Sajid Pallipath v. Abootty U.K., Munadayadan Pramod Kumar & The Oriental Insurance Company

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 9TH DAY OF MARCH 2016/19TH PHALGUNA, 1937** **MACA.No. 1791 of 2008 ( )** **-------------------------AGAINST THE AWARD IN OPMV 1560/2000 of ADDL.D.C.& ADDL.MACT, THALASSERY, DATED 27-12-2007.** ## **APPELLANT(S)/APPELLANT: ----------------------** **SAJID PALLIPATH** **S/O. K.M.MOIDEEN, AGED 34 YEARS, NOW NO OCCUPATION, PALLIPATH HOUSE, IRIKKUR, KANNUR DISTRICT 670 593.** **BY ADV. SRI.C.KHALID** ## **RESPONDENT(S):** ## **--------------** ## **1. ABOOTTY U.K.** - **S/O.MOIDU, PARAMMAL HOUSE, (PO) SIVAPURAM, VIS MATTANNUR, KANNUR DISTRICT, (OWNER OF THE BUS NO.KL-13, E-6393)** ## **2. MUNADAYADAN PRAMOD KUMAR** - **S/O.GOVINDAN NAMBIAR, AGED 29 YEARS, DRIVER, SREEDEVI SADANAM, MUZHUKUNNU AMSOM, PALA DESOM, PO MUZHUKUNNU, (DRIVER OF THE BUS-KL-13,E 6393)** ## **3. THE ORIENTAL INSURANCE COMPANY,** - **SOUTH BAZAR, KANNUR 670 002, INSURER OF THE BUS KL-13 E 6393)** **R3 BY ADV. SRI.A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ss ## **P.N. Ravindran & K. Ramakrishnan, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.1791 of 2008** - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of March, 2016 ## **JUDGMENT** ## **K. Ramakrishnan, J** Claimant in O.P.(M.V.).No.1560/2000 on the file of the Motor Accidents Claims Tribunal, Thalassery is the appellant herein. The appellant filed the application for compensation for the injuries sustained by him in a motor vehicle accident occurred on 01.08.2000. According to the claimant, while he was riding the motor cycle with his friend as pillion rider with No. KL-13/A-2301 and when they reached the place of occurrence the bus with No.KL-13/E-6393 driven by the second respondent, owned by the first respondent and insured with the third respondent came from the opposite direction in a negligent manner hit against the motor cycle driven by the claimant. According to the claimant, the accident occurred due to the negligence of the 2[nd] respondent. He was a salesman getting Rs.7,000/- per month from a textile shop and his right leg was amputated and he was permanently disabled from doing the work. He was aged only 25 years at the time of accident and he claimed a total compensation of Rs.10,00,000/- on various heads. 2. Respondents 1 and 2 entered appearance and filed _**M.A.C.A.No.1791 of 2008**_ 2 counter admitting the ownership and driving of the vehicle by respondents 1 and 2 respectively and the vehicle was insured with the third respondent. They denied the allegation that the accident occurred due to the negligence of the second respondent. According to them, the petitioner himself was responsible for the accident, so he is not entitled to get any compensation. The amount claimed is excessive and they prayed for dismissal of the application. 3. The third respondent filed a written statement admitting the insurance of the bus involved in the accident. They have also contended that the accident was not due to the negligence of the second respondent, but due to the negligence of the petitioner. They also contended that the amount claimed is exorbitant and they prayed for dismissal of the application. 4. PWs 1 to 3 were examined and Exts.A1 to A12 were marked on the side of the petitioner. No evidence either oral or documentary was adduced on the side of the respondent. After considering the evidence on record, the court below found that the accident occurred due to the negligence of the second respondent in driving the bus and awarded a total compensation of Rs.3,62,600/- on various heads as follows: _**M.A.C.A.No.1791 of 2008**_ 3 |**_Heads_**||**_Amount_**| |---|---|---| |Permanent disability||₹2,37,600/-| |Pain and sufferings||₹25,000/-| |Loss of amenities||₹15,000/-| |Medical expenses||₹76,000/-| |Loss of income||₹6,000/-| |Other eligible counts||₹3,000/-| ||Total|₹3,62,600/-| Directed the third respondent insurance company to pay the amount with interest at the rate of 7% per annum, from the date of petition (25.11.2002 to 11.04.2005) and from 25.10.2006 till realisation with proportionate costs. Dissatisfied with the quantum of compensation awarded, the present appeal has been preferred by the appellant/claimant before the court below. 5. Heard Smt.Reeha Khader, representing Sri.C.Khalid, counsel appearing for the appellant and Sri.A.R.George, counsel appearing for the third respondent as notice to respondents 1 and 2 has dispensed with by this court as per order dated 29.06.2015. 6. The counsel for the appellant submitted that the tribunal was not justified in disbelieving Ext.A7 and evidence of PW3 wherein it was stated that he has getting a monthly income of Rs.3,000/- from his employment apart from his daily expenses. The tribunal had arbitrarily fixed the monthly income as Rs.1,500/- per month. The reasons given by the court below for not believing Ext.A7 _**M.A.C.A.No.1791 of 2008**_ 4 is not sustainable in law. Further no future prospects have been taken into consideration and the amount awarded under the head pain and suffering, loss of amenities in life etc., are also on the lower side. So according to the learned counsel, the appellant is entitled to get enhancement on all heads. 7. On the other hand, the learned counsel for the insurance company submitted that the court below had considered all the aspects in the right perspective and awarded just and proper compensation and no interference is called for. 8. Since the accident was admitted and no appeal has been preferred by the respondents against the question of negligence, we are not discussing about the same in this judgment. 