Kerala High Court
Abdulla vs Maneeshkumar on 21 March, 2025
MACA NO. 557 OF 2018 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 7TH DAY OF MARCH 2025 / 16TH PHALGUNA, 1946
MACA NO. 557 OF 2018
AGAINST THE ORDER/JUDGMENT DATED 15.02.2017 IN OPMV
NO.1177 OF 2008 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT
-IV, THRISSUR / III ADDITIONAL MACT, THRISSUR
APPELLANT/PETITIONER:
ABDULLA
AGED 59 YEARS
S/O. KUNJUMUHAMMED, K.J.ESTATE, CHETTALI,
KALANKAD, GUDALLUR P.O., KOORG, KARNATAKA STATE.
BY ADVS.
SRI.SANTHOSH P.PODUVAL
SMT.S.R.NEETHU RAJ
SMT.R.RAJITHA
SMT.RASHIDA CHEMMENAMPALLY
RESPONDENT/RESPONDENTS:
1 MANEESHKUMAR
S/O. KUNJAN, VALAPPILPURAKKAL HOUSE, ALAMKODE,
P.O.OTHALUR, MALAPPURAM DISTRICT - 679 591.
2 THE NEW INDIA ASSURANCE CO.LTD.
ORISON COMPLEX, WADAKKANCHERY ROAD, KUNNAMKULAM,
THRISSUR - 680 503.
BY ADVS.
DILIP J. AKKARA
GEORGE CHERIAN (SR.)
LATHA SUSAN CHERIAN
K.S.SANTHI
MACA NO. 557 OF 2018 2
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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 07.03.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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JUDGMENT
The petitioner in O.P.(M.V.) No. 1177 of 2008 on the file of the
Additional Motor Accidents Claims Tribunal IV, Thrissur has
preferred this appeal seeking enhancement of compensation
awarded by the Tribunal on account of the injuries sustained by him
in a motor accident occurred on 14.05.2008.
2. The case of the petitioner in brief is as follows:-
On 14.05.2008, at around 8.30 p.m., while the petitioner was
traveling in an auorickshaw bearing registration No. KL-8-AB-8352
from Changaramkulam to Srayikadavu and when reached near
Othalloor, a motorcycle bearing registration No.KL-8-Q-4655 came
from the opposite direction ridden by the 1st respondent in a rash
and negligent manner hit on the autorikshaw in which the
petitioner was travelling. Due to the impact of the hit, the
petitioner sustained severe injuries.
3. The owner cum rider of the motorcycle involved in the
accident was arrayed as the 1st respondent, whereas, the insurer of
the said motorcycle was arrayed as the 2nd respondent. The 2nd
respondent contested the petition by filing a written statement
mainly disputing the quantum of compensation claimed, despite
admitting insurance coverage for the motorcycle involved in the
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accident. During trial, from the side of the petitioner; one witness
was examined as PW1. Documents produced by the petitioner
were marked as Exts. A1 to A13(a). From the side of the
respondents, Exts.B1 to B2 were marked.
4. After trial, the Tribunal came to a conclusion that the
accident occurred solely due to the rash and negligent riding of the
motorcycle bearing registration No. KL-8-A-4655 by the 1st
respondent and being the insurer, the 2nd respondent was held
liable to pay the compensation. The compensation was quantified
at Rs. 1,06,000/- with interest at the rate of 9% per annum from
the date of petition till realisation and proportionate costs. Seeking
enhancement of the said compensation awarded, the petitioner has
come up with this appeal.
5. I heard Shri.Santhosh P. Poduval, the learned counsel
appearing for petitioner, Sri.Dilip J. Akkara, the learned counsel
for the 1st respondent and Smt.Latha Susan Cherian, the learned
counsel for the 2nd respondent and also perused the impugned
award as well as the available materials.
6. From the rival contentions raised, it is gatherable that
the main dispute that revolves around this appeal is with respect to
the quantum of compensation awarded. The learned counsel for the
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petitioner would submit that the compensation awarded by the
Tribunal under various heads is too meager and not in consonance
with the gravity and nature of the injuries sustained by the
petitioner in the accident and not sufficient to compensate the
consequent hardships and inconveniences caused to him. Per
contra, the learned counsel for the respondents would submit that
the compensation awarded by the Tribunal under all the heads is
reasonable and hence, warrants no interference.
7. From a perusal of the impugned award, it is apparent
that there is some merit in the contention of the learned counsel
for the petitioner that the compensation awarded by the Tribunal
under various heads are on the lower side. For the purpose of
determining the compensation under the head of permanent
disability and loss of earnings, the Tribunal assessed the monthly
income of the petitioner at Rs. 3,000/-. Though in the petition, it
was claimed that the petitioner was a Coolie worker, earning a
monthly income of Rs. 6,000/-, no documents were produced from
the side of the petitioner to substantiate his contention regarding
his occupation and income. Nonetheless, it is not in dispute that
the accident occurred in the year 2008. Therefore, in view of the
principles laid down in Ramachandrappa v. Manager, Royal
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Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC
236], the Tribunal ought to have assessed the monthly income of
the petitioner at Rs.6,500/-.
