Kerala High Court
Asharaf vs Sakeer on 7 April, 2025
MACA. No.1028/2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 7TH DAY OF APRIL 2025 / 17TH CHAITHRA, 1947
MACA NO. 1028 OF 2017
AGAINST THE AWARD DATED 16.01.2016 IN OPMV NO.635 OF
2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT/PETITIONER:
ASHARAF
AGED 42 YEARS,S/O AYAMMAD,
POOKKOOTTUPURAYIL HOUSE,
AVILORA P.O.KIZHAKOTH, KOZHIKODE
BY ADV SRI.K.MUHAMMED SALAHUDHEEN
RESPONDENTS/RESPONDENTS:
1 SAKEER
S/O MUHAMMED, VATTAPARAMBIL HOUSE,
THACHAMPOYIL P.O.THAMARASSERY,
KOZHIKODE- 673 573
2 USMAN
AGED 27 YEARS, S/O UMMARKUTTY,
THUVAKUNNUMMAL (H), KODUVALLY,
KOZHIKODE- 673 001
3 RELIANCE GENERAL INSURANCE LIMITED
2ND FLOOR, CITADEL ARCADE, R.C. ROAD,
OPP. TAGORE CENTENARY HALL,
KOZHIKODE- 673 001
BY SRI. THAPAS VARMA A., STANDING COUNSEL -R3
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 07.04.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Dated this the 7th day of April, 2025
The petitioner in O.P.(M.V.) No.635/2014 on the file of the
principal Motor Accident Claims Tribunal, Kozhikode is the appellant
herein. (For the purpose of convenience, the parties are hereafter
referred to as per their rank before the Tribunal).
2. The petitioner filed the above O.P. under Sections 140 and 166
of the Motor Vehicles Act, 1988, claiming compensation for the injuries
sustained in a motor vehicle accident that occurred on 4-11-2013.
According to the petitioner, on 4-11-2013 at about 9.30 a.m., while he
was riding pillion on a motorcycle, he was knocked down by a goods
autorickshaw bearing registration No.KL-57E-832 driven by the 2 nd
respondent in a rash and negligent manner. As a result of the accident,
the petitioner sustained serious injuries.
3. The 1st respondent is the owner, the 2nd respondent is the driver
and 3rd respondent is the insurer of the offending vehicle. According to
the petitioner, the accident occurred due to the negligence of the driver
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of the offending vehicle. The quantum of compensation claimed in the
O.P. is Rs.13,74,000/-.
4. The insurance company filed a written statement, admitting the
accident as well as policy, but disputing the negligence on the part of the
driver of the offending vehicle.
5. The evidence in the case consists of documentary evidence
Exts.A1 to A10, and C1. No evidence was adduced by the respondents.
6. After evaluating the evidence on record, the Tribunal found
negligence on the part of the driver of the offending vehicle, awarded a
total compensation of Rs.5,68,000 and directed the insurer to pay the
same.
7. Aggrieved by the quantum of compensation awarded by the
Tribunal, the petitioner preferred this appeal.
8. Now the point that arises for consideration is the following:
Whether the quantum of compensation awarded by
the Tribunal is just and reasonable?
9. Heard Sri. K. Mohammad Salahudhin, the learned Counsel
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appearing for the petitioner/appellant, and Sri. Tapas Varma A., the
learned Standing Counsel for the 3rd respondent.
10. The Point: In this case the accident as well as valid insurance
policy of the offending vehicle are admitted. One of the contentions
raised by the learned counsel for the petitioner is regarding the income
of the petitioner as fixed by the Tribunal. According to him, the
petitioner was a coolie, earning Rs.600/- per day, but the Tribunal fixed
his monthly income at Rs.5,000/-. The learned counsel for the insurer
would argue that the income fixed by the tribunal is reasonable.
11. As per the dictum laid down by the Hon'ble Supreme Court in
the decision in Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Co. Ltd. [2011 (13) SCC 236], the notional income
of a coolie, in the year 2013 will come to Rs.9,000/-. Since the petitioner
could not prove his job or income as claimed in the OP, in the light of a
dictum laid down in the decision of the Hon'ble Supreme Court in
Ramachandrappa (supra) , his notional income is liable to be fixed as
that of a coolie, at Rs.9,000/-.