9. The case of the claimant in the claim petition was that, he was working as a salesman in a textile shop getting Rs.7,500/- per month. He was aged only 25 years. Ext.A3 wound certificate shows that he sustained compound fracture right femur and right tibia, lacerated wound bone deep medial aspect or right thigh, lacerated wound muscle deep right forearm. Ext.A5 disability certificate shows that his right leg was amputated above knee level and disability was assessed as 55% by the Medical Board. PW3 was examined to show that he is working under him and Ext.A7 salary _**M.A.C.A.No.1791 of 2008**_ 5 certificate was given by him. It is true he had mentioned in the certificate that he was paying Rs.3,000/- per month and he was working there for some period now. But he had stated that he is not maintaining any register and used to get receipt only from the claimant for payment salary. However, in the absence of convincing documentary evidence, it is not safe to rely on the evidence of PW3 to accept Ext.A7 as such for proving the income of the injured. However the accident occurred in the year 2000. The fact that he was working in the shop is proved through PW3. So considering these aspects, we feel that the monthly income of the petitioner can be taken as Rs.2,500/- per month. He could not have work for at least six months on account of the injury sustained as he had suffered above knee amputation. So he will be entitled to get an amount of Rs.15,000/under the head loss of earning during the period of treatment instead of Rs.6,000/- awarded by the tribunal. Thereby he will be entitled to get an additional amount of Rs.9,000/- under that head. Considering the nature of injury sustained, the amount awarded under the head pain and suffering also appears to be on the lower side. So we are inclined to enhance the same to Rs.40,000/- from Rs.25,000/-, thereby he will be entitled to get an additional amount of Rs.15,000/under that head. The court below had not considered the future _**M.A.C.A.No.1791 of 2008**_ 6 prospects of the injured as he was only 25 years at the time of accident. 10. Further in the decision reported in _**Rajesh v. Rajbir Singh**_ [2013(3) KLT 89 (SC)], the Supreme Court has held that, even in the case of persons having no permanent income, future prospects will have to be taken into consideration and up to the age of 30 years, 50% of the income has to be added to the income of the deceased for the purpose of computing compensation under the head loss of dependency. The same principle has been extended to personal injury case as well in the decision reported in _**Syed Sadiq v. Divisional Manager, United India Insurance Company**_ [AIR 2014 (SC) 1052] _._ He was aged only 25 years, so the multiplier to be applied is 18 as per _**Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another**_ (2009 (6) SCC 121) and the tribunal had taken 55% disability as such and we do not think that the court below had committed any illegality in adopting 55% disability for assessing compensation under the head loss of earning capacity. If a recalculation is made on the basis of the above materials, the appellant will be entitled to get an amount of Rs.4,45,500/- (2,500x150% =3,750x12x18x55%) instead of Rs.2,37,000/- awarded by the _**M.A.C.A.No.1791 of 2008**_ 7 tribunal. So he will be entitled to get an additional amount of Rs.2,07,900/- under the head loss of earning capacity. 11. Even in cases where the disability has resulted in loss of earning capacity, he will be entitled to get a reasonable amount under the head loss of amenities and discomfort in life as well. In this case, he is aged only 25 years and his right knee was amputated above knee level. He will have to live with this difficulty for the remaining period of his life. This may affect his marriage prospects as well. Apart from causing dis-figuration to his body, this may result in untoward hardship and inconvenience for him in the remaining period of his life as he will have to live with this handicap in future. Considering these aspects, we feel that the amount of Rs.15,000/awarded by the tribunal is very low. So we are inclined to enhance the same to Rs.1,00,000/- from Rs.15,000/-, thereby he will be entitled to get an additional amount of Rs.85,000/- under the head loss of amenities in life. 12. We are not inclined to enhance any amount under other heads as the tribunal has considered all the aspects and awarded just and fair compensation including expenses for future medical expenses. In all the appellant will be entitled to get an additional compensation of Rs.3,16,900/-, which the third respondent insurance _**M.A.C.A.No.1791 of 2008**_ 8 company is liable to pay with 9% interest from the date of petition till payment. Three months time is granted to the insurance company to deposit the amount. If the amount is deposited, the petitioner is permitted to withdraw Rs.1,00,000/- and the balance amount shall be deposited in the name of the petitioner in a nationalised bank for a period of five years with liberty for him to withdraw periodical interest. Further if any necessity arises for him, he is at liberty to move the tribunal and the tribunal is at liberty to consider and pass appropriate orders in such application regarding withdrawal of the amount. With the above modification of the impugned award passed by the tribunal, the appeal is allowed in part and disposed of accordingly. _Sd/-_ **P.N.RAVINDRAN (JUDGE)** _Sd/-_ **K.RAMAKRISHNAN (JUDGE)** //True Copy// P.A. to Judge _ss_