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Kerala High Court
Firoz Babu vs Ali on 22 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
ND
WEDNESDAY, THE 22
DAY OF MAY 2024 / 1ST JYAISHTA, 1946
MACA NO. 46 OF 2014
AGAINST THE AWARD DATED 08.04.2013 IN OP(MV) NO.490 OF 2010 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM
APPELLANT/PETITIONER:
IROZ BABU,
F
AGED 27 YEARS,
S/O. IBRAHIM, RESIDING AT AMBALAPARAMBIL HOUSE,
PUTHIYANCHERIKKAVU, P.O.PERUMBILAVU, THRISSUR DISTRICT.
Y ADVS.
B
SRI.T.C.SURESH MENON
SRI.A.R.NIMOD
RESPONDENTS/RESPONDENTS:
1 ALI, S/O. ENI, RESIDING AT PONNACHAN VALAPPIL HOUSE, CHERAVALLUR P.O., PERUMBADAPPU, MALAPPURAM DISTRICT-679 580. 2 ABDUL LATHEEF P.K., S/O. KUNJUMOHAMMED, RESIDING AT PALIYAMPATTAYIL HOUSE, PERUMPILAVU, THRISSUR DISTRICT-680 519. 3 THE UNITED INDIA INSURANCE COMPANY LTD., PEEVEES BUILDING, KUTTIPURAM ROAD, VALANCHERY, MALAPPURAM DISTRICT, PIN-676 552. MACA 46 of 2014 2 4 ABDUL GAFOOR, RESIDING AT MANKULANGARA HOUSE, PERUMPILAVU P.O., THRISSUR DISTRICT, PIN-680 519. R3 BY ADVS.SRI.JOHN JOSEPH VETTIKAD, STANDING COUNSEL SRI.P.K.MANOJKUMAR, STANDING COUNSEL SMT.ALICE THOMAS, STANDING COUNSEL THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY EARD H ON 22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA 46 of 2014 3 J U D G M E N T ThisappealisattheinstanceoftheclaimantinOP(MV) No.490 of 2010 on the file of Motor Accidents Claims Tribunal, Ottapalam, challengingtheawardontheground of inadequacy of compensation. 2. On 13.12.2009, at 7.00 a.m., the appellant met with a road traffic accident while he was travelling in KL-8/S-3211 autorickshaw drivenby the2ndrespondent. The auto rickshaw capsized duetotherashand negligent driving by the 2nd respondent, and he sustained serious injuries including fracture of both bones of his right leg. He was hospitalised for 35 days in total and suffered disability of 11% due to the injuries suffered. He approached the Tribunal claiming compensation of Rs.6,45,000/-. But the Tribunal awarded only Rs.4,73,100/- and hence this appeal. MACA 46 of 2014 4 3. The1strespondentwastheowneroftheoffending auto rickshaw, 2nd respondent was its driver, 3rd respondent was its Insurer, and 4th respondent was the insured.The3rdrespondent-Insureradmittedtheaccident as well as the Policy. 4. Now this Court is called upon to answer whether there is any illegality, irregularity or impropriety in the impugned award, warranting interference by this Court. 5.Heardlearnedcounselfortheappellantandlearned counsel for the 3rd respondent-Insurer. 6. Learned counsel for the appellant would submit that theappellantwasworkingasaclerkinGulfcountries andhereturnedtohisnativeonlyon08.12.2009toattend themarriageofhissister.On13.12.2009,hemetwiththe accident. Hewas earning monthlyincomeofRs.15,000/- fromhis workinGulfcountries. But learnedTribunalfixed MACA 46 of 2014 5 his notional income @ Rs.5,000/- only, and according to him, it is on the lower side. 7. The First Information Statement given by the appellant before Police says that, he was working in Gulf countries and he produced Ext.A16 certified copy of passport also to substantiatethat fact.But nodocuments were produced by him to prove his monthly income. Learned counsel for theappellant wouldsubmit that even going by the decision Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC2951],evenacoolieworkerwas eligible to get his notional income fixed @ Rs.7,000/- in the year 2009. Since the appellant was employed in Gulf countries, according to him, he was eligible to get his notional income fixed more than that. MACA 46 of 2014 6 8.The salary,ifany, receivedbytheappellantbefore the Gulf countries cannot be equated with the income, which he oughttohave receivedinIndia, consideringthe expenses he had to incur there, and also the unstable natureof theemployment there.Consideringthefactthat hewasworkinginGulfcountries,priortotheaccidentand he was aged only 24, this Court is inclined to fix his notional income @ Rs.8,000/- per month. 9. Towards loss of earning for six months @ Rs.8,000/-, the appellant is entitled to get Rs.48,000/-. After deducting Rs.30,000/- already awarded, he is entitled to get the balance amount of Rs.18,000/-. 10. Towards bystander expenses, learned Tribunal awarded only Rs.200/- per day for 35 days of hospitalisation. Since the accident was in the year 2009, this Courtis inclinedtogrant Rs.300/- per dayduringthe MACA 46 of 2014 7 period of hospitalisation, which will come to Rs.10,500/- (300x35). AfterdeductingRs.7,000/-alreadyawarded,he is entitled to get the balance amount of Rs.3,500/- as enhancement under the head 'bystander expenses'. 11. For pain and suffering, the appellant claimed Rs.35,000/- before the Tribunal, and Rs.25,000/- was awarded. Theappellantsufferedfractureofbothbonesof rightleg. Hehadundergonesurgicalprocedures,including bonegraftingandhewashospitalisedfor35days.So,this CourtisinclinedtoawardRs.5,000/-moreunderthehead 'pain and suffering'. 12. Towards loss of amenities also, this Court is inclined to award Rs.5,000/- more as the appellant who was a 24 year old man suffered 11% disability, with sensory impairment on his left thigh, right leg etc. and shortening by one inch. MACA 46 of 2014 8 13. For 11%disability,taking hismonthly income@ Rs.8,000/-, he is eligible to get Rs.1,90,080/- (8,000x12x18x11/100). After deducting Rs.1,18,800/- already awarded by the Tribunal, heis entitledtoget the balance amount of Rs.71,280/-. Head of claim Amount Amount ifference to D warded by a awarded in be drawn as the Tribunal appeal enhanced compensation Loss of earning Rs.30,000/- Rs.48,000/- Rs.18,000/- ystander B expenses Rs.7,000/- Rs.10,500/- Rs.3,500/- Pain and suffering Rs.25,000/- Rs.30,000/- Rs.5,000/- Loss of amenities Rs.15,000/- Rs.20,000/- Rs.5,000/- ompensation for C permanent Rs.1,18,800/- Rs.1,90,080/- Rs.71,280/- disability Total Rs.1,02,780/- 14. In the result, the appellant is entitled to get enhanced compensation of Rs.1,02,780/- in total. 15. The3rd respondent-Insurerisdirected todeposit the enhanced compensation of Rs.1,02,780/- (RupeeOne MACA 46 of 2014 9 LakhTwoThousandSevenHundredandEightyonly),with 9% interest per annum, from the date of petition till the date of deposit, (excluding 145 days ofdelay infilingthe appeal) before the Motor Accidents Claims Tribunal, Ottapalam,withinaperiodoftwomonthsfromthedateof receipt of a copy of this judgment. LearnedTribunalshall disburse that amount to the appellant after deducting his liabilities, if any, towards tax, balance court fee, legal benefit funds etc. Theappeal isallowedtotheextent asabove,andno order is made as to costs. Sd/- SOPHY THOMAS JUDGE DSV/-