Shihabudheen.K.P. v. M/s TV Sundaram Iyengar and Sons Limited; Noor Mohammed; Royal Sundaram Alliance Insurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 12[TH] DAY OF JANUARY 2022 / 22ND POUSHA, 1943 ``` ## `MACA NO. 703 OF 2012` ``` AGAINST THE AWARD DATED 20.09.2011 IN OP(MV)NO.1639/2009 OF THE PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE ``` ## `APPELLANT/PETITIONER:` ``` SHIHABUDHEEN.K.P. AGED 28 YEARS, NEITHUKULANGARA HOUSE, CHEVAYUR P.O., KOZHIKODE. BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1M/S.T.V.SUNDARAM IYENGAR AND SONS LIMITED, NEAR YAKKARA BRIDGE, NH47, KADUNTHIRUTHY, KINASSERY P.O., PALAKKAD-678707. ``` ``` 2NOOR MUHAMMED, S/O.ABDUL KHADER PATTEL, AGED 59 YEARS, HOUSE NO.27, P.O.MUMRA, THANA DISTRICT, MUMBAI-400601. 3ROYAL SUNDARAM ALLIANCE INSURANCE CO.LTD., SUNDARAM TOWERS, 45 AND 46, WHITES ROAD, CHENNAI-600 001. ``` ``` BY ADVS.SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.703/2012 -:2:- Dated this the 12[th] day of January,2022 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.1639/2009 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. 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 14.08.2009. It was his case that, on the above day, while he was riding his motorcycle bearing registration No.KL/AC-3897 on the Kondotty-Kozhikode road, a jeep bearing registration No.KL-9/TC-11/96, hit the motorcycle of the appellant. The appellant sustained serious injuries, including fracture of the shaft to the right femur, fracture of the M.A.C.A.No.703/2012 -:3:- right pelvis and inter Trochanter fracture of the right femur. He was treated as an inpatient for a period of 32 days at B.M. Hospital, Kondotty and Medical College Hospital, Calicut. The jeep was owned by the first respondent and insured with the third respondent. The appellant was a construction worker and was earning a monthly income of Rs.6,000/-. Hence, the appellant claimed a compensation of Rs.8,53,000/from the respondents, which claim was limited to Rs.3,50,000/-. 3. The respondents 1 and 2 had filed separate written statements refuting the allegations in the claim petition. They contended that it was third respondent who was to indemnify the liability of the first respondent. 4. The third respondent had filed a written statement and an additional written statement admitting that the jeep had a valid insurance coverage. However, it was contended that the accident occurred M.A.C.A.No.703/2012 -:4:- due to the negligence of the appellant. The third respondent also stated that as per the disability certificate issued by the Medical Board, the appellant had not suffered any loss of earning capacity. Hence, the appellant was not entitled to any amount as compensation. 5. The appellant produced and marked Exts. A1 to A10 in evidence. The disability certificate issued by the Medical Board was marked as Ext.C1. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.2,28,886/- with interest at the rate of 7% per annum from the date of petition till the date of realisation and a cost of Rs.1,000/- 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner M.A.C.A.No.703/2012 -:5:- is in appeal. 8. Heard; Sri.K.M.Jamaludheen, the learned counsel appearing for the appellant/petitioner and Sri.Mathews Jacob, the learned Senior Counsel appearing for the third respondent-insurer. 9. The question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just?. ## **Negligence and liability** 10. Ext.A3 chargesheet filed by the police proves that the accident occurred due to the negligence of the second respondent. Admittedly, the first respondent was the owner and the third respondent was the insurer of the jeep. The respondents have not let in any evidence to discredit Ext.A3 chargesheet. 11. Similarly, the third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first M.A.C.A.No.703/2012 -:6:- ## respondent arising out of the accident. ## **Income:** 12. The appellant had claimed that he was a construction worker and earning a monthly income of Rs.6,000/-. The Tribunal, for the want of materials, fixed the notional income of the appellant at Rs.3,500/per month. 13. 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. 14. