Rubail v. Kamaludheen, Babu & The New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 21ST DAY OF NOVEMBER 2013/30TH KARTHIKA, 1935** ## **MACA.No. 1207 of 2011 ( )** **-------------------------AGAINST THE JUDGMENT AND AWARD IN OP(MV) NO. 98/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD DATED 04-02-2011** **------------------** ## **APPELLANT/PETITIONER :** **---------------------------------------** **RUBAIL, S/O.ABDUL RAHIMAN, KUNNUMKADU HOUSE, KANNAMBRA P.O., KARAPOTTA WADAKKANCHERY, PALAKKAD DISTRICT.** **BY ADV. SRI.T.C.SURESH MENON** ## **RESPONDENTS/RESPONDENTS :** **-------------------------------------------------** **1. KAMALUDHEEN, 15/286 PERIRJARA, P.O. MUTHALAMADA, PALAKKAD-678 507.** **2. BABU, S/O.KUTTAMANI, KOKKIKULAMBU, KARAPOTTA, KANNAMBRA P.O., PALAKKAD-678 687.** **3. THE NEW INDIA ASSURANCE CO. LTD., P.B.NO.48, N.S.TOWERS, NEAR STADIUM BUSSTAND COIMBATORE ROAD, PALAKKAD P.O. - 678 002.** **R3 BY ADV. SRI.K.C.SANTHOSHKUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** ## **S.SIRI JAGAN & K. RAMAKRISHNAN, JJ.** **----------------------------MACA No.1207 of 2011** **================= Dated this the 21[st] day of November, 2013** **J U D G M E N T -------------------** ## **K. Ramakrishnan, J** . The claimant in O.P.(MV) No.98/2007 on the files of the Motor Accidents Claims Tribunal, Palakkad, is the appellant herein. The appellant filed the application for compensation for the injuries and consequential disabilities suffered by him in a motor vehicle accident caused on account of the rash and negligent driving of the vehicle by the 2[nd] respondent owned by the 1[st] respondent and insured with the 3[rd] respondent insurance company. 2. After considering the evidence on record, the Tribunal found that the accident occurred due to the negligent driving of the vehicle by the 2[nd] respondent and awarded a total compensation of Rs.67,000/- on various heads as follows: Loss of earning capacity Rs.20,400/-, medical and miscellaneous expenses Rs.17,700/-, transportation expenses Rs.2,000/-, extra nourishment Rs.2,000/-, damage to clothing Rs.500/-, pain and suffering MACA No.1207 of 2011 **-2-** Rs.17,000/-, loss of amenities in life Rs.7000/-. 3. Dissatisfied with the quantum of compensation awarded, the appellant has come before this court with the above appeal claiming enhanced compensation. 4. Heard the counsel for the appellant and counsel for the insurance company. 5. The counsel for the appellant submitted that the appellant was conducting textile business and getting Rs.4,000/- per month. But the Tribunal has arbitrarily fixed his monthly income as Rs.2,500/- per month, which is palpably low. Further he was treated as inpatient for 31 days. But no amount was awarded under the head bystanders expenses and no amount was awarded under the head loss of earning during the period of treatment as well. Further he was treated as inpatient for 31 days and underwent two surgeries. But the Tribunal has awarded only Rs.17,000/- under the head pain and sufferings which is also on the lower side. The doctor who issued the disability certificate certified that he is having 6% disability. MACA No.1207 of 2011 **-3-** But the Tribunal has taken only 4% disability only on the ground that it was not issued by a medical board for the purpose of assessing compensation under the head loss of earning capacity. Further the proper multiplier applicable is 18 and not 17 in view of the decision reported in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802]** . The amount awarded under the head loss of amenities in life is also on the lower side considering the nature of disability suffered by him. So according to the counsel for the appellant, the appellant is entitled to get enhancement in all heads. 6. On the other hand the counsel for the insurance company submitted that since the disability certificate was not issued by the medical board and the doctor who issued the same who was examined as PW1 did not support the disability as such as it will affect his earning capacity, the tribunal was perfectly justified in adopting 4% as his occupational disability. The total compensation awarded considering the nature of injuries sustained and disability MACA No.1207 of 2011 **-4-** suffered is just and proper and no interference is called for at the hands of this court. 7. We have considered the rival contentions of both parties in detail. 8. The case of the appellant was that he was doing textile business and getting Rs.4,000/- per month at the time of accident. It is true that he had not produced any document to prove his income. But the accident occurred on 5.9.2006. Considering the living condition and cost of living, we feel that a person of 23 years as the appellant was at the time of accident will be getting at least Rs.3,000/- per month as income. So we are re-fixing the monthly income of the appellant as Rs.3,000/- per month. It is seen from the documents that he suffered fracture lateral malleolus left and he was treated as inpatient for 31 days. No amount was awarded under the head loss of earning during the period of treatment. Considering the nature of injuries and period of treatment, we feel that he would be out of action for at least 4 months and he is entitled to get an amount of MACA No.1207 of 2011 **-5-** Rs.12,000/- under the head loss of earning during the period of treatment and we award this amount under that head. 9. The appellant was treated as inpatient for 31 days and he underwent two surgeries. So the amount of Rs.17,000/- awarded by the Tribunal under the head pain and sufferings is also on the lower side. So we enhance the same to Rs.25,000/-. No amount was awarded under the head bystanders' expenses. He was treated as inpatient for 31 days and he would have employed somebody to look after him and he would have incurred some amount for that purpose. So we award an amount of Rs.4,650/- taking Rs.150/- per day for the bystanders' expenses for 31 days. We do not find any reason to reduce the disability certified by the doctor in the disability certificate. The disability certificate marked as Ext.A13 was proved through PW1. It is seen from the disability certificate that he is having pain and stiffness on left ankle and difficulty in climbing up stairs. Being a businessman, it may have some impact on his earning capacity. So we are inclined to take the entire MACA No.1207 of 2011 **-6-** 6% disability for the purpose of assessing compensation under the head loss of earning capacity. Further as per the decision in Sarla Verma's case (supra), the proper multiplier applicable to the age group of 23 years as the appellant was is 18 and not 17 as taken by the Tribunal. If a recalculation is made on the basis of above inputs, the appellant will be entitled to get an amount of Rs.38,880/- (3000 x 12 x 18 x 6%) instead of Rs.20,400/- awarded by the Tribunal and we award that amount under that head. 10. The Tribunal has awarded only Rs.7,000/- under the head loss of amenities in life. Considering the nature of disability mentioned by the doctor in Ext.A13 disability certificate and also considering the fact that the appellant was aged only 23 years at the time of accident and he will have to be with this difficulty for the remaining period of his life which may cause great impact on his personal life as well, we feel that the amount of Rs.7,000/- awarded by the Tribunal under the head loss of amenities in life is also on the lower side and we enhance the same to Rs.15,000/-. In MACA No.1207 of 2011 **-7-** spite of persuasive arguments made by the counsel for the appellant for getting enhancement under other heads, we are not impressed by the same as the amount awarded by the Tribunal under other heads appears to be just and proper. In all, the appellant will be entitled to get an additional compensation of Rs.51,130/- over and above what has been awarded by the Tribunal, which the 3[rd] respondent insurance company is liable to be pay with 9% interest per annum from the date of claim petition till date of payment. Two months' time is granted to the insurance company to deposit that amount as well. With the above modification of the impugned award of the Tribunal, the appeal is disposed of. Sd/- ## **S.SIRI JAGAN, JUDGE** Sd/- - **K.RAMAKRISHNAN, JUDGE** shg/