Tahira W/o Ismail v. Mohammed T.B; The New India Assurance Co. Ltd.; Mathai

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 14[TH] DAY OF FEBRUARY 2022 / 25TH MAGHA, 1943 MACA NO. 2066 OF 2012** ## **AGAINST THE ORDER/JUDGMENT IN OPMV 2113/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT/S:** TAHIRA W/O.ISMAIL, VATHELI HOUSE, MANJAPETTY, MARAMPALLY P.O. BY ADV K.K.MOHAMED RAVUF ## **RESPONDENT/S:** - 1 MOHAMMED.T.B, S/O.BEERAN, THANAGATHIL HOUSE,MALLYAKAPADY,EDATHALA P.O., ERNAKULAM - 683561 - 2 THE NEW INDIA ASSURANCE CO.LTD. KODAVATH SHOPPING COMPLEX,SUB JAIL ROAD, ALUVA ERNAKULAM - 683101. - 3 MATHAI, S/O.XAVIER, THUNDATHIL HOUSE, NEAR EXCISE RANGE OFFICE,ALUVA, ERNAKULAM - 683101. BY ADV P.G.GANAPPAN-R2 ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 14.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2066 of 2012 ## **C.S.DIAS, J.** ## **====================== MACA No.2066 of 2012** ## **====================== Dated this the 14[th] day of February 2022.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.2113/2005 on the file of the Motor Accident Claims Tribunal, Perumbavoor. 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 her in an accident on 16.9.2005. It was her case that, on the above said date, while she was travelling pillion on a motorcycle bearing registration No.KL-7/H 2731 on the Aluva-Perumbavoor road ridden by her husband, a tempo van bearing registration No.KLI-8884 (van), driven by the third respondent in a rash and negligent manner, hit the 3 MACA No.2066 of 2012 motorcycle on which the appellant was travelling. The appellant fell down and sustained a fracture of medial malleolus avulsion, fracture of lateral malleolus hip and a head injury. She was treated initially at the Sanjoe Hospital, Perumbavoor and then referred to the Medical Trust Hospital, Ernakulam. The appellant was treated as an inpatient from 16.9.2005 to 3.10.2005 for a period of 18 days. The first respondent was the owner and the second respondent was the insurer of the van. The appellant was a coolie worker and was earning a monthly income of Rs.3,500/-. Hence, the appellant claimed a compensation of Rs.2,79,500/- from the respondents, which claim was limited to Rs.1,50,000/-. 3. In the same accident, the appellant's husband died. Her two children, who were also travelling on the motorcycle, also sustained injuries. The appellant and her children filed before the same Tribunal, against the 4 MACA No.2066 of 2012 respondents, OP(MV) No.2114/2005, seeking compensation on account of the death of deceased - husband of the appellant, and also filed OP(MV) Nos . 2448 and 2152 of 2005, seeking compensation on account of the injuries sustained to the two children. 4. The respondents 1 and 3 did not contest the proceedings and were set ex parte. 5. The second respondent/insurer had filed separate written statements in the four claim petitions denying negligence on the part of the third respondent. It was contended that the accident occurred due to the negligence of the deceased - rider of the motorcycle. The third respondent also disputed the age, income and occupation of the claimants in the three claim petitions and the deceased. 6. The Tribunal consolidated and jointly tried the four claim petitions. 5 MACA No.2066 of 2012 7. The claimants had examined the Doctor who issued the disability certificate as PW1 and marked Exts A1 to A24 in evidence. The respondents did not let in any evidence. 8. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition, in part, by permitting the appellant to recover from the second respondent an amount of Rs.73,890/- with interest and cost. However, the Tribunal attributed composite negligence on the appellant to the extent of 25% and held that the appellant was only entitled to an amount of Rs.55,418/with interest and cost. 9. Aggrieved by the finding of composite negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 6 MACA No.2066 of 2012 10. Heard; Sri.K.K.Mohammed Ravuf, the learned counsel appearing for the appellant/petitioner and Sri.P.G Ganappan, the learned counsel appearing for the second respondent/insurer. 11. The points that arise for consideration in the appeal are (i) whether the finding of composite negligence is sustainable in law, and (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Question No.(i)** 12. Admittedly, the appellant was a pillion rider on the motorcycle. 13. A Division Bench of this Court in **Sajad Saheer v. Rajeev [2017 (3) KHC 294]** has categorically held that the finding of composite negligence on the part of the pillion rider is unsustainable in law. 7 MACA No.2066 of 2012 14. Furthermore, as per Ext A3 final report filed by the Perumbavoor Police in crime No.512/2005, it is proved that the accident occurred due to the negligence of the additional third respondent. 15. The respondents have not let in any evidence to discredit Ext A3 final report. Therefore, the finding of the composite negligence attributed against the appellant and deducting 25% of the compensation amount is erroneous and unsustainable in law. Hence, I set aside the finding of composite negligence as against the appellant to the extent of 25% and hold that she is entitled to the entire amount of Rs.73,890/-, i.e., an additional amount of Rs.18,472/-. I answer Question No. (i) in favour of the appellant accordingly. **Question No.(ii)** ## **Notional Income** 16. The appellant had claimed that she was a coolie 8 MACA No.2066 of 2012 worker by profession and earning a monthly income of Rs.3,500/-. For the want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.3,000/-. 17. