Siddique v. Umesh R., Nishad A., United India Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH FRIDAY, THE 8TH DAY OF JULY 2016/17TH ASHADHA, 1938 MACA.No. 1987 of 2011 ( ) -------------------------AGAINST THE AWARD IN OPMV 1172/2004 of M.A.C.T,THRISSUR DATED 28-05-2011 APPELLANT(S)/PETITIONER: --------------------------------- SIDDIQUE. S/O. SAIDALAVI, PUTHUVACHOLA HOUSE, KALKANDI P.O. ATTAPADY, PALAKKAD DISTRICT BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENT(S)/RESPONDENTS: ----------------------------------- 1. UMESH R, S/O.LATE RAJAPPAN, CHENGANI HOUSE, KANNAMKULAM MOOLANCODE,KIZHAKKENCHERY, PALAKKAD DISTRICT-678001 2. NISHAD A. S/O.ABDUL RAHIMAN, MELEDATH HOUSE, CHUVATTPADAM, KANAKKANTHURUTHY, PANNIYAMKARA, PALAKKAD DISTRICT 678001. 3. UNITED INDIA INSURANCE CO.LTD REP.BY DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE, THRISSUR- 680001 R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL R3 BY ADV. SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& K.P.JYOTHINDRANATH, JJ.** ## **==========================** ## **M.A.C.A. No.1987 OF 2011** **==========================** Dated this the 8[th] day of July, 2016 ## **JUDGMENT** _Ravikumar, J._ This appeal is filed by the injured-petitioner in O.P.(MV). No.1172 of 2004 on the files of the Motor Accidents Claims Tribunal, Thrissur on being aggrieved by the quantum of compensation fixed therein. 2.The facts, relevant for disposal of this appeal, are as follows:On 9.1.2004 at about 9.45 a.m., while the appellant was walking alongside of Thrissur-Palakkad National Highway, a motor cycle bearing Reg.No.KL-9/M 1370, driven by the second respondent from east to west, knocked him down. On sustaining injuries, he was taken **M.A.C.A.1987/2011** 2 to Crescent Hospital, Alathur and he remained there as an inpatient for a period of 11 days. The injuries sustained by him resulted in permanent disability. It is in the said circumstances that he filed the aforesaid claim petition seeking a total compensation of `1,81,000/-. 3.Before the Tribunal, the appellant got marked Exts.A1 to A8 series. Though Ext.X1 is marked as a witness exhibit, the evidence on record would reveal that no witness was examined before the Tribunal and in fact, Ext.X1 is the case sheet summoned from the hospital. No oral evidence was adduced by both sides and in fact, the respondents did not adduce any documentary evidence as well. The Tribunal, as per the impugned judgment and award, granted `78,333/- as compensation with interest @ 8% per annum from the date of the petition (13.5.2004) till realisation. It is seeking enhancement of the said quantum of compensation that the captioned appeal has been preferred. **M.A.C.A.1987/2011** 3 4.We have heard the learned counsel for the appellant and also the learned counsel for the third respondent. As per order dated 6.12.2011, this Court dispensed with notice to respondents 1 and 2 as the third respondent admitted the existence of a valid insurance policy in respect of the vehicle involved in the accident and thereby the liability to indemnify its insured-owner. On hearing the rival contentions, in fact, it is admitted by the parties that there is no dispute regarding the cause of the accident as the negligence from the part of the second respondent who rode the vehicle on the date of the accident. The learned counsel for the appellant contended that the Tribunal went wrong in fixing the monthly income of the appellant as also the multiplier for the purpose of calculating compensation payable for permanent disability incurred by the appellant due to the accident. The learned counsel for the third respondent-insurance company resisted the contentions and contended that the Tribunal had acted only lawfully in fixing the monthly income notionally as the appellant had failed to establish his averments relating occupation and **M.A.C.A.1987/2011** 4 income. Obviously, in the claim petition, the appellant stated that he was working as a Salesman engaged in the door-to-door sale of household articles and was earning an amount of `5,000/- per month. However, the appellant could not establish his occupation as also income. Hence, the Tribunal cannot be found fault with, in fixing the monthly income of the appellant notionally for calculation purpose. Therefore, the question to be looked into is whether the fixation of monthly income of the appellant notionally at `2,500/- invites any interference. 