Rasheed K. S/o Late Alavi v. The Branch Manager, The New India Assurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 1ST DAY OF JUNE 2017/11TH JYAISHTA, 1939 MACA.No. 1546 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 401/2007 of MACT, KALPETTA DATED 29-10-2011 APPELLANT(S)/APPELLANT/PETITIONER: --------------------------------- RASHEED K. S/O.LATE ALAVI, KAIPPANGADAN HOUSE, KOLAMPETTA, KAKKAVAYAL POST, WAYANAD DISTRICT. BY ADV. SMT.CELINE JOSEPH RESPONDENT(S)/REPSONDENT NO.3: ------------------------------ THE BRANCH MANAGER THE NEW INDIA ASSURANCE COMPANY LTD., M.G.T. BUILDINGS, KALPETTA-673121. BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR &** ## **ANIL K. NARENDRAN, JJ.** ## **========================== M.A.C.A. No.1546 OF 2012 ==========================** Dated this the 1[st ] day of June, 2017 ## **JUDGMENT** _Anil K Narendran, J._ This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Kalpetta dated 29.10.2011 in O.P.(MV). No.401 of 2007, an application filed by the appellant herein under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained in a motor vehicle accident occurred on 21.5.2007 while he was travelling as a pillion rider on a motor cycle bearing Reg.No.KL-12/A 3341, ridden and owned by respondents 1 and 2 before the Tribunal and insured with the respondent herein (3[rd] respondent before the Tribunal). Due to the rash and negligent riding of the motor cycle by the 1[st] respondent rider, it capsized and the appellant sustained injuries. Claiming a total compensation of Rs.3,00,000/- for the injuries sustained in the accident, claim petition was filed before the Tribunal. 2. Before the Tribunal, the claimant was examined as PW1 and Exts.A1 to A11 were marked on his side. The disability certificate M.A.C.A.1546/2012 2 was marked as Ext.C1. The respondents have not chosen to adduce any oral or documentary evidence. 3. After considering the evidence on record, the Tribunal arrived at the conclusion that the accident occurred due to the rash and negligent riding of the motor cycle by the first respondent rider. Since the vehicle is covered by a valid package policy, the third respondent insurer (sole respondent in this appeal) was held liable to indemnify the second respondent owner. Under different heads, the Tribunal awarded a total compensation of Rs.1,52,400/- and the insurer was directed to deposit the said amount before the Tribunal together with interest @ 7.5% per annum and proportionate cost. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 5. We heard the learned counsel for the appellant/claimant and also the learned counsel for the respondent insurer. 6. In the accident occurred on 21.5.2007, the appellant had sustained the following injuries, which is evident from Ext.A8 wound certificate:- “Fracture to left clavicle, fracture to the 1[st] , 3[rd] , 4[th] , 5[th] , 6[th] and 7[th] ribs, fracture to both bones M.A.C.A.1546/2012 3 left forearm and fracture to right 2[nd] and 3[rd] metatarsals.” Details of the inpatient treatment the appellant had undergone for a period of 38 days is evident from the discharge card and other medical records. Ext.C1 disability certificate would show that due to the injuries sustained in the accident, the appellant is having 10% permanent disability. 7. Before the Tribunal, the appellant contended that he is conducting an upholstery shop and earning an average monthly income of Rs.15,000-20,000. Though the appellant was examined as PW1, no relevant materials like the licence issued by the local authority, were produced to prove his income. The appellant has only produced Ext.A11 lease agreement which was one executed only on 25.6.2010, as admitted by him during cross examination. It was in the absence of any reliable materials that the Tribunal notionally fixed his monthly income as Rs.3,000/-. 8. At the time of accident, the appellant was aged 28 years. Applying the multiplier of 18 and the percentage of disability as 10% as certified in Ext.C1, the Tribunal awarded a sum of Rs.64,800/(3,000x12x18x10/100) as disability compensation. 9. Considering the fact that the accident is of the year 2007 M.A.C.A.1546/2012 4 and at the time of the accident, the appellant was an able bodied person aged 28 years, we deem it appropriate to re-fix his monthly income notionally at Rs.5,500/- for calculating compensation under different heads. In view of the judgment of the Apex Court in **Sarla** **Verma v. Delhi Transport Corporation [2010 (2) KLT 802],** the proper multiplier applicable is only 17. Therefore, on notional fixation of monthly income as Rs.5,500/-, the compensation for permanent disability has to be reworked as Rs.1,12,200/(5,500x12x17x10/100). After deducting Rs.64,800/- awarded by the Tribunal under this head, the appellant will be entitled for an additional compensation of **Rs.47,400/-** . 10. Towards loss of earning, the Tribunal awarded a sum of Rs.24,000/- @ Rs.3,000/-, for a period of eight months. Since we have already re-fixed the monthly income of the appellant notionally at Rs.5,500/-, the compensation payable under this head will come to Rs.44,000/- (5,500x8), resulting an additional compensation of **Rs.20,000/-** . 11. Towards bystanders expenses, the Tribunal awarded a sum of Rs.3,800/- @ Rs.100/- for a period of 38 days. Considering the fact that the accident is of the year 2007, we deem it appropriate to M.A.C.A.1546/2012 5 re-fix the compensation under this head @ Rs.200/- for 38 days. Accordingly, the compensation under this head is re-fixed as Rs.7,600/- (200x38) resulting an additional compensation **Rs.3,800/-** . 12. Towards pain and suffering, the Tribunal awarded a sum of Rs.20,000/-. Considering the nature of the injuries sustained and the treatment the appellant had undergone, we deem it appropriate to re-fix the compensation under this head as Rs.25,000/- resulting an additional compensation of **Rs.5,000/-** . 13. Towards loss of amenities, no amount was awarded by the Tribunal. Considering the nature of the injuries sustained and the disability that had arisen therefrom, as certified in Ext.C1, we deem it appropriate to grant a sum of **Rs.10,000/-** under this head. 14. In the result, the appellant will be entitled for an additional compensation of **Rs.86,200/-** (47,400+20,000+3,800+5,000+10,000) in this appeal which will carry interest @ 8% per annum from the date of the petition till realisation. 15. Since the insurance coverage of the vehicle is not in dispute, the respondent insurer shall deposit the said amount before the Tribunal within two months from the date of receipt of a certified M.A.C.A.1546/2012 6 copy of this judgment. No order as to costs. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/ANIL K. NARENDRAN (JUDGE)** **spc/** M.A.C.A.1546/2012 7 ## **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** M.A.C.A.1546/2012 8