Kerala High Court
Muhammed Razeen.P.P vs Mustafa on 20 May, 2025
2025:KER:34590
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TUESDAY, THE 20TH DAY OF MAY 2025/30TH VAISAKHA, 1947
MACA NO. 3836 OF 2022
CRIME NO.2122/2017 OF Kuruppampady Police Station, Ernakulam
AGAINST THE ORDER/JUDGMENT DATED 01.08.2022 IN OPMV NO.719
OF 2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PERUMBAVOOR
APPELLANT/S:
MUHAMMED RAZEEN.P.P., AGED 23 YEARS
S/O HASHIM.K.N., SANA HOUSE, JAYANTHI ROAD,
CHALAD KARA, CHALAD KARA VILLAGE,
KANNUR DISTRICT, PIN - 683552
BY ADV P.P.BIJU
RESPONDENT/S:
1 MUSTAFA, S/O, MAKKAR, 13/268, CHUNDAKADANHOUSE,
PONJASSERYP.O., VENGOLA, PERUMBAVOOR, ERNAKULAM
DISTRICT, PIN - 683547
2 P.C.GOPI, S/O CHELLAPPAN., PATHAZHAKUDAMHOUSE,
ALATTUCHIRAP.O., KODANAD, ERNAKULAM DISTRICT, PIN -
683544
3 M/S NEW INDIA ASSURANCE CO.LTD.,
REPRESENTED BY ITS MANAGER,
ALUVA DIVISION OFFICE, KODUVATHSHOPING COMPLEX,
SUB.JAIL ROAD, ALUVA, PIN - 683101
MACA NO. 3836 OF 2022 2 2025:KER:34590
BY ADV Ganappan P G
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 20.05.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
The petitioner in OP(MV) No.719/2018 on the file of the Motor
Accident Claims Tribunal, Perumbavoor, has preferred this appeal
seeking enhancement of the compensation awarded by the tribunal on
account of the injuries sustained by him in a motor accident that
occurred on 03.11.2017.
2. The case of the petitioner in brief is as follows:-
On 03.11.2017, while the petitioner was riding a motorcycle
bearing registration No.KL-41/F-361 along Kombanad - Vengoor Road,
a tipper lorry bearing registration No.KL-31/A-7493, driven by the 2nd
respondent in a rash and negligent manner, came from the opposite
direction hit on the motorcycle ridden by the petitioner. Due to the
impact of the hit, the petitioner was thrown to the road and sustained
serious injuries.
3. The owner and driver of the tipper lorry were arrayed as
1st and 2nd respondents respectively, whereas the insurer of the said
lorry was arrayed as the 3rd respondent.
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4. The 3rd respondent contested the petition by filing a
written statement, mainly disputing the quantum of compensation
claimed despite admitting the insurance coverage for the vehicle
involved in the accident.
5. During the trial, no oral evidence was adduced from the
side of the petitioner. However, the documents produced by the
petitioner were marked as Exts.A1 to A17. The disability certificate
issued by the Medical Board was marked as Ext.C1. From the side of
the respondents, a copy of the insurance policy was produced and
marked as Ext.B1.
6. After trial, the tribunal came to a conclusion that the
accident occurred solely due to negligence on the part of the 2nd
respondent, the driver of the tipper lorry bearing registration
No.KL-31/A-7493 and being the insurer, the 3rd respondent was held
liable to pay the compensation. The quantum of compensation was
fixed at Rs.15,81,755/- with interest at the rate of 8% per annum from
the date of petition till realisation with proportionate costs. However,
the tribunal permitted the 3rd respondent, Insurance Company, to
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recover the compensation paid from the 1st respondent, the owner of
the vehicle, as it was found that the tipper lorry was operated without
a fitness certificate and the same amounts to a fundamental breach of
policy conditions. This appeal has been filed seeking enhancement of
compensation awarded.
7. Heard Sri. P.P. Biju, the learned counsel appearing for the
appellant, and Sri. P.G. Ganappan, the learned Standing counsel
appearing for the respondent, insurance company.