5.First of all, we will consider the correctness of the identification of the multiplier. The accident occurred on 9.1.2004 and on the date of the accident, the appellant was aged only 22 years. The Tribunal adopted the multiplier as 16 on the ground that the appellant had failed to adduce any evidence to prove his age. But at the same time, it is nobody's case the appellant was then belonging to the age group 31-35 years for the purpose of adopting the multiplier **M.A.C.A.1987/2011** 5 16. It is evident that in the medical records, the age of the appellant was consistently shown as 22 years. Even if the age is slightly taken as higher than 22 years or even up to 25 years, it would not make any difference as regards the multiplier; because for the age group 21-25 years, the multiplier to be adopted in the light of the schedule given in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802** **(SC)],** is 18. Therefore, it is evident that the Tribunal had erred in identifying the appropriate multiplier. Accordingly, we adopt the multiplier as 18. 6.While considering the question of requirement to interfere with the fixation of the monthly income, we are of the view that we cannot loss sight of the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236].** Evidently, in that case, in respect of a coolie who met with an accident in the year 2004, the Apex Court fixed an amount of `4,500/- notionally as the monthly **M.A.C.A.1987/2011** 6 income, for calculation purpose. Since the accident occurred in the same year and the appellant was then aged only 22 years, we are of the view that the monthly income of the appellant has to be fixed as `4,500/-. 7.While considering the appellant's grievance as relates the fixation of the compensation for the permanent disability incurred by him, his grievance regarding the very assessment of permanent disability has to be taken into account. As against the certification of permanent disability in Ext.A7 viz., 15%, the Tribunal took only 4% as permanent disability. In that context, it is to be noted that Ext.A7 is not issued by a duly constituted medical board. That apart, the Doctor who issued Ext.A7 was not examined before the Tribunal. In such circumstances, the Tribunal cannot be found fault with, in not accepting the entire percentage of permanent disability certified under Ext.A7. Still, the Tribunal took the disability as 4%. However, Ext.A5 wound certificate and Ext.A6 discharge summary together **M.A.C.A.1987/2011** 7 with Ext.X1 case sheet would undoubtedly go to show that in the accident, the appellant sustained the following injuries:- “Deformity and swelling of right leg, lower 1/3[rd,] , mild abrasions over the same site and closed fracture of lower 3[rd] of tibia and fibula of right leg.” Taking into account the fact that the appellant sustained closed fracture on both bones on the right leg, we are inclined to take 5% as the permanent disability, for calculation purpose. On assessment with the aforesaid modified relevant factors, the appellant would be entitled to get an amount of `48,600/- under the head permanent disability. The Tribunal has already granted an amount of `19,200/- under the said head. After deducting the said amount, the appellant would be entitled to get an amount of `29,440/- under that head. Towards loss of earning, the Tribunal granted an amount of `7,500/- for a period of three months @ `2,500/- per month. Taking note of the injuries referred hereinbefore and the treatment underwent by him, we are of the view that the period for loss of earning has to be taken as 5 **M.A.C.A.1987/2011** 8 months. In view of the fact that we have fixed the monthly income of the appellant as `4,500/-, for the aforesaid period of five months, he is entitled to get an amount of `15,000/- additionally. Taking note of the nature of the injuries and the disability incurred in the accident, we are inclined to grant an amount of `5,000/- more towards loss of amenities. In the light of the assessment/enhancement made by us, the appellant is entitled to get an additional compensation of `49,400/-. It is awarded. The said amount of additional compensation will carry interest @ 8% from the date of the petition till realisation. The third respondent is directed to deposit the said amount within a period of one month from the date of receipt of a copy of this judgment. There will be no order as to costs. **Sd/(JUDGE)** **Sd/K.P.JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.1987/2011** 9 **M.A.C.A.1987/2011** 10 ## **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.1987/2011** 11