Kerala High Court
U.K.Shaiju vs C.Mirsad on 6 October, 2021
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MACA No.1762 of 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
MACA NO. 1762 OF 2012
AGAINST THE ORDER/JUDGMENT IN OPMV 3043/2004 OF THE MOTOR
ACCIDENT CLAIMS TRIBUNAL , THRISSUR
APPELLANT/S:
U.K.SHAIJU
S/O.KRISHNAN, RESIDING AT UNNIKOCHAN HOUSE,
P.O.KUNDALIYUR, THRISSUR DISTRICT.
BY ADVS.
SRI.T.C.SURESH MENON
SRI.P.S.APPU
SRI.K.A.ANAS
SRI.A.R.NIMOD
RESPONDENT/S:
1 C.MIRSAD
S/O.KUNJU HAJI, RESIDING AT CHALIL HOUSE,
P.O.BLANGAD, CHAVAKKAD, THRISSUR-680 506.
2 SREENIVASAN
S/O.P.A.BALAKRISHNAN, RESIDING AT POOCHATTIL HOUSE,
P.O.ENGADIYOOR, THRISSUR-680 615.
3 THE NEW INDIA ASSURANCE COMPANY LIMITED
ANUGRAHA BUILDING, WADAKKANCHERRY ROAD,
KUNNAMKULAM, THRISSUR-680 503.
BY ADVS.
P.JAYASANKAR
M.MEENA JOHN
VIJU THOMAS
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME
UP FOR ADMISSION ON 06.10.2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
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MACA No.1762 of 2012
C.S.DIAS, J.
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MACA No.1762 of 2012
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Dated this the 6th day of October, 2021.
JUDGMENT
The appellant was the petitioner in OP (MV)
No.3043/2004 on the file of the Motor Accidents Claims
Tribunal, Thrissur. 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 that he sustained
in an accident on 16.10.2004. It was his case that, while
he was travelling pillion on a motor cycle bearing
registration No. KL-8/R 6267 through the Kodungallur-
Chettuva NH Road, the second respondent - rider of the
motor cycle turned the vehicle in a very careless manner.
Consequently, the appellant fell down and sustained
serious injuries including a compound fracture on his
MACA No.1762 of 2012
right leg. He was treated as an inpatient at the M.I
Mission Hospital. The first respondent was the owner
and the third respondent was the insurer of the motor
cycle. The appellant was a Salesman by profession and
earning a monthly income of Rs.4,000/-. The appellant
claimed a compensation of Rs.1,84,500/- from the
respondents.
3. The respondents 1 and 2 did not contest the
proceedings and were set ex parte.
4. The third respondent filed a written statement
admitting that the motor cycle had a valid insurance
coverage. Nevertheless, it was contended that the second
respondent did not hold a valid driving licence. Therefore,
the third respondent was not liable to indemnify the first
respondent.
5. The appellant examined himself and a witness as
PWs 1 and 2 and marked Exts A1 to A9 in evidence. The
third respondent examined RW1 and marked Ext B1 copy
of insurance policy in evidence.
MACA No.1762 of 2012
6. The Tribunal, after analysing the pleadings and
materials on record, allowed the claim petition, in part,
by permitting the appellant to recover an amount of
Rs.61,700/- from the third respondent, who was directed
to pay the compensation amount and recover the said
amount from the first respondent as there was violation
of the policy conditions.
7. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioner is in appeal.
8. Heard; Sri.T.C Suresh Menon, the learned
counsel appearing for the appellant/petitioner and
Sri.Viju Thomas, the learned counsel appearing for the
third respondent /insurer.
9. The question that emerges for consideration in
the appeal is whether the quantum of compensation
awarded by the Tribunal is reasonable and just.