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12. In the accident the petitioner sustained the following injuries:
"i. Type VI Schatzker right HTN fracture.
ii. Fracture of right tibia
iii. Pain and swelling right knee
iv. Tenderness, deformity right upper leg
v. Tenderness, deformity right upper tibia
vi. ORIF PT CP with 6 H done
vii. Pattelizaion done"
13. The petitioner was treated as inpatient for 22 days. In the
meanwhile he had undergone one surgery also. As per Exhibit C1
disability certificate issued by the medical board, the petitioner suffered
53% permanent physical disability. The Tribunal, has accepted the
permanent physical disability of the petitioner as such and hence, I do
not find any grounds to disbelieve the same. Therefore, the permanent
physical disability of the petitioner is accepted as 53%, as fixed by the
Tribunal.
14. On the date of accident, the petitioner was aged 39 years.
Therefore, 40% of the monthly income is to be added towards future
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prospects, as held in the decision in National Insurance Co. Ltd v.
Pranay Sethi [(2017) 16 SCC 680] and the multiplier to be applied is
15, as held in Sarla Verma v. Delhi Transport Corporation, [(2009) 6
SCC 121]. In the above circumstances, the loss of disability will come to
Rs.12,02,040/-.
15. Towards loss of earning, the tribunal has awarded only
Rs.30,000/- being the income for 6 months @ Rs.5000/-. Considering
the nature of the injuries sustained and the percentage of disability
suffered by the petitioner, the petitioner might have lost income at least
for a period of 9 months. Therefore, towards 'loss of income' the
petitioner is entitled to get a sum of Rs.81,000/- (9000x 9 months).
16. Towards the head 'pain and sufferings', the Tribunal has
awarded Rs.25000/- and towards 'loss of amenities of life' Rs.15,000/-
was awarded. According to the learned counsel for the petitioner, the
compensation awarded on those heads are on the lower side. Towards
'extra nourishment' no compensation was awarded.
17. The petitioner sustained very serious injuries in the accident
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and was treated as inpatient for 22 days. In the meanwhile he had
undergone a surgery also. Because of the injuries sustained, the
percentage of disability suffered and the length of treatment undergone
by the petitioner, I hold that the compensation awarded by the Tribunal
on the heads 'pain and sufferings' and 'loss of amenities of life' are on
the lower side and hence they are enhanced to Rs75,000/-, Rs.50,000/-
and 10,000/- respectively. For the same reasons, towards 'extra
nourishment', Rs. 10,000/- is awarded.
18. No change is required, in the amounts awarded on other
heads, as the compensation awarded on those heads appears to be just
and reasonable.
19. Therefore, the petitioners/appellants are entitled to get a total
compensation of Rs.14,40,000/-, as modified and recalculated above and
given in the table below, for easy reference:
Sl.
No. Head of Claim Amount awarded by Amount Awarded in
Tribunal (in Rs.) Appeal (in Rs.)
1 Loss of earning 30,000/- 81,000/-
2 Transport to hospital 2,000/- 2,000/-
3 Hospitalisation for 22 days 15400 15,400/-
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4 Extra nourishment Nil 10,000/-
5 Medical expenses 3,600/- 3,600/-
6 Pain and suffering 25,000/- 75,000/-
7 Loss of amenities 15,000/- 50,000/-
8 Disability 4,77,000/- 12,02,040/-
Total 5,68,000/- 14,39,040/- rounded to
14,40,000/-
Enhanced Rs.8,72000/-
20. In the result, this Appeal is allowed in part, and Respondent No.3
is directed to deposit a total sum of Rs. 14,40,000/- (Rupees fourteen lakh
forty thousand only), less the amount already deposited, if any, along with
interest at the rate ordered by the Tribunal, from the date of the petition till
deposit/realisation, excluding interest for a period of 334 days, the period of
delay in filing the appeal, with proportionate costs, within a period of two
months from today. (Enhanced compensation will carry interest @8%).
21. On depositing the aforesaid amount, the Tribunal shall disburse the
entire amount to the petitioner, excluding court fee payable, if any, without
delay, as per rules.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
sou.
