Sojan v. Wasim Raja P.R. & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 24[TH] DAY OF FEBRUARY 2023 / 5TH PHALGUNA,** ## **1944** ## **MACA NO. 2279 OF 2009** ## **AGAINST THE AWARD IN OPMV 1390/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/PETITIONER IN OP(MV):** **SOJAN, S/O DEVASSIKUTTY** - **VAKAPARAMBIL HOUSE, ANNANADU DESOM & PO,, KALLUR-VADAKKUMMURI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS IN OP(MV):** - **1 WASIM RAJA P.R. S/O PULICKEN RAHIM, PULICKEN HOUSE, CHERUVALOOR.** - **2 SUNIL KUMAR S/O.NARAYANAN KUMARAPILLY HOUSE, ANNANADU P.O, MUKUNDAPURAM TALUK.** - **3 UNITED INDIA INSURANCE CO.LTD. BHATKAL (UK), INDIA.** - **4 MUFAS MUBARAK, S/O.MUBARAK BASHEER BAGH, THANA P.O., KANNUR.** - **5 THE CHALAKUDY MUNICIPALITY REPRESENTED BY ITS SECRETARY,, MUNICIPAL OFFICE, CHALAKUDY.** - **6 MAJID, S/O.KHADER KAITHAVALAPPIL HOUSE, AZHOKODE P.O.** **BY ADVS. Dinesh Mathew J Murikan P.K.MANOJKUMAR SHEEJO CHACKO VINOD S. PILLAI(K/631/2012) MOHAMMED THAYIB N.M.(K/1451/2019) NAYANA VARGHESE(K/283/2021) AHAMMAD SACHIN K.(K/001814/2019)** **MACA NO. 2279 OF 2009** **2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 2279 OF 2009** **3** ## **JUDGMENT** The appellant was injured in a road accident, while he was riding pillion on the offending motorcycle, on account of the rash and negligent driving. 2. The uncontroverted facts are to the effect that the motorcycle in question hit a lorry at Chalakkudy; and the Motor Accidents Claims Tribunal, Irinjalakkuda (Tribunal) found both drivers to be negligent. This finding was entered into in OP(MV)No.1390/2004 filed by the appellant, claiming compensation for the injuries to the extent of Rs.2,82,800/-, but which has been allowed only Rs.1,13,500/-. The appellant thus impugns the Award asserting that the compensation granted is inadequate. 3. Sri.P.V.Baby – learned counsel for the appellant, argued that the accident happened in the year 2004 and therefore, that the minimum income which should have been taken in favour of his client was Rs.3,000/-, as claimed by him. He submitted that this is because, going by ## **Ramachandrappa v. Manager, Royal Sundaram Alliance** **MACA NO. 2279 OF 2009** **4** **Insurance Company Ltd.** [(2011) 13 SCC 236], even in the case of a person with unascertainable income in that year, an amount of Rs.4,500/- ought to have been adopted. He then submitted that, even though Ext.A13 medical certificate certified his client's disability to be 12%, it has been unfairly reduced by the Tribunal to 4.5%, under the impression that the former was only for a limb and it had to be revised to be for the whole body, by adopting 1/3 of it. He contended that the medical evidence on record would show that his client was hospitalised for 30 days and that he was continuing treatment for over one year; and therefore, the amount granted under the head 'loss of earnings' is also exiguous. He thus prayed that this appeal be allowed. 4. Sri.Dinesh Mathew Muricken, appearing for respondents 1 and 2 and Smt.Sheejo Chacko, for the 5[th] respondent submitted that the findings of the Tribunal of negligence against their clients are without basis and that the compensation awarded is excessive 5. Sri. P K Manoj Kumar, appearing for the 3[rd] respondent - Insurance Company, submitted that his client has already been exonerated by the Tribunal, finding that the insurance policy of his client in favour of one of the offending **MACA NO. 2279 OF 2009** **5** vehicles is only “Act only/Liability Only” one. He submitted that, therefore, he has nothing to argue in this appeal. 6. When I evaluate and consider the afore – submissions, on the touchstone of the evidence on record copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that it can be acted upon by this Court without dispute - it is rendered inevitable that the claim made by the appellant as his notional income ought to have been allowed, because it is only Rs.3,000/-. This is because, as per **Ramachandrappa** (supra), had no such claim made, an amount of Rs.4,500/could have been authorized as the minimum. 