Negligence and liability
10. Ext A2 final report filed by the Police
substantiates that the accident occurred due to the
MACA No.1762 of 2012
negligence of the second respondent. Undisputedly, the
first respondent was the owner of the motor cycle. Even
though the motor cycle had a valid insurance coverage,
the third respondent had specifically contended that the
the second respondent did not hold a valid driving licence
and also the motor cycle did not have a fitness certificate.
Therefore, the first respondent had violated the policy
conditions. The said contention was accepted by the
Tribunal and the third respondent was directed to pay the
compensation amount and recover the amount from the
first respondent. The course adopted by the Tribunal is
legal and justifiable. I do not find any error to interfere
with the above said finding.
Notional Income
11. The appellant had claimed that he was a
Salesman by profession and earning a monthly income of
Rs.4,000/-. Nevertheless, the Tribunal fixed the monthly
notional income of the appellant at Rs.2,500/-.
MACA No.1762 of 2012
12. 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.
13. Following the yardstick in the aforecited
decision and keeping in mind that the accident occurred
in the year 2004, I fix the monthly notional income of the
appellant at Rs.4,000/-.
Loss of earnings
14. It is proved by Ext A5 wound certificate and Ext
A7 disability certificate that the appellant had sustained a
compound fracture on his right leg. He being a
Salesman, could not be expected to carry on his work for
at least a period of three months. In such circumstances,
taking into account the monthly notional income of the
appellant fixed at Rs.4,000/-, I hold that the appellant
was indisposed for three months and is consequently
entitled for compensation for loss of earnings at
MACA No.1762 of 2012
Rs.12,000/-, instead of Rs.5,000/- awarded by the
Tribunal.
Loss due to disability
15. The appellant had produced Ext A7 disability
certificate to substantiate that he has a whole body
disability of 7%. Nonetheless, the Tribunal refused to
accept the said certificate for the reason that the
appellant had not examined the Doctor who had issued
the said certificate.
16. In Raj Kumar v. Ajay Kumar [2011 (1) KLT
620(SC)], the Hon'ble Supreme Court has categorically
held that, if the Tribunal is dissatisfied with the disability
certificate produced before it, it is the bounden duty of
the Tribunal to refer the claimant-injured to a duly
constituted Medical Board. If not, the Tribunal has to
accept the disability assessed in the disability certificate.
17. In the instant case, as the appellant had
produced Ext A7 disability certificate, wherein his
functional disability is assessed at 7% and the Tribunal
MACA No.1762 of 2012
having not referred the appellant to a duly constituted
Medical Board, I hold that the appellant's functional
disability has to be fixed as per Ext A7 at 7%.
Multiplier
18. Admittedly, the appellant was aged 25 years at
the time of the accident. In view of the law laid down in
Sarla Verma v. Delhi Transport Corporation [(2009)
6 SCC 121], the relevant multiplier is '18'.
Loss due to disability
19. Taking into account the aforementioned factors,
namely, the monthly notional income of the appellant at
Rs.4,000/-, his functional disability at 7% and the
multiplier at '18', I refix the compensation for loss due to
disability at Rs.60,480/-.
Other heads of compensation
20. With respect to the other heads of claim, I find
that the Tribunal has awarded reasonable and just
compensation.
In the result, the appeal is allowed by permitting the
MACA No.1762 of 2012
appellant to realise an amount of Rs.67,480/- (Rupees
Sixty Seven Thousand Four Hundred and Eighty only)
(that is Rs.7,000/- towards loss of earnings and
Rs.60,480/- towards compensation for loss due to
disability) from the third respondent with interest at the
rate of 8% per annum from the date of claim petition till
the date of realization and a cost of Rs.4,000/-. The third
respondent is directed to deposit the above
compensation amount with interest and costs before the
Tribunal within a period of sixty days from the date of
receipt of a certified copy of the judgment, with the right
of recovery of the above said amount from the first
respondent after paying the amount. The Tribunal shall,
immediately on the compensation amount being
deposited, disburse the same to the appellant, in
accordance with law.
sd/-
sks/6.10.2021 C.S.DIAS, JUDGE
