Kerala High Court

Afees @ Hafees Ali vs Shamsudheen on 30 September, 2024

MACA NO. 233 OF 2021
                                   -1-


                                                    2024:KER:72550
              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MR. JUSTICE EASWARAN S.

   MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946

                        MACA NO. 233 OF 2021

        AGAINST THE ORDER/JUDGMENT DATED 19.05.2020 IN OPMV NO.94

OF 2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR

APPELLANT:

             AFEES @ HAFEES ALI
             AGED 27 YEARS
             S/O.MOHAMMEDALI, PADINJARE VALAPPIL HOUSE,
             CHIYANOOR, PALLIKUNNU, KOKKUR P.O, PAVITTAPPURAM,
             ALANKODE ,MALAPPURAM DISTRICT-679 591

             BY ADV P.V.CHANDRA MOHAN


RESPONDENTS:

    1        SHAMSUDHEEN
             S/O. MOHAMMED, ARATHUVALAPPIL HOUSE,
             MOOKUTHALA P.O., NANNAMMUKU,
             MALAPPURAM DT-679 574

    2        UNITED INDIA INSURANCE CO.LTD.,
             REPRESENTED BY ITS BRANCH MANAGER,
             PEEVEES BUILDING, KUTTIPPURAM, VALANCHERY,
             MALAPPURAM DISTRICT,-676 552


             BY ADV SRI.THOMAS MATHEW NELLIMOOTTIL


     THIS    MOTOR   ACCIDENT   CLAIMS   APPEAL   HAVING   BEEN   FINALLY
HEARD ON 30.09.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA NO. 233 OF 2021
                               -2-


                                                   2024:KER:72550
                          JUDGMENT

The claimant in OP (MV) No. 94/2017 on the files of

Motor Accidents Claims Tribunal, Tirur is the appellant.

2. Succinctly stated the facts are as follows: on

23.12.2013 at 9.30 a.m, at Changaramkulam, the accident

took place while he was riding a motorcycle bearing

registration No. KL-54-E-961 which was hit by an

autorikshaw bearing registration No. KL-54-A-6294 driven

by the 1st respondent in a rash and negligent manner. The

claimant was taken to Arafa Hospital, Changaramkulam

and referred to Royal Hospital, Kunnamkulam. According

to the claimant, the accident occurred solely due to the

rash and negligent driving of driver of the autorikshaw.

The Insurance Company appeared and contested the

claim. It was contented that the accident was caused due

to the negligence of the claimant. It was further stated

that driver of the autorikshaw did not have a valid driving

licence. On behalf of the claimant, Exts. A1 to A6 were

marked. The claimant was referred to the Standing MACA NO. 233 OF 2021

2024:KER:72550 Disability Assessment Board which certified the disability

caused to the claimant due to the accident at 13%. Ext.X1

was the treatment file summoned by the claimant from the

Royal Hospital, Kunnamkulam in order to prove the

expenses incurred by him towards the medical treatment.

3. The Tribunal on considering the evidence on

record granted the following compensation:-

Sl. Head of Claim Compensati Amount Basic Vital No on Claimed determine details in a (Rs) d (Rs.) nut shell 1 Loss of earning 75,000 48,000 2 Partial loss of Nil Nil earning 3 Transport to 10,000 12,000 hospital 4 Extra nourishment 5,000 4,500 5 Damage to 2,000 1,000 clothing and articles 6 Others:1)Medical 70,000 50,000 Medical expenses and exp & bystander Bystander expenses.

2)Future treatment 25,000 5,000 expense 7 Compensation for 50,000 50,000 pain and suffering.

8 Compensation for 8,00,000 2,24,640 continuing MACA NO. 233 OF 2021

2024:KER:72550 permanent disability and loss of earning power.

9    Compensation for          5,90,000       25,000 Loss    of
     disfigurement, loss                             amenities
     of amenities of life,
     loss of marriage
     prospects etc, loss
     of education.
     Total                   16,27,000/- 4,20,140/-



While     granting     the   compensation     as     aforesaid,   the

Tribunal fixed the notional income of the claimant at

Rs.8,000/-. The Tribunal however, disbelieved the claim of

the appellant/claimant for reimbursement of Rs.82,633/-

which was incurred by him towards the medical

treatment. It is aggrieved by the aforesaid findings,

claimant has approached this Court with the present

appeal.

4. I have heard Sri. P.V Chandramohan, learned

counsel appearing for the appellant and Sri. Thomas

Mathew Nellimoottil, learned counsel appearing for the

Insurance company.

5. The learned counsel appearing for the appellant,

Sri. P.V Chandramohan submitted that the fixation of MACA NO. 233 OF 2021

2024:KER:72550 notional income of the claimant who was a final year

engineering student at the time of accident and was aged

23 at Rs.8,000/- was thoroughly improper. He relied on

the judgment of the Hon'ble Supreme Court in

S.Vasanthi v. M/s. Adhiparasakthi Engg. College and

Another [AIR 2022 SC 5051] and Basanti Devi and

another v. Divisional Manager, New India Assurance

Company Ltd., and Others [ 2021 KHC 6888] to

contend that in so far the income of a engineering student,

at least an amount of Rs. 13,000/- has to be fixed as

notional income. He further pointed out that the entire

medical bills were misplaced from the office of the lawyer

to whom the bills were entrusted for preferring the claim

before the Tribunal and hence, the claimant had filed an

affidavit stating that he had not produced documents to

claim reimbursement of the amounts so incurred towards

the medical treatment. Later the claimant had also

summoned the treatment records from Royal Hospital,

Kunnamkulam which was marked as Ext.X1. The Tribunal

however relied on Ext.X1 to find that the claimant had MACA NO. 233 OF 2021

2024:KER:72550 visited the hospital for at least 8 times and further that

there was no material to controvert or discredit Ext.X1.

