SABU and THAHA v. MADASWAMY and others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 ``` ## `MACA NO. 1452 OF 2013` ``` AGAINST THE AWARD IN OPMV 934/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ``` ## `KOLLAM` ## `APPELLANTS/PETITIONERS:` ``` 1SABU AGED 28 YEARS S/O.THAHA,S.S MANZIL,PARAVOOR,THEKKUM BHAGAM,KOLLAM 691 301 2THAHA AGED 62 YEARS S/O.MUHAMMED ABOOBACKER,RESIDING AT S.S MANZIL,PARAVOOR THEKKUM BHAGAM,KOLLAM 691 301 BY ADVS. SRI.M.RAJENDRAN NAIR SMT.TISSY ROSE K CHERIYAN ``` ## `RESPONDENT/S:` ``` 1MADASWAMY NO 48,VETTIVEL VANNAR PETTAI,THIRUNELVELI -627001 2BALASUBRAMONIAN DOOR NO 4(B),PERUMAL NORTH CAR STREET, THIRUNELVELI,TAMIL NADU. 3MANAGER UNITED INDIA INSURANCE COMPANY,KOLLAM BR. 4GEETHA KUMARY PUNNAVILA VEEDU,PARAVOOR,KOLLAM 691 301 5THULASEEDHARAN PILLAI PUNNAVILA VEEDU,PARAVOOR,KOLLAM 691 301 6MANAGER CHOLAMANDALAM GENERAL INSURANCE COMPANY,CHOLAMANDALAM, TAMILNADU-627001. BY ADVS. R3 AND R6 BY ADV.SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. ``` 2 M.A.C.A No. 1452 of 2013 ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 M.A.C.A No. 1452 of 2013 ## **JUDGMENT** The appellants are the petitioners in O.P.(MV)No.934 of 2009 on the files of the Motor Accidents Claims Tribunal, Kollam. 2. The said claim petition was submitted by the appellants, seeking compensation for the injuries sustained by the 1[st] appellant in a motor accident that occurred on 24.06.2008. The 1[st] appellant was a mentally challenged person even before the accident, and a claim petition was submitted in such circumstances, along with 2[nd] appellant, who is his father. The contention of the appellants is to effect that the accident occurred, when the Innova car in which the 1[st] appellant was travelling collided with a lorry. Respondents 1, 2 and 3 were the owner, driver and insurer of the lorry, respectively. Respondents 4, 5 and 6 are the owner, driver and insurer of the car, in which the 1[st] appellant was travelling, respectively. 3. According to the appellants, he was aged 24 years at the time of the accident, and he claimed to be a person engaged in his family business with a monthly income of Rs.10,000/-. It was also contended that, he sustained very serious injuries in the accident, and it resulted in physical disability also. The claim petition was submitted in such circumstances seeking compensation. 4 M.A.C.A No. 1452 of 2013 4. The 3rd respondent appeared and filed a written statement admitting the existence of a valid insurance policy for the lorry. However, they denied the negligence on the part of the 2nd respondent-driver of the lorry. The 6th respondent filed a written statement admitting the coverage of the policy for the car, but they disputed the negligence on the part of the 5th respondent-driver of the car. They also disputed the quantum of compensation. 5. The evidence in this case consists of oral testimonies of PWs 1 to 3 and as documentary evidence Exts. A1 to A8 were marked. After the trial, the Tribunal arrived at the conclusion that the accident occurred due to the negligence of the driver of the lorry and being the insurer, the 3rd respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.7,34,000/- and the said amount was directed to be deposited with interest at the rate of 7.5% per annum from the date of petition till realisastion. It was also ordered that if the award is not deposited within three months, the interest shall be at the rate of 9% per annum. This appeal is submitted by the appellants in such circumstances seeking enhancement of compensation. 6. Heard, Sri.M.Rajendran Nair, the learned counsel appearing for the appellants and Sri.P Jacob Mathew, the learned counsel 5 M.A.C.A No. 1452 of 2013 appearing for the 3rd and 6th respondents. 7. The main contest in this case relates to the quantum of compensation awarded by the Tribunal. The learned counsel specifically raises a contention that the amount awarded towards loss of earning capacity is extremely on the lower side. The learned counsel for the 3rd and 6th respondents would contend that the Tribunal, while assessing the compensation, took note of the fact that the 1st appellant was a mentally challenged person right from birth, and the same was clearly established from the evidence available on record. Therefore, he was treated as a non-earning member, and the annual income was fixed at Rs.18,000/-. The said finding is reasonable, and no interference is warranted, contends the learned counsel for the 3rd respondent. 