8. From the rival contentions raised from both sides, 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 appellant would submit that the compensation
awarded by the tribunal under various heads, particularly under the
head of permanent disability, is too meager, and the tribunal awarded
such a meager amount without considering the gravity and the nature
of the injuries sustained by the petitioner in the accident as well as the
hardships and inconveniences met by him. Per contra, the learned
counsel for the 3rd respondent insurance company urged that the
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compensation awarded by the tribunal under each and every head is
reasonable and hence no interference is warranted.
9. From a perusal of the impugned award, it is gatherable
that for the purpose of determining compensation under the head of
permanent disability and loss of earning, the tribunal assessed the
monthly income of the petitioner at Rs.11,000/-. Though in the
petition, it was claimed that the petitioner was a B.Com. student at the
time of the accident, no evidence whatsoever has been produced from
the side of the petitioner to show that he was pursuing B.Com. course
at the time of the accident. Moreover, no documentary evidence has
been produced from the side of the petitioner to prove his educational
qualification. Therefore, I am of the view that in view of the decision
in Ramachandrappa v. Manager, Royal Sundaram Alliance
Insurance Company Ltd. [(2011) 13 SCC 236], the income of the
petitioner has to be determined notionally. It was mainly taking note
of the fact that the petitioner failed to produce any convincing
materials to substantiate his claim regarding his income and
occupation, as well as his educational qualification, the tribunal
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appears to have assessed the income of the petitioner notionally at
Rs.11,000/-, applying the dictum laid down in Ramachandrappa
(cited supra). I find no reason to disagree with the assessment of
income made by the tribunal.
10. In order to prove that the petitioner suffered disability due
to the injuries sustained in the accident, a disability certificate issued
by the Medical Board is seen produced and marked in evidence as
Ext.C1. In the disability certificate, it is mentioned that the petitioner
sustained a disability of 38% due to the injuries sustained in the
accident. Anyhow, without assigning any reason, the tribunal scaled
down the disability to 20%. A perusal of the medical records
produced in this case reveals that the petitioner has sustained the
following injuries in the accident:
● Open fracture right femur
● AC Joint injury right
● Fracture base of 5th metacarpal right hand
● Traumatic brachial plexus palsy
● Lung contusion
Ofcourse, the injuries sustained are grievous in nature. The
injuries sustained and the consequent disability suffered would have a
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profound impact on the earning capacity of the petitioner. Therefore, I
am of the view that the tribunal ought to have acted upon the
disability assessed by a competent medical board instead of scaling
down the disability without assigning any convincing reason.
Therefore, I am of the view that the tribunal ought to have acted upon
the percentage of disability assessed by the medical board.
11. Admittedly, the petitioner was aged 21 at the time of the
accident; therefore, in view of the decision in Sarla Verma v.
Delhi Transport Corporation [2010 (2) KLT 802 (SC)],
the multiplier to be reckoned is 18. If that be so, the petitioner is
entitled to get an amount of Rs.9,02,880/- [11000 x 12 x 18x 38/100].
Already an amount of Rs.4,75,200/-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.4,27,680/- as
additional compensation under the head of permanent disability.
12. Considering the nature of the injuries, I am of the view
that a reasonable amount should be awarded under the head of loss
of amenities as well. The nature of the injuries suggests that the
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petitioner would have been prevented from doing any work or earning
any income for at least 9 months. Anyhow, the tribunal awarded
compensation for loss of earning only for a period of six months. The
same is certainly on the lower side. I am of the view that the
petitioner is entitled to get an amount of Rs.99,000/- [11000x9] as
compensation under the head of loss of earning, entitling the
petitioner to get an amount of Rs.33,000/- [99000-66000] as
additional compensation under the said head. The amount awarded
by the tribunal under other various heads appears to be reasonable
and hence warrants no interference.
In the light of the aforesaid observations and findings, the
appeal is allowed by enhancing the compensation by a further amount
of Rs.4,60,680/- (Rupees four lakhs sixty thousand six hundred and
eighty only) [4,27,680 + 33,000] 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. 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
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from the date of receipt of a certified copy of the judgment. After
effecting payment, the 3rd respondent, insurance company is
permitted to recover the amount paid as compensation from the 1st
respondent, the owner of the tipper lorry, as there is a violation of
policy conditions.
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd
