Partly allowed

Karim Kodumayil v. E.Salim

Kerala HC7 Feb 2018MACA/2180/2013

Case brief

AI extract

What is this about?

This Court allowed the appeal in part, enhancing the compensation awarded by the Motor Accidents Claims Tribunal. The Court fixed new monthly income and disability percentages, awarding an additional Rs.59,080 along with specific enhancements for loss of earnings and amenities.

What did the court decide?

Appellant entitled to additional Rs.59,080 as compensation to be deposited by insurance company with 7% interest within three months from judgment receipt.

Karim Kodumayil Vs E.Salim — Motor Accident Claims | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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WEDNESDAY, THE 7TH DAY OF FEBRUARY 2018 / 18TH MAGHA, 1939

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MACA.No. 2180 of 2013

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(AGAINST THE AWARD IN OPMV 753/2009 of MACT VADAKARA, DATED 26-03-2013)

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APPELLANT/PETITIONER:

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KARIM KODUMAYIL S/O.MOIDEEN, RESIDING AT KODUMAYIL HOUSE, MUTHUVANNACHA P.O., KUTTIYADI VIA, KOZHIKODE.

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BY ADVS.SRI.AVM.SALAHUDDEEN SMT.EMIL STANLEY

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RESPONDENTS/RESPONDENTS:

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1. E.SALIM,

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AGE AND FATHER'S NAME NOT KNOWN, RESIDING AT EDATHIL HOUSE, FLORICAN HILL ROAD, KARAPARAMBA P.O., KOZHIKODE-673 010.

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2. SIRAJ, AGED 26 YEARS,

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S/O.POCKER, RESIDING AT MEETHALE KUNNATHUMMAL,

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NADUKKANDIYIL HOUSE, KUTTIYADI P.O., KOZHIKODE-673 012.

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3. NEW INDIA ASSURANCE COMPANY LTD.,

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DIVISIONAL OFFICE, SILVER PLAZA BUILDING, I.G.ROAD,

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KOZHIKODE-673 001.

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R3 BY ADVS. SRI.A.A.ZIYAD RAHMAN SRI. LAL K.JOSEPH

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01.02.2018 AND THE

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COURT ON 07-02-2018 DELIVERED THE FOLLOWING:

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R.NARAYANA PISHARADI, J

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--------- -------------------------------

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M.A.C.A. No.2180 of 2013

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Dated this the 7^th day of February, 2018

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JUDGMENT

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This appeal is filed by the claimant in O.P.(MV)No.753

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of 2009 on the file of the Motor Accidents Claims Tribunal,

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Vatakara claiming enhancement of compensation awarded by the Tribunal.

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The appellant is the victim of a motor vehicle accident. On 26.01.2009, at about 08.30 hours, while the appellant was travelling in an autorickshaw, a bus which came from the opposite direction, hit on the autorickshaw. The appellant sustained serious injuries in the accident. He filed O.P.(MV)No.753 of 2009 in the Tribunal against the owner, driver and insurer of the bus claiming a total amount of Rs.3,00,000/- as compensation. The Tribunal found that

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M.A.C.A. No.2180 of 2013

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the accident occurred solely due to the negligence of the driver of the bus and that the third respondent insurance company is liable to pay the amount of compensation to the appellant. The Tribunal awarded a total amount of Rs.1,66,506/- as compensation to the appellant. The appeal is filed seeking enhancement of compensation.

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The amount of compensation claimed by the appellant under each head and awarded by the Tribunal can be seen from the following table contained in the judgment of the Tribunal:

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Sl.No.	Head of Claim	Amount claimed (Rs.)	Amount Awarded (Rs.)	Basis-vital details in a nutshell
1	Loss of earning	15000	12000
2	Medical treatment and expenses	10000	19226	Bills produced as Ext.A6 series for Rs.19226/-
3	Transport to hospital	500	1500
4	Bystander expenses	…..	2800	Rs.200x14 days IP treatment in MCH Kozhikode.
5	Damage to clothing and articles	1000	500
6	Extra nourishment	2500	1400
7	Pain and suffering	15000	15000
8	Compensation for loss of earning power	2,85,00	1,06,080	4000x12x17x13/10

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M.A.C.A. No.2180 of 2013

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		0
9	Compensation for loss of earning power	10000	…...
10	Loss of amenities and enjoyment in life	11000	8000
	Total claim limited to	350000	166506
	Rs.3,00,000/-

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At the time of hearing, the learned counsel for the third respondent insurance company has not disputed the liability of the company to pay the amount of compensation to the appellant.

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The learned counsel for the appellant contended that the monthly income of the appellant taken by the Tribunal as Rs.4,000/- is low and that the Tribunal should have taken the monthly income of the appellant atleast as Rs.4,500/-. The learned counsel for the appellant would also contend that the Medical Board has certified that the appellant sustained permanent disability of 39.24%, but the Tribunal has assessed the compensation taking the disability sustained by the appellant only as 13% and it is not proper. The learned counsel for the appellant would

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M.A.C.A. No.2180 of 2013

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further submit that the amount awarded by the Tribunal towards loss of amenities is also very low. Per contra, the learned counsel for the third respondent insurance company has submitted that the compensation awarded by the Tribunal is just and reasonable and no enhancement can be allowed.

