Kerala High Court
P.Mammu vs Babu on 16 January, 2025
2025:KER:3908
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
THURSDAY, THE 16TH DAY OF JANUARY 2025 / 26TH POUSHA, 1946
MACA NO. 120 OF 2014
AGAINST THE AWARD DATED 20.03.2013 IN OPMV NO.1678 OF 2010 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT/PETITIONER :-
P.MAMMU, S/O MOIDEEN, AGED 51 YEARS
RESIDING AT PUTHALATH HOUSE
P.O PADANILAM (VIA),
KUNNAMANGALAM, KOZHIKODE.
BY ADVS.
SRI.V.S.CHANDRASEKHARAN
SRI.M.V.DAS
SMT.LEKSHMI SWAMINATHAN
RESPONDENTS/RESPONDENTS :-
1 BABU, AGED 51 YEARS
S/O.MADHAVAN, RESIDING AT ONASSERIYIL HOUSE,
THORUNELLY, WYNAD - 673 121.
2 MUHAMMED SHAFI, AGED 22 YEARS
S/O. ABOO K.T., RESIDING AT PARAMMAL HOUSE, P.O,
PADANILAM, KUNNAMANGALAM (VIA), KOZHIKODE.
3 THE NEW INDIA ASSURANCE COMPANY LIMITED
DOOR NO.5/86, 2ND FLOOR, FAIR MONT BUILDING,
ERAHIPALAM, WYNAD ROAD, KOZHIKODE.
BY ADV SAIGI JACOB PALATTY
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 16.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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2
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JUDGMENT
The petitioner in O.P.(MV) No.1678/2010 on the file of the Principal
Motor Accidents Claims Tribunal, Kozhikode, is the appellant. The
respondents in the O.P. are the respondents herein. The petitioner filed the
above O.P. under Section 166 of the Motor Vehicles Act, 1988, claiming
compensation for the injuries sustained in a motor vehicle accident that
occurred on 06.08.2010.
2. According to the petitioner, on 06.08.2010 at about 08.00 pm,
while he was riding a motorcycle along along the Kunnamangalam -
Pathimangalam road, he was hit down by another motorcycle ridden by the 2 nd
respondent in a rash and negligent manner. As a result of which, he fell down
and sustained severe injuries. The 1st respondent is the RC owner and the 3rd
respondent is the insurer of the offending vehicle.
3. Before the Tribunal, the respondents 1 and 2 remained ex-parte.
The 3rd respondent filed a written statement admitting the accident and valid
policy. It was further contended that the accident occurred due to the
negligence of the petitioner.
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4. The evidence in the case consists of the documentary evidence
Exts.A1 to A6. No evidence was adduced by the respondents.
5. After evaluating the evidence on record, the Tribunal awarded a
total compensation of Rs.1,16,989/-.
6. Being dissatisfied with the quantum of compensation awarded by
the Tribunal, the petitioner preferred this appeal.
7. Now the point that arises for consideration is the following:
Whether the quantum of compensation awarded by the Tribunal is just
and reasonable.
8. Heard Sri.V.S.Chandrasekharan, the learned Counsel appearing
for the appellant, and Sri.Saigi Jacob Palatty, the learned Standing Counsel for
the insurance company.
9. One of the contentions raised by the learned counsel for the
petitioner is that the notional income of the petitioner fixed by the Tribunal at
Rs.3,500/- is on the lower side. Another contention raised by him is that,
though as per Ext.A6 - disability certificate, the disability of the petitioner was
shown as 26%, the Tribunal has scaled down the same to 10%.
10. On the other hand, the learned counsel for the 3rd respondent
would argue that Ext.A6 was issued by a private doctor and that the doctor
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who issued the same as not examined. Therefore, the counsel would contend
that the percentage of disability fixed by the Tribunal is to be accepted.
11. Though the petitioner claims that he is a driver by profession, he
could not prove the same by adducing evidence. Therefore, by applying the
dictum laid down by the Supreme Court in Ramachandrappa v. Royal
Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236], the
notional income of the petitioner is liable to be fixed at Rs.7,500/-.
12. Ext.A6 is disability certificate issued by the Associate Professor,
Ortho, Medical College, Calicut. As per Ext.A4 reference card, the petitioner
sustained fracture of shaft of femur (left). He was treated as inpatient for 6
days. It is true that the doctor who issued Ext.A6 was not examined before the
Tribunal. However, the law is settled that the if the Tribunal is not satisfied
with the disability certificate produced by the petitioner, the remedy available
is to refer the petitioner to a Medical Board and not to scale down the
percentage of disability assessed by the doctor (See Manikantan G. v.
K.Janardhanan Nair [2021 (5) KHC 305]. In the above circumstances, I am
inclined to accept the percentage of disability of the petitioner as shown in
Ext.A6, i.e., 26%.
13. Since the petitioner was aged 51 years on the date of the
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accident, 10% of the income is to be added towards future prospects, and the
multiplier to be applied is 11. Therefore, the compensation for loss of
disability will come to Rs.2,83,140/-.
14. Towards loss of earnings, the Tribunal has awarded Rs.7,000/
alone, being the income for a period of two months. Considering the nature of
injuries sustained by the petitioner, and percentage of disability suffered by
him, I hold that the petitioner is entitled to get an income for a period of three
months, towards loss of earnings. Therefore, towards loss of earnings, he is
entitled to get a sum of Rs.22,500/- (7,500x3).
15. Towards pain and suffering, the Tribunal has awarded
Rs.15,000/- and towards loss of amenities only Rs.5,000/- was awarded. The
petitioner was treated as inpatient for 6 days. Considering the nature of injuries
sustained by the petitioner, and percentage of disability suffered by him, I hold
that the compensation awarded on the heads, pain and suffering and loss of
amenities are on the lesser side, and hence the same are enhanced to
Rs.40,000/- and Rs.20,000/- respectively.
16. Towards extra nourishment, the Tribunal has awarded only
Rs.1,000/-.The petitioner was treated as inpatient for 11 days. Considering the
nature of injuries sustained by the petitioner, and percentage of disability
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suffered by him, I hold that the compensation awarded on the head extra
nourishment is on the lesser side, and hence the same is enhanced to
Rs.5,000/-.
17. No change is required, in the amounts awarded on other heads,
as the compensation awarded on those heads appears to be just and reasonable.
18. Therefore, the petitioner/appellant is entitled to get a total
compensation of Rs.4,13,429/-, as modified and recalculated above and given
in the table below, for easy reference.
Sl. No. Head of claim Amount awarded by The amount given
the Tribunal(Rs) in appeal (Rs.)
1 Loss of earnings 7,000 22,500
3 Extra nourishment 1000 5000
articles
5 Treatment expenses 40589 40589
6 Bystander expenses 1200 1200
7 Pain and suffering 15000 40,000
8 Loss of future earning power 46,200 2,83,140
9 Loss of amenities 5000 20000
Total 1,16,989 4,13,429
Amount enhanced 2,96,440
19. In the result, this Appeal is allowed in part, and the 3 rd
respondent is directed to deposit a total compensation of Rs.4,13,429- (Rupees
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Four Lakhs Thirteen Thousand Four Hundred and Twenty Nine Only), less the
amount already deposited, if any, along with interest @8% per annum, from
the date of the petition till realisation, with proportionate costs, within a period
of two months from today.
20. 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
SMA