8. Though in the petition, it is claimed that the petitioner
was aged only 50 years at the time of the accident, the medical
records and other connected documents adduced in evidence
reveals that the petitioner was aged 70 at the time of the accident.
As the petitioner was aged 70 at the time of the accident, in view
of the decision in Sarla Verma v. Delhi Transport Corporation
[2010 (2) KLT 802 (SC)], the multiplier to be reckoned is 5.
Ext.C1 disability certificate shows that the petitioner was affected
with a disability of 35% due to the injuries sustained in the
accident. I do agree that the said disability certificate is not a one
issued by a competent medical board but by a single doctor.
However, it cannot be undermined that in order to prove the
disability, the doctor who issued the certificate is examined as a
witness in this case and on examination before court, he sticks on
the stand that the petitioner suffered a disability of 35% due to the
injuries sustained in the accident. However, the Tribunal scaled
down the disability to 10% without assigning any convincing
reason. While considering the question whether there is any
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justification for such a scaling down of the percentage of disability
assessed by the doctor, it is to be noted that the petitioner had
sustained the following injuries in the accident;
a) Lacerated wound on right leg from knee to ankle;
b)Type III A compound fracture both bones of right leg;
c) Sub-trochanteric fracture left leg and fracture of ilium
left and fracture of superior and anterior public rami;
d)Treated by wound debridement, external fixation, ORIF
with DHS left hip along with other supportive measures.
Further, it is pertinent to note that the petitioner was 70 years
old at the time of the accident. Given his advanced age, it is
unlikely that he would have made a full recovery from the fractures
and injuries sustained in the accident. Therefore, I am of the view
that the injuries sustained by the petitioner in the accident will
inevitably result in permanent disability. Anyhow, I am also
concurring with the finding of the Tribunal that the disability of 35%
assessed by a single doctor is on the higher side. A conjoint
reading of the injury sustained by the petitioner, the nature of the
treatment underwent by him, and the evidence of PW1, the doctor,
persuade me to enter into a conclusion that the disability of 22%
taken by the Tribunal is reasonable. Resultantly, the petitioner is
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entitled to get an amount of Rs. 85,800/- [Rs. 6,500/-x 12 x 5 x
22/100] as compensation under the head of permanent disability.
Already an amount of Rs. 18,000/- has been awarded by the
Tribunal under the head of permanent disability. After deducting the
said amount, the petitioner is entitled to get an amount of
Rs.67,800/- (Rupees Sixty Seven Thousand Eight Hundred only) as
additional compensation under the said head.
9. Consequent to the revision in the monthly income, a
corresponding enhancement must be made to the compensation
awarded under the head of loss of earnings also. The Tribunal took
three months period loss of earnings. However, I am of the view
that the period taken by the Tribunal is also on the lower side. The
nature of the injuries sustained by the petitioner suggests that he
would have been prevented from doing any work or earning any
income at least for five months. Therefore, the petitioner is entitled
to get an amount of Rs. 32,500/- (Rs. 6,500/- x 5) under the head
of loss of earnings. After deducting the already awarded amount of
Rs.9,000/-, under the head of loss of earnings, the petitioner is
entitled to get an amount of Rs.23,500/- (Rupees Twenty Three
Thousand Five Hundred only) as additional compensation under the
said head.
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10. The nature of the injuries sustained and the treatment
procedures underwent by the petitioner shows that the
compensation awarded under the head of pain and sufferings is
also on the lower side. Only a meager amount of Rs. 20,000/- is
seen awarded by the Tribunal under the said head. The petitioner
had undergone twenty days of inpatient treatment in connection
with the accident. As part of the treatment procedure, K Wire
fixation was done and the implant was removed subsequently. All
these aspects should not have been overlooked by the Tribunal
while awarding compensation under the head of pain and
sufferings. Considering the pain and suffering endured by the
petitioner due to the injuries sustained in the accident as well as
the treatment procedures undergone by him, I am of the view that
an amount of Rs. 65,000/- has to be awarded under the head of
pain and suffering. Already an amount of Rs. 20,000/- is seen
awarded by the Tribunal under the head of pain and sufferings.
After deducting the said amount, the petitioner is entitled to an
additional compensation of Rs.45,000/- (Rupees Forty Five
Thousand only) under the head of pain and sufferings.
11. The compensation awarded by the Tribunal under other
heads appears to be reasonable and justifiable and hence, no
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interference is warranted. Hence, an amount of Rs. 1,36,300/-
(Rs. 67,800/- + Rs.23,500/- + Rs.45,000/-) has to be added
towards the total compensation.
In the light of the aforesaid observations and findings, the
appeal is allowed by enhancing the compensation by a further
amount of Rs. 1,36,300/- (Rupees One Thirty-Six Thousand Three
Hundred only) with interest at the rate of 7.5% per annum on the
enhanced compensation from the date of claim petition till the date
of deposit, after deducting interest for a period of 238 days, i.e.,
the period of delay in preferring this appeal and as directed by this
Court on 15.10.2018 in C.M. Appln. No.676/2018. The respondent
insurance company is ordered to deposit the enhanced
compensation with interest before the Tribunal with proportionate
costs within a period of three months from the date of receipt of a
certified copy of the judgment.
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