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The plea of the appellant before the Tribunal was that he was working as a foreman in a gulf country and he was getting income of Rs.60,000/- per month. He did not adduce any oral or documentary evidence to prove his job or income. Therefore, the Tribunal was justified in computing the amount of compensation on the basis of notional income of the appellant.

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The appellant was aged 35 years at the time of the accident. Learned counsel for the appellant contended that the accident occurred in the year 2009 and during that period, the appellant would have earned atleast Rs.4,500/- per month even as a coolie worker. Learned

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M.A.C.A. No.2180 of 2013

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counsel relied upon the decision of the Apex Court in Ramachandrappa v. Manager, Royal Sundaram Aliance Insurance Company Limited (AIR 2011 SC 2951) in support of this contention. On a perusal of this decision, it is seen that the claimant in that case was aged about 35 years and his monthly income as a coolie was taken as Rs.4,500/- per month. The accident in that case had occurred in the year 2004. Therefore, on the basis of this decision, I find that the monthly income of the appellant can be taken as Rs.4,500/- for the purpose of computation of compensation.

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The appellant had sustained the following injuries in the accident : (1) Anterior Cruciate Ligament (ACL) with lateral meniscus tear (2) Truncation of posterior horn of the lateral meniscus with medial displacement of torn fragment (suspected of bucket handle tear) (3) Mid portion of patellar tendon bulky and hyper intense (4) Knee joint effusion.

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M.A.C.A. No.2180 of 2013

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After examination of the appellant, the Medical

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Board has certified that he has sustained permanent disability of 39.24%. The Tribunal found that the percentage of disability certified by the Medical Board is with regard to one of the limbs of the appellant and not with regard to the whole body. The Tribunal found that the whole body disability of the appellant can be taken as 13%. The Tribunal was right in holding that the percentage of disability of the appellant assessed by the Medical Board is with regard to one of the limbs and that the whole body disability has to be reduced. The extent of permanent disability of one of the lower limbs, as certified by the Medical Board, cannot be considered to be the functional disability of the whole body nor could it be assumed to result in a corresponding extent of loss of earning capacity. The appellant was aged 35 years at the time of the accident. Partial disability of one of the lower limbs would not have prevented him from carrying on his

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M.A.C.A. No.2180 of 2013

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avocation as a coolie or foreman, though it might impede in his smooth functioning. Considering the age of the appellant at the time of the accident and also considering the fact that the disability of one of the lower limbs suffered by him would have affected his earning capacity as a coolie, percentage of loss of earning capacity can be taken as 17%. The learned counsel for the appellant or the third respondent insurance company has not raised any dispute with regard to adoption of 17 as the multiplier for assessment of compensation for disability. When the percentage of loss of earning capacity is taken as 17%, the amount of compensation payable under this head would come to Rs.1,56,060/- (4500x12x17x17/100). The Tribunal has already awarded an amount of Rs.1,06,080/under this head. Therefore, the claimant is entitled to get an additional amount of Rs.49,980/- under this head.

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The Tribunal has awarded an amount of

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M.A.C.A. No.2180 of 2013

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Rs.12,000/- as compensation for loss of earning for a period of three months at the rate of Rs.4,000/-. The appellant was in hospital for a period of 14 days. Considering this aspect and considering the nature of the injuries sustained by him, I find that loss of earning can be awarded for a period of four months at the rate of Rs.4,500/- per month. Therefore, the appellant is entitled to get an additional amount of Rs.6,000/- under this head. The Tribunal has awarded an amount of Rs.1,400/- towards expenses for extra nourishment. It is proper to enhance the amount to Rs.2,500/- as claimed by the appellant. Therefore, the appellant is entitled to get an additional amount of Rs.1,100/- under this head. The Tribunal has awarded an amount of Rs.8,000/- as compensation for loss of amenities against the claim of Rs.11,000/-. It is proper to award an amount of Rs.10,000/- under this head. Therefore, the appellant is entitled to get an additional amount of Rs.2,000/- under

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M.A.C.A. No.2180 of 2013

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this head.

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Thus, the appellant is entitled to get a total amount of Rs.59,080/- as additional compensation (49,980+6,000+ 1,100+2,000).

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In the result, the appeal is allowed in part. The appellant is entitled to get an additional amount of Rs.59,080/- as compensation. The third respondent insurance company shall deposit this amount in the Tribunal with interest at the rate of 7% per annum from the date of the claim petition till the date of deposit within a period of three months from the date of receipt of a copy of this judgment. No costs in the appeal.

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Sd/-

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R.NARAYANA PISHARADI, J

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//True Copy//

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P.A. To Judge

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Karim Kodumayil v. E.Salim

Case brief

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Karim Kodumayil v. E.Salim

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