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 18. Following the yardstick in the above-mentioned decision and considering the fact that the accident occurred in the year 2005, I re-fix the notional monthly income of the appellant at Rs.3,500/-, as claimed in the claim petition. ## **Loss of earnings** 19. It is proved as per Exts A15 disability certificate and A19 discharge summary, that the appellant has 9 MACA No.2066 of 2012 suffered a fracture of the shaft femur right and that she was treated as an inpatient for a period of 18 days from 16.9.2005 to 3.10.2005. 20. It is proved by Ext A15 disability certificate that she has partial ankylosis of her ankle joint and a permanent disability of 7%. In the above factual matrix, considering the fact that the appellant was a coolie worker by profession, I hold that she was indisposed for a period of four months. 21. In view of the refixation of the notional monthly income of the appellant at Rs.3,500/-, I award her an amount of **Rs.14,000/-** under the head 'loss of earnings', instead of Rs.6,000/- awarded by the Tribunal. ## **Disability** 22. The appellant had produced Ext A15 disability certificate issued by the Civil Surgeon attached to the Taluk Headquarters Hospital, Perumbavoor. As per Ext 10 MACA No.2066 of 2012 A15, it is seen that the appellant has a permanent disability of 7%. However, the Tribunal scaled down the disability of the appellant to 4%, without any apparent reason. 23. In **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)]** , the Hon'ble Supreme Court has held that if the Tribunal is not satisfied with the disability certificate produced before it, the Tribunal has to refer the injuredclaimant to a Medical Board. Moreover, what needs to be looked into in an injury claim is the functional disability of the injured-claimant. Also, if a disability certificate is marked with the consent of the parties, the same can be accepted in evidence. 24. In the instant case, the Tribunal after accepting Ext A15 disability certificate and marking it in evidence, without any objection from the respondents, has scaled down the disability from 7% to 4% without any reason 11 ## MACA No.2066 of 2012 whatsoever. The Tribunal has also failed to refer the appellant to a Medical Board. The course adopted by the Tribunal is erroneous and against the principles laid down in **Raj Kumar** (supra). Therefore, I accept the assessment made in Ext A15 and fix the functional disability of the appellant at 7%. ## **Multiplier** 25. Admittedly, the appellant was aged 28 years at the time of the accident. In the light of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier to be adopted is '17'. ## **Loss due to disability** 26. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at 3,500/-, the multiplier at '17' and her functional disability at 7%, I award the appellant an 12 MACA No.2066 of 2012 amount of **Rs.49,980/-** towards loss due to disability, instead of Rs.24,480/- awarded by the Tribunal. ## **Bystander expenses and Extra Nourishment** 27. It is proved by Ext A19 discharge summary that the appellant was treated as an inpatient for a period of 18 days from 16.9.2005 to 3.10.2005. 28. On a consideration of the fact that the accident occurred in the year 2005, I award the appellant an amount of Rs.400/- per day for a period of 18 days towards bystander expenses, which works out to **Rs.7,200/** - and an amount of Rs.200/- per day for a period of 18 days towards extra nourishment, which amounts to **Rs.3,600/-.** ## **Pain and sufferings and Loss of amenities** 29. The Tribunal has awarded an amount of Rs.14,000/- under the head 'pain and sufferings and Rs.8,000/-under the head 'loss of amenities'. 13 MACA No.2066 of 2012 30. Taking into account the fact that the appellant was treated as an inpatient for a period of 18 days, that she was indisposed for a period of four months and that she had suffered a functional disability of 7%, I award her a further amount of **Rs.6,000/-** under the head 'pain and sufferings' and **Rs.7,000/** - under the head 'loss of amenities'. ## **Other heads of compensation** 31. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 32. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the aforecited precedents, I hold that the appellant/petitioner is entitled to enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. 14 MACA No.2066 of 2012 |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|6,000/-|14,000/-| |2|Transportation expenses|500/-|500/-| |3|Extra nourishment|1,000/-|3,600/-| |4|Bystander expenses|1,700/-|7,200/-| |5|Medical expenses|18,010/-|18,010/-| |6|Pain and sufferings|14,000/-|20,000/-| |7|Damage to clothing|250/-|250/-| |8|Loss due to disability|24,480/-|49,980/-| |9|Loss of amenities etc|8,000/-|15,000/-| ||Total|73,890/-<br>actually<br>Rs.73,940/- -<br>25% =<br>Rs.55,418/-|1,28,540/-| In the result, the appeal is allowed, by enhancing the compensation by a further amount of **Rs.54,650/-** (Rupees Fifty Four Thousand Six Hundred and Fifty only) and also awarding the appellant an amount of **Rs.18,472/-** ( i.e., the 25% that was deducted towards composite negligence of the appellant), totalling 15 MACA No.2066 of 2012 to an amount of **Rs.73,122/-** with interest at the rate of 7% per annum on the enhanced compensation from the date of claim petition till the date of realisation after deducting interest for a period of 357 days, i.e., the period of delay in filing the appeal and as ordered by this Court on 26.10.2021 in C.M Appln No.2/2012, and a cost of Rs.7,500/-. The second respondent is ordered to deposit the compensation amount of **Rs.73,122/-** with interest and cost before the Tribunal within a period of 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 /petitioner, in accordance with law. Sd/- sks/14.2.2022 **C.S.DIAS, JUDGE**