Kerala High Court
Began Miyan @ Mushtaq vs The Branch Manager on 25 September, 2024
2024:KER:71643
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2024 / 3RD ASWINA, 1946
MACA NO. 273 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 03.07.2020 IN OPMV
NO.506 OF 2015 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT -
III/ ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL-II, MAVELIKKARA
APPELLANT:
BEGAN MIYAN @ MUSHTAQ
AGED 50 YEARS
S/O. HUSSAIN MIYAN, BHAGAVANPUR, SARAN, SUDHIHAR
P.O., BIHAR-841 222.
BY ADV RESMY M.S
RESPONDENT:
THE BRANCH MANAGER,
ORIEINTAL INSURANCE CO. LTD., PALAKKAT BUILDING,
M/S. GOPAN AUTOMOBIL COMPLEX, MARKET JUNCTION,
THRIPPUNITHARA, COCHIN-682 301.
BY ADV SRI.P.BHARATHAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 25.09.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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-2-
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JUDGMENT
The petitioner/claimant in OP(MV) No.506 of 2015
on the files of Motor Accidents Claims Tribunal - II,
Mavelikara submitted this appeal dissatisfied in the
quantum of compensation granted to him.
2. The facts in brief, are as follows: on 22.05.2014,
when the appellant was travelling in a cabin of mini lorry
bearing Registration No.KL-23-E-8323 from south to north
along Kayamkulam - Haripad NH 47, and when the mini
lorry reached Power City junction the offending mini lorry
bearing Registration No.KL-43C-3795 driven by the 1 st
respondent in a rash and negligent manner came in the
opposite direction and hit the mini lorry of the appellant.
The claimant suffered severe injuries and both the feet
were amputated at the ankle. He was working as a laborer
in a Marbles Shop and thus claimed Rs.12,000/- as monthly
income.
3. The Medical Board assessed the disability at 62%
and accordingly the Tribunal calculated the compensation
as follows:
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Sl Head of claim Amount Amount Basis-vital
No. claimed (in awarded detail in
rupees) (in rupees) nutshell
1 Loss of earnings 2,00,000/- 36,000/- (6,000 x
6)
2 Partial loss of earnings ---- Nil
3 Transportation 10,000/- 8,000/- 1,000 x 8
4 Extra Nourishment 10,000/- 3,500/-
5 Damages to clothings 1,000/- 1,000/-
6 Medical expenses 50,000/- 214/-
7 Bystander expenses 36,000/- 24,900/- 83 x 300
8 Compensation for loss 5,00,000/- 15,000/-
of amenities in life
9 Compensation for 1,00,000/- 50,000/-
pain and sufferings
10 Compensation for 10,13,000/- 7,25,400/- 6,000 x 12
permanent disability, x 13 x
disfiguration and loss of 62/100 x
11 Total Rs. Rs.8,60,51
20,00,000/- 4 + 3500
=
8,64,014/-
4. The present claim in OP(MV) No.506 of 2015 was
tried along with the claim preferred by the legal heirs of
the driver, who died in the accident. Exts.A1 to A23
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documents were marked in common and the Tribunal thus
proceeded to grant the compensation as per the table
extracted above.
5. I have heard Smt. Resmy.M.S., the learned
counsel appearing for the appellant and Sri. U.
Anandapadmanabha Menon representing Sri.P.Bharathan,
the learned counsel appearing for the Insurance Company.
6. Smt.Resmy.M.S, the learned counsel appearing
for the appellant contended that the wife of the driver was
examined as PW2 would depose that the appellant was
working as a laborer in a Marbles Shop and was drawing
income at Rs.12,000/- and therefore the tribunal ought not
have fixed the income at Rs.6,000/-. Even going by the
principles laid down by the Supreme Court in
Ramachandrappa v Royal Sundaram Alliance
Insurance Company Ltd. [AIR 2011 SC 2951], the
appellant is entitled to have the notional income fixed at
Rs.9,500/-. It is further pointed out that though the
certificate of disability shows 62% of disability of the
appellant, since both feet were amputated above ankle, the
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Tribunal ought to have taken 100% functional disability
and having not taken so, there is abdiction.
7. On the other hand, the learned counsel
appearing for the Insurance Company, justified the award
passed by the Tribunal and pointed out that no evidence
was produced before the Tribunal to show that the
claimant was drawing income at Rs. 12,000/- and therefore,
prays that no interference is called for in this appeal.
8. I have considered the rival submissions raised
across the Bar and perused the award passed by the
Tribunal.
9. It is an unfortunate aspect to notice that the
laborer working in a Marble Shop, which involves loading
and unloading work, had undergone serious injuries in the
accident which resulted in amputation of two feets above
the ankle, thus, preventing him from carrying out the
avocation. The percentage of disability fixed by the Medical
Board is not sacrosanct. Depending upon the avocation
carried out by the claimants, the Tribunals are certainly
empowered to fix the percentage of disability. In this
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context, it is to be noted that a laborer, who was engaged
in loading and unloading of marbles, which is definitely of
a strenuous nature, cannot be expected to perform his
avocation with a 62% disability. Therefore, this Court is
clear in its mind that the Tribunal ought to have fixed 100%
functional disability in the case of the claimant.
10. Coming back to the fixing of the notional
income, even going by the principles laid down by the
Supreme Court in Ramachandrappa v Royal Sundaram
Alliance Insurance Company Ltd. [AIR 2011 SC 2951],
the appellant is entitled to have his notional income fixed
at Rs. 9,500/- per month. However, considering the
pathetic situation of the claimant, this Court deems it
appropriate to fix the notional income at Rs.10,000/- per
month.
11. Under the other non conventional heads also,
the appellant is entitled for compensation. Under the head
'compensation for loss of amenities in life', this Court feels
that a reasonable amount of enhancement of Rs. 1,50,000/-
is required to be granted to the appellant. Similarly, under
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the heads 'compensation for pain and sufferings', Rs.
25,000/- is increased as compensation.
12. As a result of the above discussions, this appeal
is allowed. The appellant is entitled for enhancement of
compensation as follows:-
Sl Head of claim Amount Amount Enhanced by
No. claimed (in awarded this Court (in
rupees) (in rupees) rupees.)
1 Loss of earnings 2,00,000/- 36,000/- 24,000
(10,000x6=6
0,000-
36,000)
2 Partial loss of earnings ---- Nil
3 Transportation 10,000/- 8,000/-
4 Extra Nourishment 10,000/- 3,500/-
5 Damages to clothings 1,000/- 1,000/-
6 Medical expenses 50,000/- 214/-
7 Bystander expenses 36,000/- 24,900/-
8 Compensation for loss 5,00,000/- 15,000/- 1,35,000
of amenities in life (1,50,000-
15,000)
9 Compensation for 1,00,000/- 50,000/- 25,000
pain and sufferings
10 Compensation for 10,13,000/- 7,25,400/- 8,99,600
permanent disability, [12,500
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disfiguration and loss of (10,000x
earning power 25/100) x12x
13 x 62 x
100/100]
11 Total Rs. Rs. Rs.
20,00,000/ 8,60,514 + 11,28,600/-
- 3500 =
8,64,014/-
Thus, a total amount of Rs.11,28,600/- (Rupees
eleven lakhs twenty eight thousand and six hundred only)
is granted as enhanced compensation. The aforesaid
amount will carry an interest at 8% from the date of the
application, i.e., 19.05.2015, 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.
Sd-
EASWARAN S.
JUDGE
ASH
