High Court of KeralaSingle Judge2022-03-17Appeal allowed; enhanced compensation; insurer ...

Sharafudheen v. UMMER, Ibrahim K.S., Oriental Insurance Co. Ltd., Muhammed Kutty and Smt. K.S. Santhi

Case / Petition Number:MACA NO. 3015 OF 2009

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Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2022-03-17
Court Decision / Holding: The appeal is allowed in part; the compensation is enhanced and the insurer is directed to deposit the enhanced amount with interest and costs before the Tribunal within 60 days from certified copy delivery; the insurer may recover the excess payment from the 4th respondent. On deposit, the enhanced amount is to be disbursed to the appellant as per law.
Final Disposition: Appeal allowed; enhanced compensation; insurer to deposit within 60 days; liability to recover from fourth respondent; disbursement to appellant upon deposit.

Parties to the Case

Appellants / Petitioners

SHARAFUDHEEN, AGED 26 YEARS, S/O.MOOSA, VATTAPARAMBIL HOUSE, KALLANKULAM, CHELAKKODE P.O., PAZHAYANNUR

Respondents

UMMER, S/O. YOUSEFKUTTY, EDAKKATTIL HOUSE, PARAPPURAM P.O., PANJAL VILLAGE, ATTAR
IBRAHIM K.S., S/O. SAIDUMUHAMMED, KAZHUNGUVALATTIL HOUSE, THEKKUKARA, WADAKKANCHERRY
THE ORIENTAL INSURANCE CO. LTD., PRANAVAM, MELE PATTAMBI, PATTAMBI-679 306, POLICY NO.1561/2007, VALID FROM 13/5/2006 TO 12/5/2007
MUHAMMED KUTTY, S/O. USAF, EDAKKATTIL VEEDU, ATTOOR, PANCHAL P.O., THALAPPILLY TALUK
R3 SMT. K.S. SANTHI, SC, ORIENTAL INSURANCE CO. LTD.

Legal Representation & Advocates

Counsels for Petitioners

• Sri.SHEJI P.ABRAHAM

Counsels for Respondents

• Sri.K.S. Santhi

Case Synopsis & Summary

This is a Motor Accidents Claims Appeal under Section 166 of the Motor Vehicles Act, 1988, arising from a 22.08.2006 accident in which Sharafudheen, a coolie, claimed compensation for injuries suffered in a collision with a goods autorickshaw. The Motor Accidents Claims Tribunal, Ottapalam, held the third respondent insurer liable for payment after finding that the autorickshaw driver lacked a valid licence and that the insurer was bound by policy conditions. The tribunal awarded Rs. 52,450 with costs, which the appellant challenged as inadequate. The High Court, while upholding the liability finding, undertook its own re-assessment of income, disability and losses, relying on Ramachandrappa to fix the notional income for a coolie at Rs. 3,500 per month (given the accident occurred in 2006) and on Rajkumar to focus on functional disability rather than mere percentage. The court found the applicant’s disability at 10% (functional) with a revised calculation of losses, increasing losses of earnings, earning capacity, pain and suffering, and loss of amenities. Consequently, the appeal was allowed, and compensation enhanced by Rs. 83,200 with 6% simple interest from the date of the petition until deposit, with costs. The insurer was ordered to deposit the enhanced amount within 60 days and to recover amounts from the fourth respondent as applicable.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal’s quantum of compensation is too low and that the notional income and disability should be higher. Based on Ext.A7, the appellant argues for a functional disability of 10% and higher compensation for loss of earnings, earning capacity, pain and suffering, and loss of amenities, reflecting a longer period of disability and higher medical and incidental costs. The notional monthly income should align with the 2004 Ramachandrappa standard (Rs.4,500 for a coolie), updated for 2006 to Rs.3,500 as claimed in the petition, with appropriate multipliers.