7. Coming to the disability of the appellant, Ext.A13 – Disability Certificate has been issued by a competent Doctor, certifying his disability to be 12%. This has been converted by the Tribunal to 4.5%, as whole body disability, adopting the one-third principle. I am afraid that this was not proper because, the certificate shows that the appellant was unable to lift his right hand above the shoulder level and cannot raise any weight with it either. Thus, the percentile of disability being only for a limb, the Tribunal assumed that it cannot be accepted for the whole body. I must point out that there is no **MACA NO. 2279 OF 2009** **6** hard and non-flexible Rule in this regard, that a limb disability should be converted to a whole body disability in a particular manner in all cases. It has to be decided on a case-to-case basis; and going by the facts involved herein, the petitioner was working as a ‘Catering worker’; and obviously, his inability to use his right hand, particularly when he cannot lift weights or take it above the shoulder level, certainly would cause him a functional disability of a minimum of 10%, going by a very rough estimate. I propose to, therefore, revise the percentile of disability as being 10%, instead of 4.5%, as taken by the Tribunal. 8. Coming to the question of ‘Loss of Earnings’, the medical evidence, namely Ext.A6 - Wound Certificate; Ext.A7 - Medical Certificate; Ext.A8 - C.T Imaging Report; Ext.A9 - Treatment Certificate and Ext.A10 - Nerve Conduction Report, read with Exts.A11 and A12 - Discharge Card and Medical Certificate respectively, establishes the injuries sustained by the appellant namely, dislocation of right elbow and also injury on his head. The documents further shows that he was initially admitted as an inpatient for eighteen days and thereafter, for five days; and the diagnosis entered was of head injury, as also post-traumatic dislocation of right elbow. **MACA NO. 2279 OF 2009** **7** The CT Scan report indicates mild Intraventricular Hemorrhage; and Ext.A10 - Electro Neurography Report records that there was a mild “Right Ulnary Neuropathy, with lesion at the elbow” (sic) of the appellant. It is then asserted by the appellant that he went in for an Ayurvedic treatment about a year after the accident, on 31.05.2005; and this is sought to be established through Ext.A11 - Discharge Card, on which basis, he pleads compensation for ‘Loss of Earnings’ for atleast one year. 9. I have no doubt that the appellant would have had to go through trauma and treatment for a long period of time. However, there is nothing to show that he had suffered ‘Loss of Earnings’ for one year, as claimed; and Ext.A11 - which is the certificate of Ayurvedic treatment from 31.05.2005, would not be sufficient to establish this either. I, therefore, am of the view that, by a very conservative estimate, a period of six months can be taken for the purpose of computation of ‘Loss of Earnings’, adverting to the fact that the appellant had to undergo nearly 23 days of hospitalization. In the afore circumstances, this appeal is allowed, enhancing the compensation under the head ‘Disability’ to be Rs.64,800/-, taking the notional income of the appellant as **MACA NO. 2279 OF 2009** **8** Rs.3,000/- per month and his percentile disability to be 10%. He will also be entitled to a sum of Rs.18,000/- towards ‘Loss of Earnings’ instead of Rs. 12,000/-, as now awarded. In all other heads the findings and computations of the Tribunal are left intact. Needless to say, the appellant will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 7% as awarded by the Tribunal, from the date of claim until it is recovered. He will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. It goes without saying that every other finding of the Tribunal, including on the question of negligence has not been touched upon by this Court; and that all such remain unaltered. Consequently, going by the judgments of the Honourable Supreme Court in **Khenyei v. New India Assurance Co.Ltd [2015(3) KHC 70], Pawan Kumar v. Harkishan Dass Mohan Lal [(2014) 3 SCC 590]** and **T.O. Anthony v. Karvarnan [(2008) 3 SCC 745],** the claimants will be at liberty to recover the full amount of compensation from the owners of either of the vehicles; with the right being reserved **MACA NO. 2279 OF 2009** **9** to such person to recover it from the other, in the proportion as ordered by the Tribunal. ## **Sd/-DEVAN RAMACHANDRAN,** ## **JUDGE** stu/lsn The words “from the insurance company” contained in paragraph starting with 'Needless to say' at page 8 of the Judgment dated 24.02.2023 in MACA 2279/2009 is deleted as per order dated 13.04.2023 in I.A. - 1/2023 in MACA 2279/2009. Sd/-Deputy Registrar