Sivan v. Suhakk, T. V. Abdul Razak and The New India Assurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 18TH DAY OF MAY 2016/28TH VAISAKHA, 1938** **MACA.No. 2043 of 2014 () -------------------------** **AGAINST THE AWARD IN OPMV 1030/2010 of M.A.C.T.,KOZHIKODE DATED 25-10-2011** ## **APPELLANT/PETITIONER:** **-----------------------** **SIVAN,** **S/O.NARAYANAN, RESIDING AT THEKKEPARAKKAL HOUSE, VADAMPALLY P.O., THRISSUR.** **BY ADVS.SRI.V.S.CHANDRASEKHARAN SRI.M.V.DAS** ## **RESPONDENTS/RESPONDENTS:** **--------------------------** ## **1. SUHAKK,** **RESIDING AT 2/524, SURABHI MANZIL, JAYANTHI ROAD, NALLALAM, KUTTIYILPADAM, KOZHIKODE-673027.** **2. T.V.ABDUL RAZAK, AGED 45 YEARS, S/O.MAMMEDKOYA, RESIDING AT STAR NIVAS, NADAPARAMBU ROAD, KOZHIKODE-673506.** **3. THE NEW INDIA ASSURANCE COMPANY LIMITED, SHAFEER COMPLEX, 6/975D, OPP. YMCA, KANNUR ROAD, KOZHIKODE-673661.** **R3 BY ADV. SRI.VIJU THOMAS R3 BY ADV. SMT.M.MEENA JOHN BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **MACA.No. 2043 of 2014 ()** ## **------------------------APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE-A1 MEMO DATED 27.5.14 ISSUED BY ADV. RASHMI K.V. TO SRI. SANTOSH KUMAR K.P, ADVOCTE CLERK.** **ANNEXURE-A2 REPLY ISSUED BY SRI. SANTOSH KUMAR K.P., ADVOCATE CLERK DATED 30.5.14.** **ANNEXURE-A3 LETTER ISSUED TO SRI. SANTHOSH KUMAR K.P, ADVOCATE CLERK DATED 2.6.14** **ANNEXURE-A4 MEMO ISSUED BY ADV.ANIL THOMAS TO SRI. SANTOSH KUMAR K.P., ADVOCATE CLERK DATED 3.6.14** **ANNEXURE-A5 LETTER ISSUED BY ADV.ANIL THOMAS TO THE REGISTRAR HIGH COURT OF KERALA DATED 4.6.14.** ## **/TRUE COPY/** **P.S. TO JUDGE** **cl** ## **P.N. RAVINDRAN & K. RAMAKRISHNAN, JJ.** .................................................. M.A.C.A.No.2043 of 2014 ....................................................... Dated this the 18[th] day of May, 2016. ## **JUDGMENT** ## **K. RAMAKRISHNAN, J:** The claimant in OP(MV)No.1030/2010 on the file of the Motor Accidents Claims Tribunal, Kozhikode is the appellant herein. The appellant filed the claim petition claiming compensation for the personal injury sustained by him in a motor vehicle accident occurred on 5.4.2010 at 5 a.m. Accoridng to the claimant, while he was walking through Kozhikode Railway station - Town Hall public road and when he reached the place called Mananchira, an auto rickshaw bearing registration No.KL-11-AD 3127 driven by the second respondent, owned by the first respondent and insured by the third respondent came at a high speed in a negligent manner and hit against him and he sustained severe injuries. He was a carpentor by profession and getting Rs.10,000/- per month. He was permanently disabled on account of the injury sustained. According to the claimant, the accident occured due to the negligence of the second respondent and he claimed a total compensation of Rs.2,00,000/- on various heads. 2. Respondents 1 and 3 entered appearance, while the second respondent remained absent. The first respondent contended that there was no negligence on the part of the second M.A.C.A.No.2043 of 2014 2 respondent and the accident occured due to the negligence of the petitioner himself. He had also contended that if at all any compensation is awarded, the same has to be paid by the third respondent insurnace company with whom the vehicle was insured. 3. The third respondent filed a written statement admitting the insurance, but they also contended that the accident occured due to the negligence of the petitioner. They denied the income, age, occupation and disability claimed in the petition According to them, the total compensation claimed is also exorbitant. They also prayed for dismissal of the application. 4. No oral evidence was adduced on either side. Exts.A1 to A5 and Ext.C1 were marked on the side of the petitioner. After considering the evidence on record, the tribunal found that the accident occured due to the negligent driving of the autorickshaw by the second respondent and awarded a total compensation of Rs.92,660/- on various heads as follows: Loss of earning : Rs.12,000/Transport to hospital : Rs.750/Extra nourishment : Rs.500/Damage to clothings and other articles : Rs.250/Treatment expenses : Rs.1,000/Bystander's expenses : Rs.800/Pain & Sufferings : Rs.10,000/Permanent disability : Rs.63,360/Loss of amenities of life : Rs.4,000/------------Total : Rs.92,660/- 3 M.A.C.A.No.2043 of 2014 4. The tribunal also found that respondents 1 and 3 are jointly and severally liable to pay the amount and since the third respondent being the insurer, they are liabile to indemnify the insured and directed them to deposit the amount. Dissatisfied with the quantum of compensation awarded, the present appeal has been preferred by the appellant/injured before the court below. 