8. After carefully going through the records, I find some force in the contention put forward by the learned counsel for the appellants. Of course, it is true that the evidence would clearly indicate that from birth, the 1st appellant was a mentally challenged person. Even though the appellants claimed that the 1st appellant was engaged in the family business of the appellants, which was bakery business, and he was playing an effective role in the conduct of the business by generating an income of Rs.10,000/-, the same as such 6 M.A.C.A No. 1452 of 2013 cannot be accepted. Since the mental disablity of the 1st appellant is evident from the records, his contention that he was earning an amount of Rs.10,000/- is highly improbable. However, the fact that, the services of the 1st appellant could be utilized by the other members of the family, who are involved in the family business, for carrying out the duties attached to the said business, with the aid and supervision of the other persons, cannot be ruled out. Therefore, a reasonable amount should be taken as the monthly income of the 1st appellant for the purpose of assessment of compensation. The amount of Rs.18,000/- as annual income for the accident that occurred in the year 2008 appears to be extremely on the lower side under any stretch of the imagination, even with respect to a person with mental disabilities. This is particularly because the PW1 has asserted that he is being engaged in the family business. Since no evidence is available to show the monthly income of the 1st appellant, it has to be determined by doing guesswork after considering the evidence now available on record. 9. Of course it is true that, when the method of computation of monthly income as per the principle laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]** and **Syed Sadiq & Ors. v. Divisional** 7 M.A.C.A No. 1452 of 2013 **Manager, United India Insurance Company Ltd.** [2014 (2) SCC 735], the monthly income of an ordinary worker without any skills could be taken as Rs.6,500/- for the year 2008. However, the said amount is usually fixed with respect to an able-bodied man, and the said yardstick cannot be applied to the case of the 1st appellant. However, considering the family business of the appellants and also the claim of the appellants as to the engagement of the 1 st appellant in carrying out some duties as part of the said business, I am of the view that a reasonable amount of Rs.5,000/- could be fixed as monthly income in this case. 10. The next aspect is the percentage of disability. It is seen from the records that the appellants produced Ext.C1 disability certificate, wherein the percentage of disability was shown as 81%. The learned counsel for the 3rd respondent would point out that the said percentage of disability includes the disability consequent to the psychiatric disability, which he already had, even prior to the accident. Therefore, the said figure cannot be accepted. However, in the award, the said disability was accepted by the Tribunal, overruling the contention raised by the 3rd respondent in this regard, and there is no challenge with respect to the same. Therefore, I am of the view that no interference is warranted as far as the percentage of disability is 8 M.A.C.A No. 1452 of 2013 concerned. Thus, while reassessing the compensation with the revised monthly income of Rs.5,000/- and keeping the other parameters adopted by the Tribunal intact, the amount towards loss of earning power consequent to the disabilities of the 1st appellant would come to Rs.8,74,800/- (5,000 x 12 x 18 x 81/100). The amount already awarded by the Tribunal is Rs.2,62,440/-; thus, the additional amount would come to Rs.6,12,360/-. 11. The Tribunal awarded an amount of Rs.10,000/- towards pain and suffering. It is evident from the records that the 1st appellant sustained a fracture of humerus and implants were also installed after surgical operations. Besides the same, Ext.A5 would certify that his neck was immobilized and there was an abrasion over the nose. He had undergone treatment as an inpatient for a period of 38 days. In such circumstances, I deem it appropriate to grant a further sum of Rs.10,000/- for pain and suffering. No amount is seen granted towards the loss of amenities. Considering the nature of injuries and the disability arising therefrom, a reasonable amount ought to have been granted, and in the facts and circumstances of the case, I deem it appropriate to fix it as Rs.15,000/-. Thus, the total additional compensation comes to Rs.6,37,360/- (6,12,360 + 10,000 + 15,000). In the result, this appeal is allowed. The award dated 9 M.A.C.A No. 1452 of 2013 28.02.2013, passed by the Motor Accidents Claims Tribunal, Kollam in O.P (M.V) No. 934/2009 is hereby modified by granting an additional compensation of Rs.6,37,360/- (Rupees six lakh thirty seven thousand three hundred and sixty only) and the said amount shall be deposited by the 3rd respondent with interest at the rate of 7.5% from the date of petition till realisation and with proportionate costs. Sd/- ``` ZIYAD RAHMAN A.A JUDGE ``` ``` lu/rpk/pkk ```