Thekkil Abdusalam v. Mohammed V.P. and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 7TH DAY OF JULY 2017/16TH ASHADHA, 1939 ## MACA.No. 2079 of 2012 () ------------------------AGAINST THE AWARD IN O.P(M.V) 919/2007 of M.A.C.T., MANJERI DATED 22-05-2012 ## APPELLANT/PETITIONER: --------------------------- THEKKIL ABDUSALAM, SON OF UNNIMOIDEEN, THEKKIL HOUSE, NILAMBUR P.O MALAPPURAM DISTRICT. BY ADV. SRI.M.P.MOHAMMED ASLAM ## RESPONDENTS/RESPONDENTS: ---------------------------------- ## 1. MOHAMMED V.P. SON OF YANHI KURIKKAL, VATTIPARAMBATH HOUSE TUVUUR POST, VIA.PANDIKKAD, MALAPPURAM DISTRICT (DRIVER). ## 2. V. MOHAMMED ABDUL NAZAR, SON OF ALIKUTTY, VADAKKANGARA HOUSE, PAYYANAD POST, MANJERI, MALAPPURAM DISTRICT (OWNER) 3. THE ORIENTAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, THODUPUZHA. R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.** ------------------------------- ## **M.A.C.A.No.2079 of 2012** -------------------------------- **Dated this the 7[th] day of July, 2017** ## **JUDGMENT** ## **Anil K. Narendran, J.** This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Manjeri dated 22.05.2012 in O.P.(MV)No.919 of 2007, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident which occurred on 12.12.2005 while he was travelling as a pillion rider on a motorcycle bearing Reg.No.KL-10/V-8650. At the place of accident, the motorcycle was hit by a bus bearing Reg.No.KL-2/F-8044, driven and owned by respondents 1 and 2 respectively and insured with the third respondent. In the accident he sustained serious injuries. Alleging that the accident occurred due to the rash and negligent driving of the bus by the first respondent driver, claim petition was filed before the Tribunal claiming a total compensation of 8,00,000/- under different heads. ₹ 2. Before the Tribunal, Exts.A1 to A14 were marked on the side of the appellant/claimant and his brother was examined as PW1. The report of the Medical Board and summary sheet were marked as Exts.X1 to X3. The respondents have not chosen to adduce any oral or M.A.C.A.No.2079 of 2012 2 documentary evidence. 3. After considering the materials and evidence on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the bus by the first respondent driver. Since the said vehicle was covered by a valid insurance policy at the time of accident, the third respondent insurer was held liable to indemnify the second respondent owner. Under different heads, the Tribunal awarded a total compensation of 5,70,044/- and directed the₹ third respondent insurer to deposit the said amount before the Tribunal together with interest at the rate of 9% per annum from the date of petition till realisation, with proportionate costs. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in this appeal. 5. We heard the arguments of the learned counsel for the appellant/claimant and also the learned counsel for the third respondent insurer. 6. The sole issue that arises for consideration in this appeal is as to whether the appellant/claimant is entitled for enhancement of the compensation awarded by the Tribunal under different heads. 7. The accident is of the year 2005 and at the time of accident M.A.C.A.No.2079 of 2012 3 the appellant was aged 35 years. He claimed a monthly income of ₹6,000/- by undertaking contract work for ring wells along with his brother. The brother of the appellant was examined as PW1 before the Tribunal. In the absence of any reliable materials, the Tribunal fixed the monthly income of the appellant notionally at 3,500/-. ₹ 8. In **Ramacharappa v. Manager, Royal Sundaram Allicance Insurance Company Limited [(2011) 13 SCC 236]** the Apex Court notionally fixed the monthly income of a coolie who met with a motor accident in the year 2004 as 4,500/-. In the instant case,₹ the accident occurred in December, 2005 and at the time of accident the appellant was an able bodied person aged 35 years. Considering the economic conditions prevailing at the time of accident, we find no reason to disbelieve the claim made by the appellant as to his monthly income. Accordingly, we deem it appropriate to re-fix his monthly income notionally at 6,000/-, as claimed in the claim petition, for the₹ purpose of assessing compensation under different heads. 9. The injuries sustained by the appellant, as borne out from medical records, read thus:- “Hemorrhagic contusions in both frontal regions, diffuse cerebral oedema, subarachnoid hemorrhage in the interhemispheric and tentorial surfaces, pneumocephalus, multiple fractures anterior and posterior wall of left maxillary sinus, comminuted fracture of M.A.C.A.No.2079 of 2012 4 frontal bone with displacement, fracture of both plates of frontal sinus extending through the roof of orbit bilaterally and along the right parietal bone, bilateral fracture of nasal bone and fracture of medial wall of orbits bilaterally.” In Ext.X1 disability certificate, the Medical Board at Manjeri assessed 24% permanent disability. Later, the State Board in Ext.X2 disability certificate assessed the permanent disability as 70% and the same has already been accepted by the Tribunal. In paragraph 9 of the award, the Tribunal has also noted the presence of the appellant before it on 21.4.2012, where he had to be carried by others, as his one leg is paralysed. After interacting with the appellant the Tribunal found that he was physically dependent on others for moving about. It was in such circumstances that, the Tribunal accepted the entire disability as certified in Ext.X2, for assessing compensation under different heads. 