5. Considering the natrue of dispute in the matter, this court felt that notice to respondents 1 and 2 can be dispensed with as the liability to indemnify the insured has been admitted by the insurance company since only the quantum alone need be considered, this court felt that the appeal can be admitted and disposed of after hearing the counsel for the appellant and the insurance company. So the appeal is admitted dispensing with notice to respondents 1 and 2. 6. Heard Sri.Lekshmi Swaminathan, leanred counsel representing Sri.V.S. Chandrasekharan, learned counsel appearing for the appellant and Sri. Viju Thomas, learned counsel appearing for the third respondent. 7. Learned counsel for the appellant submitted that the monthly income taken is very low. Further, no future prospects have been taken into consideration. The amount awarded under the head pain 4 M.A.C.A.No.2043 of 2014 and suffering, loss of amenities in life and other heads are also on the lower side. 8. On the other hand, learned counsel for the third respondent submitted that the court below had considered all the aspects and the total amount awarded is just and proper. 9. Since the negligence aspect has not been challenged by the insurance company, we are not going into the question in this appeal.The case of the claimant was that he was a carpenter by profession, aged 52 years and earning Rs.10,000/- per annum but court below had taken only Rs.4,000/- as his monthly income. But no future prospect has been taken into consideration while assessing compensation under the head loss of earning capacity. The accident in this case occured in the year 2010. Even in the year 1994, the legislature has taken Rs.15,000/- per annum as notional income. So considering the circumstances, we feel that a carpentor, aged 52 years will be getting atleast Rs.6,000/- per month and we are refixing the monthly income of the injured as Rs.6,000/- per month. 10. In the decison reported in _**Rajesh v. Rajbir Singh** [2013 (3) KLT 89(SC)],_ the Supreme Court has held that even in cases where there is no permanent income, future prospects will have to be taken into consideration and if the age group is above 50 years, M.A.C.A.No.2043 of 2014 5 then 15% will have to be taken for that purpose in the case of assessing compensation under the head loss of dependency. The same principle has been extended in the case of personal injury as well in _**Syed Sadiq v. Divisional Manager, United India Ins. Co.** (AIR_ _2014 SC 1052)._ So the court below had taken 12% as permanent disability as assessed by the medical board evidenced by Ext.C1. Being a carpentor, this will have some impact on his earning capacity as well . So, if a recalculation is made, then the appellant will be entitled to get Rs.1,09,296/-{(6000x115%)x12x11x12%} instead of Rs.63,360/- awarded by the tribunal under the head loss of earning capacity. So, the appellant will be entitled to get an additional amount of Rs.45,936/- under the head loss of earning capacity. He had sustined colles fracture and treated as inpatient for four days and he was immoblized in plaster for some time. So considering this aspect, the amount of Rs.10,000/- awarded by the tribunal under the head pain and suffering appears to be on the lower side and we enhance the same to Rs.20,000/-, thereby the appellant will be entitled to get an additonal amount of Rs.10,000/- under the head pain and suffering. Considering the fact that he suffered 12% permanent disability, it may have some impact on his personal life as well. Considering the age, the impact will be more as well. So the M.A.C.A.No.2043 of 2014 6 amount of Rs.4,000/- awarded by the tribunal under the head loss of amenities in life appears to be on the lower side and we enhance the same to Rs.25,000/-, thereby the appellant will be entitled to get an additional amount of Rs.21,000/- under the head loss of amenities in life. We are not inclined to enhance any amount under other head as the amount awarded by the tribunal under other heads appears to be just and reasonable. So the appellant will be entitled to get an additional compensation of Rs.76,936/-, which we round off to Rs.77,000/-, which the third respondent insurance company is liable to pay with 9% interest from the date of petition till payment excluding the period of 912 days delay in filing the appeal as ordered in C.M.Appln.No.2340/2014 dated 28.3.2016. Three months time is granted to the insurance company to deposit the amount. If the amount is deposited, the claimant is permitted to withdraw the amount. With the above modification of the impugned award of the tribunal, the appeal is allowed in part and disposed of accordingly. Sd/- ## **P.N. RAVINDRAN, JUDGE.** Sd/- ## **K. RAMAKRISHNAN, JUDGE.** **cl /true copy/** **P.S to Judge**