Once the Tribunal had accepted Ext.X1, according to the

learned counsel for the appellant, the Tribunal ought to

have granted the entire amount as compensation. He

further prayed that the compensation under the head loss

of amenities may also to be increased.

6. On the other hand, Sri.Thomas Mathew

Nellimoottil, the learned counsel appearing for the

Insurance company pointed out that the bills were not

proved by the claimant and hence, the Tribunal had rightly

rejected the claim and reasonable compensation were

awarded. He further pointed out that the fixation as has

been done by the Supreme Court in the judgments cited

by the learned counsel for appellant were all cases of

death. The facts of the case before the Supreme Court

cannot be equated with that of the present case and

therefore submitted that the notional income of the

claimant cannot be fixed at Rs. 13,000/- as claimed by the

appellant.

MACA NO. 233 OF 2021

2024:KER:72550

7. I have considered the rival submissions raised

across the Bar.

8. It is indisputed that the appellant was a final

year engineering student. The job prospects of an

engineering student during the time of accident ie, 2013

was certainly bright. Even for a coolie worker, going by

the principles laid down by the Supreme Court in

Ramachandrappa v Royal Sundaram Alliance

Insurance Company Ltd. [AIR 2011 SC 2951],

notional income would be Rs.9,000/-. At any rate, a coolie

worker cannot be equated to that of a final year

engineering student. At the same time, this Court finds

force in the argument of the learned counsel for Insurance

Company that the notional income as fixed by the

Supreme Court cannot be taken as the basis for fixation of

notional income in the facts of the present case. Hence,

this Court has to certainly balance between the principles

laid down by the Supreme Court in Ramachandrappa

(Supra) and also the principles laid down in Basanthi

Devi and another (Supra). Hence, considering the facts MACA NO. 233 OF 2021

2024:KER:72550 and circumstances, this Court deems it appropriate to fix

the notional income of the claimant at Rs.13,500/-.

9. Coming to the next question as to the

acceptability of Ext.X1, no doubt the appellant failed to

prove the contents of the medical bill by producing the

originals of the medical bill. Therefore, the learned

counsel for the Insurance Company is justified in pointing

out that the appellant has not proved the contents of the

medical bill. Having said so, it is pertinent to note that the

appellant had summoned the entire records from the

Royal Hospital, Kunnamkulam and marked the same as

Ext.X1. The Insurance Company admittedly could not

discredit the contents of Ext.X1 as has been rightly found

by the Tribunal. Once the Tribunal has entered a finding

that the contents of Ext.X1 have not been discredited and

in the absence of any appeal against the said finding,

necessarily this Court has to see as to whether the finding

of the Tribunal limiting the amount to Rs. 50,000/- has to

be accepted. On a consideration of the entire facts and

also the finding rendered in the impugned award, this MACA NO. 233 OF 2021

2024:KER:72550 Court is of the considered view that once the file relating

to the medical treatment was marked as Ext.X1, and since

there was no contra evidence, the Tribunal ought to have

accepted the entire records as such and therefore

completely erred in restricting the claim to Rs. 50,000/-.

This is despite the fact that the claimant had filed an

affidavit stating that he had not received any amount

towards reimbursement of the treatment expenses.

Therefore, this Court is of the view that the amount of Rs.

82,633/- has to be granted as the medical expenses to the

claimant/ appellant.

10. In so far as the claim for enhancement under

the head loss of amenities, marriage prospects and loss of

education etc., though there is no evidence regarding the

same, the Tribunal ought to have fixed a reasonable

amount. Considering the facts of the case, this Court

deems it appropriate to fix the same at Rs.50,000/-.

11. In view of the above, the claim of the appellant

is entitled to succeed. Appeal is allowed and the

enhancement is granted as follows:-

MACA NO. 233 OF 2021

2024:KER:72550

Sl. Head of Claim Compensati Amount Enhanced by No on Claimed determine this Court (Rs) d (Rs.) (Rs.) 1 Loss of earning 75,000 48,000 33,000 (13,500 x 6= 81,000-48,000) 2 Partial loss of Nil Nil earning 3 Transport to 10,000 12,000 hospital 4 Extra nourishment 5,000 4,500 5 Damage to 2,000 1,000 clothing and articles 6 Others:1)Medical 70,000 50,000 32,633 expenses and (82,633-50,000) bystander expenses.

2)Future treatment 25,000 5,000 expense 7 Compensation for 50,000 50,000 pain and suffering.

8      Compensation for          8,00,000      2,24,640         1,54,440
       continuing                                           (13,500 x 12 x
       permanent                                             18 x 13/100 =
       disability and loss                                       3,79,080 -
                                                                  2,24,640)
       of earning power.
9      Compensation for          5,90,000       25,000            25,000
       disfigurement, loss                                 (50,000-25,000)
       of amenities of life,
       loss of marriage
       prospects etc, loss
       of education.
       Total                   16,27,000/- 4,20,140/-         2,45,073/-
 MACA NO. 233 OF 2021



                                                 2024:KER:72550

Thus a total amount of Rs.2,45,073/- (Rupees two

lakhs forty five thousand and seventy three only) is

awarded as enhanced compensation. The aforesaid

amount shall carry an interest at 7% from the date of the

application till realization with proportionate costs on the

enhanced compensation. The Insurance Company shall

deposit the enhanced compensation together with interest

and proportionate costs within a period of one month from

the date of receipt of a copy of this judgment. The

claimant shall furnish the details of the bank account to

the Insurance Company for transfer of the amount. The

appeal is ordered accordingly. No order as to costs.