V. Ibrahimkutty v. Ravi Kumar, Murugan, United India Insurance Co. Ltd. and New India Insurance Co. Ltd. (Deleted) — MACA No.108 of 2014

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` MONDAY, THE 25TH DAY OF MARCH 2024 / 5TH CHAITHRA, 1946 ``` ``` MACA NO. 108 OF 2014 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 20.11.2012 IN OPMV NO.1065 OF 2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL THRISSUR ``` ## **`APPELLANT/PETITIONER`** ## **`V. IBRAHIMKUTTY`** ``` AGED 63 YEARS ``` ``` S/O.ABDUL KHADER MUSLIYAR, ``` ``` PEEDIKA THARAYIL HOUSE,AYIROOR DESOM, PERUMPADAPPU VILLAGE, MALAPPURAMDIST. ``` ``` BY ADVS. ``` ``` SRI.SHEJI P.ABRAHAM ``` ``` SRI.O.K.MURALEEDHARAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ## **`1 RAVI KUMAR, S/O.KRISHNAN`** ``` EDAKKADAVILAI HOUSE, PATTAVAPURAM, ``` ``` PUTHUKKADAI P.O.KANYAKUMARI DISTRICT - 629 014. ``` ## **`2 MURUGAN`** ``` S/O.SUBHASH PILLAI, KURUMKUTTY, PARASSALA -695 502. ``` MACA No.108 of 2014 2 ``` 3 UNITED INDIA INSURANCE CO.LTD MAIN ROAD, THIROOR, KANYAKUMARI DISTRICT -629 014. ``` ``` 4 NEW INDIA INSURANCE CO.LTD (DELETED)* THAZHEPALAM, THIROOR, MALAPPURAM -675 565. ``` ``` *(4 DELETED FROM PARTY ARRAY VIDE ORDER DTD 18/2/14 IN IA 110/14 ) ``` ``` BY ADV SRI.P.MURALEEDHARAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.108 of 2014 3 ## **J U D G M E N T** ``` The appellant herein is the petitioner in OP(MV) No.1065 of 2005 on the file of Motor Accidents Claims Tribunal, Thrissur, challenging the impugned award on the ground of inadequacy of compensation. ``` ``` 2. The appellant met with a road traffic accident on 2/2/2005 at about 9.30 pm, while he was riding a motorcycle through Chavakkad- Puduponnani road. He was knocked down by KL-04/B3974 lorry driven by the 1 st respondent in a rash and negligent manner. He sustained serious injuries including Multiple fractures, and he was treated as in-patient. He suffered permanent disability also due to the injuries suffered in that accident. He approached the Tribunal claiming compensation of ``` MACA No.108 of 2014 4 ``` Rs.2,05,500/-. But the Tribunal awarded only Rs.86,700/-, and hence this appeal. ``` ``` 3. The 1 st respondent was the driver of the offending lorry. The 2 nd respondent was its owner, and the 3rd respondent was the insurer. Respondents ``` ``` 1 and 2 were ex-parte before the Tribunal. The 3rd respondent though opposed the claim, admitted the policy during the period of accident. ``` ``` 4. In the appeal, appearance of the respondents 1 and 2 were dispensed with, since the 3rd respondent/insurer appeared, and admitted the policy. ``` `5. Heard learned counsel for the appellant and` `learned counsel for the 3rd respondent.` `6. The main ground on which the appellant is` MACA No.108 of 2014 5 ``` assailing the award is that, though he was a 52 year old man running a grocery shop earning monthly income of Rs.10,000/-, the Tribunal notionally fixed his monthly income @ Rs.2,500/-. It is true that no documents were produced by the appellant to prove his occupation or income. So the Tribunal cannot be blamed for not accepting his monthly income as Rs.10,000/- on the basis of his oral testimony. Going by the decision Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951] , even a coolie worker in the year 2005, was entitled to get his notional income fixed @ Rs.5,000/- per month. So, this Court is inclined to fix his monthly income notionally @ Rs.5,000/-. Exhibit A2 wound certificate shows that he suffered Multiple abrasions and Fracture of left ``` MACA No.108 of 2014 6 ``` frontal bone, right maxilla, right 3rd rib etc.. So in all probability, he might not have been able to do any job for a period of four months. Though the appellant claimed Rs.45,000/- towards loss of earning, no amount was awarded by the Tribunal under that head. Taking notional income @ Rs.5,000/- per month, for a period of four months, the petitioner is entitled to get Rs.20,000/- (5,000 x 4) under the head loss of earning. ``` ``` 7. Exhibit A11 disability certificate shows that, the appellant had suffered 7.97% whole body disability. Though that document was marked subject proof, the appellant did not examine the Doctor who issued that certificate. Since the percentage of disability mentioned in Exhibit A11 was with respect to the whole body, and the Doctor who ``` MACA No.108 of 2014 7 ``` issued the certificate was not examined, learned Tribunal was inclined to take his disability as 4%, and this court finds nothing to interfere with that finding. Since the appellant was aged 52, the multiplier applicable was 11. Taking his monthly income as Rs.5,000/-, compensation for permanent disability can be reassessed as ``` ``` Rs.26,400/-(5000x12x11x4%). He was already awarded ``` ``` Rs.13,200/- under the head disability. So, he is entitled to get the balance amount of Rs.13,200/-. ``` ``` 8. Towards extra nourishment though the appellant claimed Ras.2,500/-, the Tribunal awarded nothing. Ext.A2 wound certificate shows that most of the injuries were on his face including fracture of left frontal bone and left maxilla. So he might not have been able to take normal food at least for ``` MACA No.108 of 2014 8 ``` some days. So this court is of the view that, the claim of Rs.2,500/- towards extra nourishment is quite reasonable, and so it is allowed. ``` ``` 9. Towards damages to clothing also, no amount was awarded by the Tribunal. This Court is inclined to award Rs.500/- towards damages to clothing. ``` ``` 10. Towards pain and suffering, though the claim was Rs.25,000/-, the Tribunal awarded only Rs.18,000/-. Considering the nature of injuries suffered by the appellant, and the period of hospitalization, this court is inclined to award Rs.20,000/-, towards pain and suffering. So he is entitled to get the balance amount of Rs.2,000/- ``` ``` 11. The enhanced compensation awarded in this appeal is stated in the table below:- ``` MACA No.108 of 2014 9 |Head of claim|Amount<br>awarded by the<br>Tribunal|Amount<br>awarded in<br>appeal|Difference to be<br>drawn as enhanced<br>compensation| |---|---|---|---| |Loss of earning||20,000/-|20,000/-| |Disability|13,200/-|26,400/-|13,200/-| |Extra<br>nourishment||2,500/-|2,500/-| |Damages to<br>clothing||500/-|500/-| |Pain and<br>suffering|18,000/-|20,000/-|2000/-| |TOTAL 38,200/-|||| ||||| ``` 12. So the appellant is entitled to get enhanced compensation of Rs.38,200/- towards ``` ``` enhanced compensation with interest at 8% p.a. ``` ``` 13. The 3 rd respondent/insurer is directed to deposit the enhanced compensation in the bank account of the appellant, with 8% interest per ``` ``` annum, from the date of petition till the date of ``` MACA No.108 of 2014 10 ``` deposit (excluding 307 days of delay in filing the appeal) within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 ``` ``` after deducting the liabilities, if any, of appellant towards Tax, balance court fee and legal benefit fund. ``` ``` The appeal is allowed to the extent as above, and no order is made as to costs. ``` Sd/- **SOPHY THOMAS, JUDGE** ska