Contentions of Respondents

The respondents contend that the accident was caused by the first respondent’s negligence but the policy conditions were honored by the insurer; however, the driver did not hold a valid driving licence, and liability should stand against the insurer only to the extent of policy coverage. The insurer argues that the Tribunal rightly assessed liability, and the compensation awarded by the Tribunal is just and reasonable given the evidence; the court should not overrule the insurer’s liability or materially alter the Tribunal’s framework without compelling statutory justification.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	[(2011) 13 SCC 236]	Positive	Cited to fix notional income for a coolie worker; used as the benchmark for determining income in such cases.
Rajkumar v. Ajay Kumar	[2011 (1) KLT 620 SC]	Positive	Cited to emphasize that functional disability should be considered in injury claims, guiding the court’s disability assessment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 17[TH] DAY OF MARCH 2022 / 26TH PHALGUNA, 1943** **MACA NO. 3015 OF 2009** **AGAINST THE AWARD DATED 18.08.2009 IN O.P.(MV) NO.1188/2006 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM. APPELLANT/PETITIONER:** **SHARAFUDHEEN, AGED 26 YEARS, S/O.MOOSA, VATTAPARAMBIL HOUSE, KALLANKULAM, CHELAKKODE P.O., PAZHAYANNUR.** **BY ADV SRI.SHEJI P.ABRAHAM** ## **RESPONDENTS/RESPONDENTS:** - **1 UMMER, S/O. YOUSEFKUTTY, EDAKKATTIL HOUSE, PARAPPURAM P.O., PANJAL VILLAGE, ATTAR.** - **2 IBRAHIM K.S., S/O. SAIDUMUHAMMED, KAZHUNGUVALATTIL HOUSE, THEKKUKARA,, WADAKKANCHERRY.** - **3 THE ORIENTAL INSURANCE CO. LTD., PRANAVAM, MELE PATTAMBI, PATTAMBI-679 306, POLICY NO.1561/2007, VALID FROM 13/5/2006 TO 12/5/2007.** - **4 MUHAMMED KUTTY, S/O. USAF,** - **EDAKKATTIL VEEDU, ATTOOR, PANCHAL P.O., THALAPPILLY TALUK.** - **R3 SMT. K.S. SANTHI, SC, ORIENTAL INSURANCE CO. LTD.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- **MACA NO. 3015 OF 2009** ## **C.S. DIAS, J. ---------------------------------------------------MACA No.3015 of 2009** ## **---------------------------------------------------Dated this the 17[th] day of March, 2022** ## **JUDGMENT** The appellant was the petitioner in O.P.(MV) No.1188 of 2006 on the file of the Motor Accidents Claims Tribunal, Ottapalam. 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 sustained to him in an accident on 22.08.2006. It was his case that, on the above said date, while he was riding his motorcycle bearing registration No. KL-9/temp-7481/2006 from Chelakkara to Vazhakode, a goods autorickshaw bearing registration No. KL-8/AE-3335, driven by the first respondent in a rash -3- ## **MACA NO. 3015 OF 2009** and negligent manner, hit the motorcycle. The appellant fell and sustained multiple injuries, including a compound comminuted fracture of his right patella and an avulsion fracture of the lateral femoral condyle right wrist. He was treated as an inpatient for a period of eight days at Divine Medical Centre, Wadakkanchery. The fourth respondent was the owner and the third respondent was the insurer of the autorickshaw. The appellant was a coolie by profession and was earning a monthly income of Rs.3,500/-. Hence, the appellant claimed a compensation of Rs.2,98,000/- from the respondents, which claim was limited to Rs.1,50,000/-. 3. The second respondent had filed a written statement stating that he was an unnecessary party because he had sold the autorickshaw to the fourth respondent as per an agreement. 4. The third respondent had filed a written -4- ## **MACA NO. 3015 OF 2009** statement denying the allegations in the claim petition. The third respondent also disputed the age, income and occupation of the appellant. 5. The appellant had produced and marked Exts.A1 to A9. The second respondent had produced and marked Exts.B1 to B3 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, entered into a finding that, as the first respondent did not hold a valid driving licence, the fourth respondent had violated the insurance policy conditions. Accordingly, the Tribunal directed the third respondent to pay the appellant an amount of Rs.52,450/- with interest and cost of Rs.1,500/- and recover the amount from the fourth respondent. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. -5- ## **MACA NO. 3015 OF 2009** 8. Heard; Sri. Sheji P. Abraham, the learned counsel appearing for the appellant/petitioner and Sri. K.S. Santhi, the learned counsel appearing for the third respondent insurer. 