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2009, I fix the monthly income of the appellant at Rs.6,000/-, as claimed in the claim petition. ## **Loss of earnings:** 15. The appellant had contended that he was M.A.C.A.No.703/2012 -:7:- indisposed for a period of three months, which was accepted by the Tribunal. However, in view of the re-fixation of the notional monthly income of the appellant at Rs.6,000/-, I award the appellant an amount of Rs.18,000/- towards ‘loss of earnings’, instead of Rs.10,500/- awarded by the Tribunal. ## **Disability:** 16. The appellant had claimed that he had suffered a permanent disability due to the injuries sustained in the accident. He was referred to a duly constituted Medical Board attached to the Medical College Hospital, Calicut. The Medical Board, as per Ext.C1 disability certificate, has assessed the appellant’s ‘permanent disability’ at 36% due to the stiffness of the hip, non-union of the right femur and because the appellant has difficulty in squatting and sitting with cross legs. Nonetheless, the Tribunal scaled down the disability to 25%. 17. In **Rajkumar v. Ajayakumar** [2011(1) KLT M.A.C.A.No.703/2012 -:8:- 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. 18. In the present case, it was the Tribunal who referred the appellant to the Medical Board. The Medical Board after assessing the disability of the appellant arrived at a conclusion that the appellant has 36% ‘permanent disability’. 19. Taking into account the fact that the appellant was a construction worker and that he has stiffness of his hip, a non-union of his femur and also difficulty in squatting and sitting, I fix the ‘functional disability’ of the appellant at 30%. M.A.C.A.No.703/2012 -:9:- ## **Multiplier:** 20. The appellant was aged 25 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 ‘18’, instead of ‘17’ erroneously fixed by the Tribunal. ## **Loss due to disability:** 21. Taking into account the above mentioned factors, namely; the notional monthly income of the appellant at Rs.6,000/-, his ‘functional disability’ at 30% and the ‘multiplier’ at ‘18’, I hold that the appellant is entitled to Rs.3,88,800/- for ‘loss due to disability’, instead of Rs.1,78,500/- awarded by the Tribunal. ## **Bystander expenses and Extra nourishment:** 22. The appellant had claimed an amount of Rs.3,000/- towards ‘extra nourishment’. The Tribunal only awarded an amount of Rs.1,000/- under the said M.A.C.A.No.703/2012 -:10:- head and an amount of Rs.4,800/- towards ‘bystander expenses’. 23. It is proved and established that the appellant was treated as inpatient for a period of 32 days in two spells. Taking note of the fact that the accident occurred in the year 2009, I award the appellant an amount of Rs.400/- per day, for a period of 32 days towards ‘bystander expenses’, which works out to Rs.12,800/- and Rs.200/- per day for a period of 32 days towards ‘extra nourishment’, which amounts to Rs.6,400/-. ## **Pain and sufferings and loss of amenities:** 24. The appellant had claimed an amount of Rs.75,000/- under the head ‘pain and sufferings’ and Rs.25,000/- under the head ‘loss of amenities’. The Tribunal has awarded an amount of Rs.18,000/- and Rs.6,000/-, respectively, under the above two heads, which according to me, is too meager. 25. On a consideration of the fact that the M.A.C.A.No.703/2012 -:11:- appellant had sustained three fractures, that he was treated as an inpatient for a period of 32 days, that he was indisposed for a period of three months and that he has suffered a ‘functional disability’ of 30%, I award him a further amount of Rs.12,000/- under the head ‘pain and sufferings’ and Rs.14,000/- under the head ‘loss of amenities’. 26. With respect to the other heads of compensation namely; 'transportation', ‘damage to clothing’ and 'treatment expenses', I find that the Tribunal has awarded reasonable and just compensation. 27. On a 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. M.A.C.A.No.703/2012 -:12:- |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by this<br>Court| |---|---|---|---| |1|Loss of earnings|10,500|18,000| |2|Transportation|1,000|1,000| |3|Damage<br>to<br>Clothing|500|500| |4|Bystander<br>expenses|4,800|12,800| |5|Extra nourishment|1,000|6,400| |6|Medical expenses|8,586|8,586| |7|Pain and sufferings|18,000|30,000| |8|Loss of amenities|6,000|20,000| |9|Loss<br>due<br>to<br>disability|1,78,500|3,88,800| ||**Total**|**2,28,886**|**4,86,086**| In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.2,57,200** with interest at the rate of 7% per annum from the date of petition till the date of realisation, after deducting interest for a period of 78 days i.e., the period of delay in preferring this appeal and as ordered by this Court on 08.10.2021 in M.A.C.A.No.703/2012 -:13:- C.M.Appln.No.1/2012, and a cost of Rs.15,000/-. The third respondent-insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellant, after deducting his liability, if any, towards court fee, and in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/12.01.22 //True copy/ P.A.To Judge