Kerala High Court
Majeed Hameed Rawther vs E.O.Mathew (Deleted)* on 10 March, 2025
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MACA NO.2908 OF 2015
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 10TH DAY OF MARCH 2025 / 19TH PHALGUNA, 1946
MACA NO. 2908 OF 2015
AGAINST THE ORDER/JUDGMENT DATED 24.06.2015 IN OPMV NO.321 OF
2009 OF ADDITIONAL DISTRICT COURT-II & IST ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA
APPELLANT/PETITIONER:
MAJEED HAMEED RAWTHER
AGED 49 YEARS
S/O.HAMEED RAWTHER, CHAITHRAM HOUSE, NADUVILE MURI
CHUNAKARA P.O, CHUNAKARA VILLAGE, MAVELIKARA
TALUK.
BY ADVS.
SRI.R.PADMAKUMAR
SRI.P.ARAVIND
RESPONDENTS/RESPONDENTS:
1 E.O.MATHEW (DELETED)*
AGED 48 YEARS, S/O.ITTIYAVIRA UTHUPPAN,
ELAVUMPARAMBIL HOUSE, THIRUVANVANDOOR VILLAGE,
CHENGANNUR TALUK, PIN - 689 109.
2 THE NEW INDIA ASSURANCE CO. LTD.
REPRESENTED BY THE BRANCH MANAGER, KAYAMKULAM
BRANCH KAYAMKULAM, PIN - 690502. *(R1 DELETED
FROM THE PARTY ARRAY VIDE ORDER DTD 18/2/25 IN IA
1/25 IN MACA 2908/15)
BY ADVS.
LAL K.JOSEPH
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MACA NO.2908 OF 2015
2
SURESH SUKUMAR
ANZIL SALIM
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 10.03.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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3
JUDGMENT
The petitioner in O.P.(M.V.) No.321/2009 on the file of the Motor
Accident Claims Tribunal, Mavelikara, 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 Section 166 of the
Motor Vehicles Act, 1988, claiming compensation for the injuries sustained
in a motor vehicle accident that occurred on 04.03.2008. According to the
petitioner, on 04.03.2008 at about 12 p.m., while he was riding motorcycle
bearing reg. no.KL 31-7730, a jeep bearing reg.no.KL 4D 660 driven by the
1st respondent in a rash and negligent manner, hit against the vehicle on which
the petitioner was riding and as a result of the accident, the petitioner
sustained serious injuries.
3. The 1st respondent is the driver cum owner and the 2nd
respondent the insurer of the offending vehicle. According to the petitioner,
the accident occurred due to the negligence of the driver of the offending
vehicle. The quantum of compensation claimed in the O.P. is Rs.16,22,000/-
limited to Rs.16,00,000/-.
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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 the oral testimony of PW1
and documentary evidence Exts.A1 to A11 and X1. 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.4,30,025/- 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.R.Padmakumar, the learned Counsel appearing for the
petitioner/appellant, and Sri.Lal K. Joseph, the learned Standing Counsel for
the 2nd 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
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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
working as driver cum mechanic, earning Rs.54000/- per month, but the
Tribunal fixed his monthly income at Rs.6000/-. The learned counsel for the
insurer would argue that the income fixed by the tribunal is reasonable.
11. The petitioner could not prove his income from the
employment abroad by adducing adducing reliable evidence. However, he has
produced Ext.A10 copy of his passport to convince that he was employed
abroad. According to the petitioner, he came from abroad on 1 st March 2008.
Though from Ext.A10 it can be seen that he was working abroad, there is no
reliable evidence to prove his income. 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 2008 will come to Rs.6500/-.
Ext.A11 is the copy of the driving license of the petitioner which shows that
he had valid driving license also during the time of the accident. Since the
petitioner could not prove his income from the employment abroad, and it is
revealed that he was a driver by profession and he returned from abroad
immediately before the accident, I hold that his notional income can be fixed
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as Rs.9000/-, for the purpose of computing the loss of disability.
12. In the accident the petitioner sustained the following injuries:
• Crush injury right foot
• Fracture on 4th metatarsal
• Fracture on 5th metatarsal
• Lacerated wound sole 15cm x 1.5 cm
13. As per Exhibit X1 disability certificate the petitioner suffered
15% permanent physical disability. It was issued by the medical board. 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. At the time
of arguments, the learned counsel for the petitioner submitted that the
petitioner is present in the Court and requested the court to examine him. On
examination, it is seen that his right foot is still in swollen state, he finds
difficulty in walking and the injuries sustained in the accident have not healed
completely even now. Therefore, the permanent physical disability of the
petitioner is accepted as 15%, as fixed by the Tribunal.
14. On the date of accident, the petitioner was aged 43 years.
Therefore, 25% 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 14,
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.2,83,500/-.
15. Towards loss of earning, the tribunal has awarded Rs.54000/-,
being the income for 9 months @Rs.6000/-. Since the notional income of the
petitioner is re-fixed at Rs.9000/-, towards loss of earning he is entitled to get
a sum of Rs.81000/-(9000 x 9 months)
16. Towards the head 'pain and sufferings', the Tribunal has
awarded Rs.5000/-. Towards 'loss of amenities of life' Rs.15000/- was
awarded and towards 'extra nourishment' Rs.5000/- was awarded. According
to the learned counsel for the petitioner, the compensation awarded on those
heads are on the lower side.
17. The petitioner sustained very serious injuries in the accident
and was treated as inpatient for 11 days and had undergone 3 surgeries and
even now he is suffering from the above ailments and he finds difficult to
walk. Because of the injuries sustained, the percentage of disability suffered
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and the length of treatment undergone by the petitioner, I hold that the
compensation awarded by the Tribunal on the heads 'pain and sufferings',
'loss of amenities of life' and 'extra nourishment' are on the lower side and
hence they are enhanced to Rs.1,50,000/-, Rs.1,00,000/- and Rs.10,000/-
respectively.
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 petitioner/appellant is entitled to get a total
compensation of Rs.7,33,965/-, 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 54000 81000
2 Transport to hospital 2000 2000
3 Extra nourishment 5000 10000
5 Medical expense 103915 103915
6 Bystander expense 2800 2800
7 Pain and suffering 50000 150000
8 Continuing or permanent 196560 283500
disability
9 Loss of amenities 15000 100000
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Total 430025 733965
Enhanced /Reduced Rs. 303940
20. In the result, this Appeal is allowed in part, and Respondent
No.2 is directed to deposit a total sum of Rs.7,33,965/- (Rupees Seven Lakhs
Thirty Three Thousand Nine Hundred and Sixty Five 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, 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
Pvv