9. Ext.A4 final report filed by the police proves that the accident occurred due to the negligence of the first respondent. Even though the autorickshaw had a valid insurance policy, it is proved that the first respondent did not hold a valid driving licence. Therefore, the Tribunal has rightly arrived at the finding that, the fourth respondent had violated the insurance policy conditions. Thus, the direction of the Tribunal permitting the third respondent to pay the compensation amount and recover the same from the fourth respondent is sustainable in law and is confirmed. ## **Income** 10. The appellant had claimed that he was a -6- ## **MACA NO. 3015 OF 2009** coolie worker by profession and was earning a monthly income at Rs.3,500/-. For want of material, the Tribunal fixed the notional monthly income of the appellant at Rs.2,500/-. 11. 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.4,500/- per month. 12. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2006, I re-fix the notional monthly income of the appellant at Rs.3,500/- as claimed in the claim petition. ## **Disability** 13. The appellant had produced Ext.A7 disability certificate issued by a Consultant Orthopaedic and Arthroscopic Surgeon, who has found that the -7- ## **MACA NO. 3015 OF 2009** appellant has a permanent disability of 14.4%. 14. Even though the Tribunal accepted Ext.A7 on its face value, it scaled down the permanent disability to 3%. 15. In **Rajkumar v. Ajay Kumar [2011 (1) KLT 620 SC]** , the Hon’ble Supreme Court has categorically held that, what needs to be looked into an injury claim is the functional disability of the injured/claimant. 16. On a re-appreciation of Ext.A7 disability certificate, it is found that the appellant has a uniting fracture of patella with encirelage wiring insitu on the right knee and has difficulty in squating due to pain on the right knee and difficulty in climbing the steps. Being a coolie by profession, I fix his functional disability at 10%. 17. In view of the re-fixation of the notional monthly income of the appellant at Rs.3,500/-, I award -8- ## **MACA NO. 3015 OF 2009** him an amount of Rs.71,400/- taking the multiplier at 7, towards 'loss of earning capacity', instead of Rs.16,200/- awarded by the Tribunal. ## **Loss of earnings** 18. The Tribunal has found that the appellant was indisposed for a period of three months. 19. On a consideration that the appellant had suffered a compound comminuted fracture of the patella and avulsion of fracture of lateral femoral condyle, that he was treated as an inpatient for a period of eight days and that he has suffered a functional disability of 10%, I hold that he was indisposed for a period of five months. 20. In view of the re-fixation of the notional monthly income of the appellant at Rs.3,500/-, I award him an amount of Rs.17,500/- towards 'loss of earnings', instead of Rs.7,500/- awarded by the Tribunal. -9- **MACA NO. 3015 OF 2009** ## **Pain and suffering and loss of amenities** 21. The Tribunal has awarded an amount of Rs.8,000/- under the head 'pain and suffering' and Rs.4,000/- under the head 'loss of amenities'. 22. Taking into account the fact that the appellant was hospitalised for a period of eight days, that he was indisposed for a period of five months and that he has suffered a functional disability of 10%, I award him a further amount of Rs.12,000/- under the head 'pain and suffering' and an amount of Rs.6,000/under the head 'loss of amenities'. 23. With respect to the other heads of compensation awarded by the Tribunal, I find the same to be reasonable and just. 24. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the aforecited decisions, I hold that the appellant/petitioner is entitled to enhancement of -10- **MACA NO. 3015 OF 2009** ## compensation as modified and recalculated above and given under the table below for easy reference. |**Sl.** **No.**|**Head of claim**|**Amount** **awarded** **by** **the Tribunal** **(Rs.)**|**Amount** **modified and** **recalculated** **by this Court** **(Rs.)**| |---|---|---|---| |1|Loss of earnings|7,500/ -|17,500/-| |2|Bystander expenses|1,200/-|1,200/-| |3|Extra nourishment|2,000/-|2,000/-| |4|Medical expenses|13,550/-|13,550/-| |5|Pain and sufferings|8,000/-|20,000/-| |6|Loss of amenities|4,000/-|10,000/-| |7|Loss of earning capacity|16,200/-|71,400/-| ||**Total**|**52,450/-**|**1,35,650/-**| In the result, the appeal is allowed, by enhancing the compensation by an amount of Rs.83,200/- with interest at the rate of 6% per annum from the date of petition till the date of date of deposit and a cost of Rs.5,000/-. The third respondent ‒ insurer is ordered to -11- ## **MACA NO. 3015 OF 2009** 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 this judgment. In view of the finding that the fourth respondent had violated the insurance policy conditions, the third respondent is permitted to pay the compensation amount and recover it from the fourth respondent. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. Sd/- **C.S. DIAS JUDGE** bpr