Shajahan v. David and K.N. Thilakan and The Branch Manager National Insurance Company Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 7[TH] DAY OF JANUARY 2022 / 17TH POUSHA, 1943 ``` ## `MACA NO. 3143 OF 2009` ``` AGAINST THE AWARD DATED 30.05.2009 IN OP(MV)NO.565/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA ``` ## `APPELLANT/PETITIONER:` ``` SHAJAHAN, KOCHUVILA HOUSE, BHARATHIPURAM DESOM, EROOR VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT ``` ``` BY ADV SRI.V.BINOY RAM ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1DAVID, CHALAKUDY DESOM, P.O. EAST CHALAKUDY VILLAGE, THRISSUR DISTRICT. 2K.N.THILAKAN, S/O.NARAYANAN, KIZHAKKE VEETTIL HOUSE, KONNUR ,NALUKETTU P.O., KORATTY, THRISSUR DISTRICT. ``` ``` 3THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LTD., URUMBATH BUILDING, PUMP JUNCTION, ALUVA. ``` ``` BY ADVS.SRI.E.M.JOSEPH SRI.TOJAN J. VATHIKULAM SRI.K.I.TOGI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.3143/2009 -:2:- Dated this the 7[th] day of January, 2022 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV)No.565/2005 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 17.11.2004. It was his case that, on the above day, while he was riding his motorcycle bearing registration No.KL-2/C 461 along the N.H. 47 road, when he reached the place named a car Muringoor, bearing registration No.KL-8/B-9567(car), driven by the first respondent in a rash and negligent manner, hit the motorcycle of the appellant. The appellant had sustained serious injuries and was treated at St.James hospital, Chalakudy and at the Amrita Institute of Medical Sciences and Research M.A.C.A.No.3143/2009 -:3:- Centre, Ernakulam, as an inpatient for a period of 28 days. The car was owned by the second respondent and insured with the third respondent. The appellant was a coolie worker by profession and earning a monthly income of Rs.3,000/-. The appellant has suffered a permanent disability. Hence, the appellant claimed a compensation of Rs.3,54,000/- from the respondents, which claim was limited to Rs.3,00,000/-. 3. The other injured in the same accident also filed O.P.(MV)Nos.355/2005 & 1163/2005 before the same Tribunal. 4. The respondent Nos.1 and 2 did not contest the above proceedings and were set ex parte. 5. The third respondent had entered appearance and filed separate written statements admitting that the car had a valid insurance policy. Nevertheless, it was contended that the compensation was excessive. It was also alleged that the first respondent did not hold a valid driving licence. M.A.C.A.No.3143/2009 -:4:- 6. The Tribunal consolidated and jointly tried the three claim petitions. 7. The petitioners in the three cases produced and marked Exts.A1 to A12 in evidence. The respondents did not let in any evidence. 8. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.1,28,250/- with interest and cost. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri.V. Binoy Ram, the learned counsel appearing for the appellant/petitioner and Sri.E.M. Joseph, the learned counsel appearing for the third respondent-insurer. 11. The sole question that arises for M.A.C.A.No.3143/2009 -:5:- consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability:** 12. Ext.A2 chargesheet filed by the Koratty Police in Crime No.391/2004, proves that the accident happened due to negligence of the first respondent. Admittedly, the second respondent was the owner and the third respondent was the insurer of the car. The respondents have not let in any evidence to discredit Ext.A2 chargesheet. Similarly, the third respondent has 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. ## **I ncome:** 13. The appellant had claimed that he was a coolie worker by profession and earning a monthly income of Rs.3,000/-. The Tribunal, for want of M.A.C.A.No.3143/2009 -:6:- materials, fixed the notional monthly income of the appellant at Rs.2,000/-. 14. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 15. Following the yardstick in the afore-cited decision and keeping in mind that the accident occurred in the year 2004, I fix the monthly income of the appellant at Rs.3,000/-, as claimed in the claim petition. ## **Loss of income:** 16. The Tribunal has found that the appellant was indisposed for a period of four months. I confirm the said finding. However, in view of the re-fixation of the notional monthly income of the appellant at Rs.3,000/-, I award him an amount of Rs.12,000/towards ‘loss of earnings’, instead of Rs.8,000/- M.A.C.A.No.3143/2009 -:7:- awarded by the Tribunal. ## **Disability:** 17. As per Ext.A3 wound certificate, the appellant had sustained a fracture on his left Talus and had suffered pubic symphysis diathesis (ORIF) and left knee dislocation. He was treated as an inpatient in two hospitals for a period of 28 days. He had produced Ext.A6 disability certificate issued by an Orthopedic Surgeon, who has certified that the appellant has partial ankylosis of his right hip, partial ankylosis of his right knee, wasting of his right thigh and leg muscles, partial anklosis of his right ankle, and that he has difficulty in walking, climbing stairs, sitting for a long time, squating, sitting cross legged and standing up for a long time without support. The doctor has certified that the appellant has a permanent disability of 20%. 