Kerala High Court
Nissamudeen K H vs Ansar on 27 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
SATURDAY, THE 27TH DAY OF NOVEMBER 2021/6TH AGRAHAYANA, 1943
MACA NO. 3392 OF 2015
AGAINST THE AWARD IN OPMV 60/2013 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL ,KOTTAYAM
APPELLANT/PETITIONER:
NISSAMUDEEN K H
KARIMANGALKAROTTU, THALAYOLAPARAMBU,
MIDAYIKUNNU P.O.
BY ADVS.
SRI.PHILIP T.VARGHESE
SMT.ACHU SUBHA ABRAHAM
SMT.K.R.MONISHA
SRI.THOMAS T.VARGHESE
RESPONDENTS/RESPONDENTS:
1 ANSAR
PANATTIL HOUSE, KANJIRAMATTOM P.O.,
AMBALLOOR-680 315.
2 THE NATIONAL INSURANCE COMPANY LTD.
KOTTAYAM-686 001.
BY ADVS.SRI.RAJESH THOMAS
SRI.LAL GEORGE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 27.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA No.3392/2015
-:2:-
J U D G M E N T
Dated this the 27th day of November, 2021
The claimant at the Tribunal is the appellant. He challenges
the quantum of compensation awarded to him vide the impugned
award.
2. The claimant met with an accident on 4/11/2012 at
10.30 p.m. He was driving the autorickshaw bearing
Regn.No.KL41/ 2953. At that time, car bearing Regn.No.KL 39/D
1485 driven and owned by the 1 st respondent in a rash and
negligent manner hit against the autorickshaw driven by the
claimant and he sustained injuries. The 2 nd respondent is the
insurer of the car. The claimant sustained injury including type II
open comminuted mid shaft fracture. He was hospitalised for a
total period of seven days. He claimed a total compensation of
`5,00,000/-. The Tribunal awarded `2,78,500/. Dissatisfied with
the said award, the claimant has come up in appeal.
3. I have heard Smt.Shruthi Sara Jacob, the learned
counsel for the appellant and Sri. Lal George, the learned
MACA No.3392/2015
standing counsel appearing for the 2nd respondent insurance
company.
4. At the time of the incident, the claimant was driving
the autorickshaw. However, he contended that he was employed
as a conductor in KSRTC bus. But, no document has been
produced to substantiate the same. The Tribunal found that the
accident occurred due to the rash and negligent driving of the
driver of the car who has been arrayed as the 1 st respondent. The
said finding is not under challenge. Admittedly the car is insured
with the 2nd respondent and the policy was in force at the time of
the accident. The Tribunal awarded a total compensation of
`2,78,500/- under the following different heads:
Head Amount claimed Amount
awarded
1 Loss of earnings `48,000/- `24,000/-
2 Partial loss of earnings `9,000/- Nil
3 Transport to hospital `1,500/- `1,500/-
4 Extra nourishment `1,500/- `1,500/-
5 Damage to clothing and articles `1,500/- `500/-
6 Bystander expenses `12,000/- `6,000/-
MACA No.3392/2015
7 Medicines and treatment `80,000/- `1,03,500/-
8 Pain and sufferings `50,000/- `30,000/-
9 Loss of amenities and inconvenience `1,00,000/- `25,000/-
in life
10 Loss of earning capacity `3,00,000/- `86,400/-
11 For permanent disability `2,50,000/- Nil
12 Damage caused to autorickshaw `20,000/- Nil
Total `8,73,500 `2,78,400/-
limited to rounded to
`5,00,000/- `2,78,500/-
5. The learned counsel for the appellant submitted that
the amount awarded by the Tribunal under each head is very low.
I will deal with the amount awarded by the Tribunal under each
head. Under the head "Loss of Earnings", Tribunal awarded
`24,000/-. In the absence of documentary evidence to show that
the claimant was working as a conductor, Tribunal took the
notional income @`6,000/- per month. Applying the dictum laid
down by the Apex Court in Ramachandrappa v. Manager,
Royal Sundaram Alliance Insurance Company Ltd. [(2011) 3
SCC 236], I am of the view that it is just and proper that the
notional income is fixed @`9,500/- per month. Similarly, I am of
MACA No.3392/2015
the view that the loss of earning has to be calculated for 6
months. Thus under this head, the claimant is entitled to a sum of
`57,000/- The amount awarded under the heads 2 to 5 does not
call for any interference. Only `6,000/- was granted towards
bystander expenses. I am of the view that it has to be enhanced
to `8,000/-. The amount granted towards medicines and
treatment under the head 7 does not call for any interference
inasmuch as the entire amount as per bill was granted. Under the
head "Pain and Sufferings", Tribunal awarded `30,000/- only. The
claim was `50,000/-. Considering the nature of injury sustained
by the claimant and the days of hospitalisation, I am of the view
that it can be enhanced to `40,000/-. Similarly, the loss of
amenities and inconvenience in life can also be enhanced to
`40,000/- from `25,000/- awarded by the Tribunal under the head
9. The learned counsel for the appellant submitted that the
amount awarded by the Tribunal under the head "Loss of Earning
Capacity" is very low. The counsel submitted that permanent
disability was assessed @8% only whereas Ext.X1 disability
certificate produced would show that he had a permanent
disability of 11.2%. The learned counsel for the insurer submitted
MACA No.3392/2015
that to prove the disability certificate, doctor was not examined. I
am of the view that without examining the doctor, no reliance can
be placed on Ext.X1. The Tribunal has, however, taken 8% as
permanent disability which according to me appears very
reasonable. I have already found that notional income has to be
fixed @`9,500/- per month. Accordingly, the amount awarded
under the head 'Loss of Earning Capacity" has to be reassessed.
So taking the multiplier as 15 and loss of earning capacity as 8%,
the total amount under this head would come to `1,36,800/-
(9500x12x15x8%). Hence, the amount awarded by the Tribunal
under each head has to be reassessed as follows:
Head Amount Amount Amount Difference
claimed awarded by reassessed
the Tribunal
1 Loss of earnings `48,000/- `24,000/- `57,000/- `33,000/-
2 Partial loss of `9,000/- Nil Not --
earnings
interfered
3 Transport to `1,500/- `1,500/- " --
hospital
4 Extra nourishment `1,500/- `1,500/- " -
MACA No.3392/2015
5 Damage to `1,500/- `500/- " --
clothing and
articles
6 Bystander `12,000/- `6,000/- `8,000/- `2,000/-
expenses
7 Medicines and `80,000/- `1,03,500/- Not --
treatment
interfered
8 Pain and `50,000/- `30,000/- `40,000/- `10,000/-
sufferings
9 Loss of amenities `1,00,000/- `25,000/- `40,000/- `15,000/-
and inconvenience
in life
10 Loss of earning `3,00,000/- `86,400/- `1,36,800/- `50,400/-
capacity
11 For permanent `2,50,000/- Nil Nil --
disability
12 Damage caused to `20,000/- Nil Nil --
autorickshaw
Total `8,73,500 `2,78,400/- `2,81,800/- `1,10,400/-
limited to rounded to
`5,00,000/- `2,78,500/-
Thus, the appellant is entitled to an additional
compensation of `1,10,400/- (Rupees One lakh ten thousand and
four hundred only). The 2nd respondent is directed to deposit the
said amount along with interest and proportionate costs as
MACA No.3392/2015
ordered by the Tribunal within a period of three months from the
date of receipt of a copy of this judgment. The appeal is allowed
as above.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
Rp
