examined by the Medical board at District Hospital, Manjeri, where they issued Ext.X1 report. There was minimal restriction of flexion of the spine and the petitioner was complaining of pain while lift weighting. Ext.X3 shows 3% permanent disability. Learned counsel appearing for the appellant contended that the appellant was aged 28 years at the time of accident and was earning an amount of Rs.4,500/- per month, but the learned tribunal took Rs.3,000/- alone as his monthly income, which is very low. Hence he is entitled to get the following amounts as enhanced compensation: Loss of income for three months Rs.13,500/- (Rs.4,500x3) The learned tribunal already granted Rs.9,000/- on that head. Hence, the balance is Rs.4,500/-. The trial court took the multiplier at 17 for calculating the Permanent disability. While considering his income as Rs.4,500/- per month, he is entitled to get Rs.27,540/-. (Rs.4,500x12x17x3%) for loss of earning power. The M.A.C.A. Nos.1181, 1182 & 1203 of 2012 6 learned tribunal already awarded Rs.18,360/- for loss of earning power. Therefore, the balance comes to Rs.9,180/-. Pain and sufferings additional Rs.7,500/- and for Loss of amenities additional Rs.10,000/-. Hence the appellant in M.A.C.A. No.1182 of 2012 is entitled to get an additional compensation of Rs.31,180/- (Rupees thirty one thousand one hundred and eighty only). 5. The appellant in M.A.C.A. No.1203/2012 sustained fracture humorous right arm, contusion on back and contusion right buttock. Ext.A5 is the medical certificate issued from Malabar Hospital, Manjeri. X-ray investigation shows fracture humorous right. According to the Medical Board, District Hospital, Manjeri, he sustained 5% permanent disability but the appellant did not adduce any oral evidence to show that the above disability affected his earning capacity. In the absence of such evidence, the learned tribunal did not consider that claim. Considering the nature of injuries sustained to him, the following amounts are granted as additional compensation. Loss of income for three months M.A.C.A. Nos.1181, 1182 & 1203 of 2012 7 Rs.13,500/- (Rs.4,500x3). The learned tribunal already awarded Rs.9,000/- on that head, hence the balance comes to Rs.4,500/-, Pain and sufferings Rs.4,000/-, Extra nourishment Rs.2,000/-, loss of amenities Rs.7,000/-. The total enhanced compensation is Rs.17,500/-. 6. The appellant in M.A.C.A. No.1181/2012 sustained compression fracture neck of fibula right leg, contusion right knee, large haematoma and lacerated wound right eyebrow 10x4x1 cms. Ext.A11 is the wound certificate. Ext.A12 is the discharge card. Ext.A14 is the medical bill for Rs.6,124/- He was also examined by the Medical Board and issued Ext.X3 disability certificate. He has a permanent disability of 1%. Learned tribunal awarded an amount of Rs.27,145/- with 9% interest per annum from the date of petition till realisation. But, considering the nature of injury the following additional amounts are hereby granted as enhanced compensation. Loss of income for three months Rs.13,500/(Rs.4,500x3). The learned tribunal already awarded Rs.9,000/- on that head, hence the balance comes to M.A.C.A. Nos.1181, 1182 & 1203 of 2012 8 Rs.4,500/-. The learned tribunal granted Rs.6,120/- for loss of earning power by considering his monthly income as Rs.3,000/- but in view of the decision in Syed's case (supra) he is entitled to get Rs.9,180/(4,500x12x17x1/100). The balance comes to Rs.3,060/(Rs.9180/- - Rs.6,120/-). Loss of amenities Rs.5,000/-. The total enhanced compensation comes to Rs.12,560/-. Accordingly, the appellant in M.A.C.A. No.1182/2012 is entitled to get an amount of Rs.31,180/-, the appellant in M.A.C.A. No.1203/2012 is entitled to get an amount of Rs.17,500/- and the appellant in M.A.C.A. No.1181/2012 is entitled to get an amount Rs.12,560/- as enhanced compensation. 7. The driver of the vehicle was not holding a valid driving licence and the learned tribunal directed the insurance company to satisfy the award and reimburse the amount from the owner. Even though a receipt was issued, there is no appearance for the owner. In the circumstance, the insurer is directed to satisfy the additional amounts of compensation Rs.31,180/- (Rupees M.A.C.A. Nos.1181, 1182 & 1203 of 2012 9 thirty one thousand one hundred and eighty only) in M.A.C.A. No.1182/2012, Rs.17,500/- (Rupees seventeen thousand five hundred only) in M.A.C.A. No.1203/2012 and Rs.12,560/- (Rupees twelve thousand five hundred and sixty only) in M.A.C.A. No.1181/2012 with 9% interest and proportionate cost within thirty days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest. The insurer is at liberty to reimburse the amounts from the owner of the vehicle as per law. These appeals are disposed of above. Sd/- **P.D. RAJAN, JUDGE** NS / True Copy / P.A. To Judge