18. The Tribunal for the reason that the appellant had not examined the doctor, who issued Ext.A6 M.A.C.A.No.3143/2009 -:8:- disability certificate, scaled down the disability to 8%. 19. In **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)], the Honourable Supreme Court has categorically held that, if the Tribunal is dissatisfied with the disability certificate produced before it, it is the bounden duty of the Tribunal to refer the injured/claimant to a duly constituted Medical Board. Similarly, what needs to be looked into in a case of injury, is the ‘functional disability’ of the injured/claimant. 20. In the instant case, after accepting Ext.A6 disability certificate and marking it in evidence, without any objection or protest from the respondents, the Tribunal has scaled down the disability of the appellant to 8%, which is erroneous and against the principles laid down in **Rajkumar** (supra). If the Tribunal was dissatisfied with Ext.A6, the Tribunal ought to have referred the appellant to a Medical Board. Instead of following the said procedure, the M.A.C.A.No.3143/2009 -:9:- Tribunal has unilaterally scaled down the disability, which is patently wrong. Therefore, I accept Ext.A6 and considering that the appellant was a coolie worker by profession, I re-fix his functional disability at 20%, as reflected in Ext.A6. ## **Multiplier:** 21. The appellant was aged 36 years at the time of accident. In the light of the law laid down in **Sarla Verma and others v. Delhi Transport Corporation** **and others** [(2010) 2 KLT 802 (SC)],the relevant multiplier to be adopted is ‘15’. ## **Loss due to disability:** 22. Taking into account the above mentioned factors, namely; the monthly income of the appellant at Rs.3,000/-, his ‘functional disability’ at 20% and the ‘multiplier’ at ‘15’, I hold that the appellant is entitled for compensation for ‘loss due to disability’ at Rs.1,08,000/-, instead of Rs.30,750/- awarded by the Tribunal. M.A.C.A.No.3143/2009 -:10:- ## **Bystander expenses and extra nourishment:** 23. It is proved by Exts.A4 and A5 discharge summaries that the appellant was treated as an inpatient for 28 days in two hospitals. The Tribunal has awarded him only an amount of Rs.2,800/- towards ‘attendance charges’, which is inadequate and abysmal. 24. Therefore, considering the fact that the appellant was treated as an inpatient for a period of 28 days and that the accident occurred in the year 2004, I award the appellant an amount of Rs.250/- per day for a period of 28 days towards ‘bystander expenses’ which works out to Rs.7,000/- and Rs.150/- per day for a period of 28 days towards ‘extra nourishment’ which works out to Rs.4,200/-. ## **Pain and sufferings and loss of amenities:** 25. It is proved that the appellant had sustained three fractures, that he was was indisposed for a period of four months, that he was treated as an M.A.C.A.No.3143/2009 -:11:- inpatient for a period of 28 days in two hospitals, and that he had suffered a permanent disability of 20%. Hence, I award him further amounts of Rs.10,000/- and Rs.13,000/-, respectively under the heads ‘pain and sufferings’ and ‘loss of amenities. 26. With respect to the other heads of compensation namely; 'transportation expenses’ and 'medical expenses', I find that the Tribunal has awarded reasonable and just compensation. 27. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decisions, I hold that the appellant/petitioner is entitled for 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<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculate<br>d by this<br>Court| |---|---|---|---| |1|Loss of earnings|8,000|12,000| M.A.C.A.No.3143/2009 -:12:- |2|Transportation<br>expenses|2,000|2,000| |---|---|---|---| |3|Extra nourishment|Nil|4,200| |4|Bystander expense|2,800|7,000| |5|Medical expense|62,600|62,600| |6|Pain and sufferings|15,000|25,000| |7|Loss of amenities|7,000|20,000| |8|Loss<br>due<br>to<br>disability|30,750|1,08,000| |**Total**||**1,28,150**|**2,40,800**| In the result, the appeal is allowed in part by enhancing the compensation by a further amount of **Rs.1,12,650/-** with interest at the rate of 7% per annum from the date of petition till the date of realisation, after deducting interest fo `r a` period of 89 days i.e., the period of delay in filing the appeal and as ordered by this Court on 0 `7` . `1` 0.2021 in C.M.Appln. No.1/2009, and a cost of Rs.1 `0,000/-.` The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Trib `unal` within a period of sixty days from the date of receipt of a certified copy of this judgment. M.A.C.A.No.3143/2009 -:13:- Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellant in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/07.01.22 //True copy/ P.A.To Judge