10. The compensation awarded by the Tribunal under different heads reads thus; |ds reads thus;||| |---|---|---| |Head|Amount claimed|Amount<br>awarded.| |Loss of earning|₹50,000/-|₹42,000/-| |Medical expenses|₹1,50,000/-|₹56,394/-| |Bystander expenses|Claimed under 4|₹400/-| |Damage to clothing etc.|₹1,000/-|₹ 250/-| |Transportation|₹9,000/-|₹15,000/-| |Pain and suffering|₹30,000/-|₹15,000/-| M.A.C.A.No.2079 of 2012 5 |Head|Amount claimed|Amount<br>awarded.| |---|---|---| |Loss of earning power|₹1,50,000/-|₹4,41,000/-| |Total|₹8,00,000/-|₹5,70,044/-| 11. Towards loss of earning, the Tribunal awarded a sum of ₹42,000/-, at the rate of 3,500/- for a period of 12 months. Though₹ the appellant had undergone inpatient treatment only for a period of four days, the nature of injuries sustained and the disability that has arisen therefrom, as borne out from Ext.X2 disability certificate issued by the State Board, would justify grant compensation under the head loss of earning for a period of 12 months. Since we have already refixed the monthly income of the appellant notionally at 6,000/-, the₹ compensation payable under this head is re-worked as 72,000/-₹ (6,000x12), which would result in payment of an additional compensation of **₹ 30,000/-** . 12. Towards bystander's expenses, the Tribunal awarded a sum of ₹400/and no amount was awarded under the head extra nourishment. Considering the nature of injuries sustained, which has resulted in a permanent disability of 70%, as certified in Ext.X2 disability certificate, we deem it appropriate to grant bystander's expenses and extra nourishment to the appellant for a period of two months, though the actual hospitalisation is only for a period of four M.A.C.A.No.2079 of 2012 6 days. Since the accident is of the year 2005, the appellant is entitled for bystander's expenses at the rate of 150/- per day and that under the₹ head extra nourishment at the rate of 100/- per day. In the result, the₹ compensation payable under the head bystander's expenses is re-fixed as ₹9,000/(150x60), resulting an additional compensation of **₹ 8,600/-** . In addition to this, the appellant will be entitled for a sum of **₹6,000/-** (100x60) under the head extra nourishment. 13. Towards pain and suffering, the Tribunal awarded a sum of ₹15,000/-. As we have already noticed, medical records would show that, in the accident the appellant had sustained serious injuries, which has resulted in 70% permanent disability. Considering the nature of injuries sustained and the treatment the appellant had undergone, we deem it appropriate to re-fix the compensation under this head as ₹30,000/-, resulting an additional compensation of **₹ 15,000/-** . 14. Towards loss of amenities, no amount has been awarded by the Tribunal. In Ext.X2 disability certificate, the State Board has assessed 70% permanent disability. In paragraph 9 of the award, the Tribunal noted the presence of the appellant before it on 21.4.2012, where he had to be carried by others, as his one leg is paralysed. After interacting with the appellant the Tribunal found that he was physically dependent on others for moving about. At the time of accident, the M.A.C.A.No.2079 of 2012 7 appellant was an able bodied person aged 35 years. Considering the nature of disability assessed by the State Board in Ext.X2 disability certificate, we deem it appropriate to grant a sum of **₹ 65,000/-** as compensation under the head loss of amenities. 15. Towards loss of earning power, the Tribunal awarded a sum of 4,41,000/-, taking the monthly income notionally as 3,500/-,₹ ₹ applying the multiplier of '15' applicable to the age group of the appellant and percentage of disability as 70%. Since we have already re-fixed the monthly income of the appellant notionally at 6,000/-, the₹ compensation payable under the head loss of earning power is reworked as 7,56,000/- (6,000x12x15x70/100), resulting an additional₹ compensation of **₹ 3,15,000/-** . 16. Towards damage to clothing, the Tribunal awarded a sum of ₹250/-. Since the accident is of the year 2005, we deem it appropriate to re-fix the compensation under this head as 750/-, resulting an₹ additional compensation of **₹ 500/-** . 17. The compensation awarded by the Tribunal under other heads represents just and reasonable compensation, which warrants no enhancement in this appeal. 18. In the result, the appellant/claimant will be entitled for an additional compensation of **₹ 4,39,600/-** (30,000+8,600+6,000+ M.A.C.A.No.2079 of 2012 8 15,000+65,000+3,15,000) in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. 19. Since insurance coverage of the offending vehicle is not in dispute, the third respondent insurer shall deposit the said amount before the Tribunal, within a period of two months from the date of receipt of a certified copy of this judgment. Since the appellant/claimant is admittedly suffering from 70% permanent disability, as certified by the State Board in Ext.X2 disability certificate, we direct the Tribunal to permit him to withdraw the additional compensation awarded in this appeal, on the same being deposited before the Tribunal, if applied for, however, subject to satisfaction/deduction of additional court fee payable for compensation in excess of the total compensation claimed in the claim petition. The appeal is disposed of as above. No order as to costs. Sd/- **C.T. RAVIKUMAR Judge** Sd/- **ANIL K. NARENDRAN Judge** TKS