Rasheed.K. v. The National Insurance Co Ltd Divisional Office, Kozhikode

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 7[TH] DAY OF FEBRUARY 2022 / 18TH MAGHA, 1943** **MACA NO. 1045 OF 2011** **AGAINST THE AWARD DATED 07.05.2010 IN OPMV 246/2008 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/CLAIMANT:** RASHEED.K., AGED 29 YEARS,S/O.ABOOBACKER, KOLAKOTH HOUSE, PANTHEERANKAVU POST, KOZHIKODE. BY ADV SMT.K.V.RESHMI ## **RESPONDENTS/RESPONDENTS:** 1 MANZOOR C.P., S/O.MAMMI 3/897, VAIPURATH HOUSE, G.A.COLLEGE POST,, POKKUNNU VIA, KOZHIKODE 673 014. * (DELETED) 2 SIDDIQUE.E S/O.KOYAKUTTY. E KANHIRANGATTU HOUSE, POOLENKARA, PANTHEERANKAVU, KOZHIKODE 673 019. *( DELETED) 3 THE NATIONAL INSURANCE CO LTD DIVISIONAL OFFICE, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE 673 001. * RESPONDENTS 1 & 2 DELETED RESPONDENTS 1 & 2 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 20/10/2021 IN I.A 2/15 ( I.A 4215/15) IN MACA 1045/2011. BY ADV P.A.REZIYA ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 07.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1045-2011 ## -:2:- ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.246/2008 on the file of the Principal Motor Accidents Claims Tribunal,Kozhikode. The respondents in the appeal were the respondents before the Tribunal. At the instance of the appellant, the respondents 1 and 2 have been deleted from the party array. Therefore, for the sake of convenience, the parties are, referred to as per their status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 07.04.2007. It was his case that, while he was standing on the road near the Pantheerankav Telephone Exchange, a motorcycle bearing registration No.KL-11-S-8136, ridden by the M.A.C.A.No.1045-2011 ## -:3:- second respondent in a negligent manner, hit the petitioner. The petitioner suffered multiple injuries, including a Grade III A fracture of the left femur. He was treated as an inpatient in three spells for a period of 23 days at the Medical College Hospital, Kozhikode. The motorcycle was owned by the first respondent and insured with the third respondent. The petitioner was a coolie worker by profession and was earning a monthly income of Rs.5000/-. Hence, the petitioner claimed a compensation of Rs3,00,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceeding and were set exparte. 4. The third respondent had filed a written statement admitting that the motorcycle had a valid insurance coverage. However, the third respondent denied that there was negligence on the part of the first respondent and also stated that the compensation claimed was excessive. M.A.C.A.No.1045-2011 -:4:- 5. The petitioner had produced and marked Exhibits A1 to A10 in evidence. The disability certificate issued by the Medical Board attached to the Medical College Hospital, Calicut was marked as Exhibit C1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioner to recover from the third respondent an amount of Rs.1,40,559/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Smt. K.V.Rashmi the learned counsel appearing for the appellant/petitioner and Smt. P.A. Raziya, the learned counsel appearing for the original third respondent/insurer. 9. The point that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? M.A.C.A.No.1045-2011 -:5:- ## **Negligence and liability** 10. Exhibit A9 final report filed by the City Traffic Police, Kozhikode in Crime No.811/2007 proves that the accident occurred due to the negligence of the first respondent. Indisputably, the second respondent was the owner and the third respondent was the insurer of the motorcycle. The respondents did not not let in any evidence to discredit Exhibit A9 final report. The third respondent has also not proved that the second respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Income** 11. The petitioner had claimed that he was a coolie worker by profession and earning a monthly income of Rs.5000/-. For want of material, the Tribunal fixed the monthly income of the petitioner on notional basis at Rs.2500/-. M.A.C.A.No.1045-2011 ## -:6:- ## 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2007, I re-fix the notional monthly income of the petitioner at Rs.5000/- as claimed in the claim petition. ## **Loss of earnings** 14. The Tribunal has found that the petitioner was indisposed for a period of 1 ½ months. 15. On a consideration of Exhibit C1 medical report and the fact that the petitioner had suffered a Grade III A fracture of the left femur, and that he was a coolie worker by profession, I hold that he was indisposed for a period of four months. 16. In view of the re-fixation of the notional M.A.C.A.No.1045-2011 ## -:7:- monthly income of the petitioner at Rs.5000/-, I award him an amount of Rs.20,000/- under the head ‘loss of earnings’, instead of Rs.3750/- awarded by the Tribunal. ## **Disability** 17. As per Exhibit C1 disability certificate issued by the Medical Board attached to the Medical College Hospital, Kozhikode, it is found that the petitioner has a functional disability of 23% due to the restriction of movements of his left knee @ 50%. I confirm the said finding and fix the petitioner’s functional disability at 23% as certified in Exhibit C1. ## **Multiplier** 18. The petitioner was aged 26 years at the time of the accident. In the light of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘17’. M.A.C.A.No.1045-2011 -:8:- ## **Loss due to disability** 19. Taking into account the above mentioned factors, namely, the notional monthly income of the petitioner at Rs.5000/-, his functional disability at 23% and the multiplier at 17, I award him an amount of Rs.2,34,600/-, instead of Rs.1,17,300/- awarded by the Tribunal. ## **- By stander expenses and extra nourishment** 20. The Tribunal has awarded a meagre amount of Rs.300/- under the head ‘extra nourishment’. 21.On a consideration of the fact that the petitioner was treated as an inpatient for a period of 23 days and the accident occurred in the year 2007, I award him an amount of Rs.400/- per day for a period of 23 days towards ‘by-stander expenses’, which works out to Rs.9200/- and an amount of Rs.200/- per day for a period of 23 days M.A.C.A.No.1045-2011 -:9:- towards ‘extra nourishment’ which works out Rs. 4600/-. ## **Pain and sufferings and loss of amenities** 22. The Tribunal has awarded only an amount of Rs.10,000/- under the head ‘pain and sufferings.’ 23. Taking into account the fact that the petitioner was treated as an inpatient for a period of 23 days, that he was indisposed for a period of four months and that he has suffered a functional disability of 23%, I award him a further amount of Rs.10,000/- under the head ‘pain and sufferings’ and an amount of Rs.20,000/- under the head ‘loss of amenities’. 24. With respect to the compensation awarded under the heads ‘transportation expenses, and ‘medical expenses’, I find the same to be reasonable and just compensation. 25. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I hold that the M.A.C.A.No.1045-2011 -:10:- appellant/petitioner is entitled to enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by this<br>Court| |---|---|---|---| |1|Loss of earnings|3750|20000| |2|Transport|300|300| |3|Bystander expense|0|9200| |4|Extra nourishment|300|4600| |5|Medical expenses|8909|8909| |6|Pain and sufferings|10000|20000| |7|Loss of amenities|0|20000| |8|Loss<br>due<br>to<br>disability|117300|234600| ||**Total**|**140559**|**317609**| In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.1,77,050/- with interest at the rate of 7% per annum from the date of petition till the date of deposit, after deducting interest for a period of 337 days i.e. the period of M.A.C.A.No.1045-2011 -:11:- delay in filing the appeal and as ordered by this Court on 20.10.2021 in C.M. Application No.1/2011, and a cost of Rs.10000/-. The respondent/3rd respondentinsurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant/petitioner in accordance with law. Sd/- ## **C.S.DIAS,JUDGE** rmm/07.02.2022