Allowed

Abdul Basith v. Sainul Abideen

Kerala HC10 Sept 2021MACA/1859/2011

Case brief

AI extract

What is this about?

The High Court allowed this appeal to enhance compensation awarded for motor accident injuries. The Court held the original notional monthly income of Rs.2,000 was unjustified for a 17-year-old minor and fixed it at Rs.5,500, thereby increasing compensation for permanent disability and bystander expenses.

What did the court decide?

Awarded additional compensation of Rs.2,89,230/- including enhanced permanent disability and bystander expenses to be deposited by the third respondent with 9% interest.

Abdul Basith Vs Sainul Abideen — Motor Accident Claims | Kerala HC (2021)

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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 T.R.RAVI

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FRIDAY, THE 10^TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943

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MACA NO. 1859 OF 2011

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AGAINST THE AWARD IN OPMV 418/2010 OF II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE

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APPELLANT/PETITIONER IN OP(MV):

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ABDUL BASITH (MINOR) REP.BY HIS NEXT FRIEND AND FATHER MUHAMMED KOYA, S/O.ABDULLA,, KODI PARAMBATHU HOUSE, P.O.POOVATTUPARAMBU,, KOZHIKODE DISTRICT.

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BY ADVS. SRI.AVM.SALAHUDDEEN SMT.P.Y.SHEHEERA

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RESPONDENTS/RESPONDENTS IN OP(MV):

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1 SAINUL ABIDEEN PERAPPURATH VADAKKEYIL HOUSE, MUTHIRIPPARAMBA,, P.O.VALLUVAMBRAM, MALAPPURAM DISTRICT.673 651.

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*2 SHAFI.V.S. S/O.KUNHIMOIDEEN VILANGALIL HOUSE, (PO)PUTHOOR,, MALAPPURAM DISTRICT.673 636. [DELETED] (R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DT.25.3.2019 IN IA.1/19 IN MACA 1859/11.) 3 THE NEW INDIA ASSURANCE CO.LTD. MALAPPURAM DISTRICT, CATHOLIC CENTRE, UP HILL,, MALAPPURAM DISTRICT.676 505.

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R3 BY ADV LAL K JOSEPH ADV. SRI SURESH KUMAR R.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.09.2021, THE COURT ON 10.09.2021 DELIVERED THE FOLLOWING:

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M.A.C.A.No.1859 of 2011

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T.R.RAVI, J.

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M.A.C.A.No.1859 of 2011

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Dated this the 10^th day of September, 2021

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J U D G M E N T

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The appellant, who was a minor aged 17 years at the time of an accident which took place on 08.09.2009, has filed this appeal seeking enhancement of the compensation that has been granted by the 2^nd Additional Motor Accident Claims Tribunal, Kozhikode.

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Heard Sri A.V.M.Salahudeen learned counsel appearing for the appellant and Sri Suresh Kumar, learned counsel for the 3^rd respondent.

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On 08.09.2009, while the appellant was travelling in

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a bus driven by the 2^nd respondent, it met with an accident involving an autorickshaw. The appellant suffered serious injuries and was taken to Almas Hospital, Kottakkal from where

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he was referred to Medical College Hospital,Kozhikode. He was

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M.A.C.A.No.1859 of 2011

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hospitalised for 57 days. The Medical Board found that the appellant had 38% disability. The Tribunal fixed the notional income at Rs.2,000/- and arrived at the compensation for permanent disability.

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The contention of the appellant is that the amount of Rs.2,000/- taken as monthly income is not justified. The accident happened in 2009, which is five years after the accident that was considered in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd., reported in [AIR 2011 SC 2951] by the Hon'ble Supreme Court wherein the notional income of a coolie during 2004 was fixed as Rs.4,500/-. Taking into account the fact that the appellant was aged 17 years at the time of accident, the notional income should have been fixed at least at Rs.5,500/per month; is the contention. Reference is made to the decision of the Hon'ble Supreme Court in Master Mallikarjun

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v Divisional Manager, The National Insurance Co.Ltd. and

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Anr. reported in [2013 KHC 4670] to submit that the Hon'ble

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M.A.C.A.No.1859 of 2011

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Supreme Court had in that judgment laid down a structured formula whereby Rs.4 lakhs was payable to a person who has suffered between 30% to 50% disability, unless there are exceptional circumstances to take a different yardstick. In the judgment in ICICI Lombard General Insurance Co. Ltd. v. Amith Varghese reported in [2017 (2) KLT 8] , a Division Bench of this Court noticed the observation of the Hon'ble Supreme Court that in exceptional circumstances a different yardstick can be adopted and went ahead to decide the case on different yardsticks, since it was warranted in the facts of the case. The counsel for the appellant submitted that in the case on hand, the petitioner was 17 years at the time of the accident unlike the case that was considered in Mallikarjun (supra) where the minor was aged 12 years and could not have aspired for any job at least for 6 years. He has suffered fracture of the ulna (L), forearm, lacerated wound over left elbow region and compound injury at the left elbow region. He was initially admitted on 08.09.2009 and discharged on 27.10.2009 after

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M.A.C.A.No.1859 of 2011

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surgery which was conducted on 15.10.2009. He was again admitted on 09.02.2010 and discharged on 16.02.2010. The Tribunal found that the petitioner was 17 years and a nonearning member and therefore Rs.2,000/- can be taken as monthly income and followed the multiplier of '18'.

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On considering the facts of the case, I am of the opinion that there is nothing wrong in following the multipliermultiplicand method in the case. The insurer has also not challenged the adoption of this method. At the same time, I am of opinion that Rs.2,000/- which is taken as notional income was not warranted. If the appellant was aged above 18 years, going by the dictum in Ramachandrappa (supra) , the notional income would have been taken as Rs.7,000/-. Having regard to the fact that he was only 17 years at the time of accident, I am of the opinion that the notional income ought to have been taken as Rs.5,500/- per month. Necessary changes will have to be made in the compensation payable under the head permanent disability. So also, even though the appellant

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M.A.C.A.No.1859 of 2011

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was hospitalised for 57 days, bystander's expense has been granted only for 44 days. The amount granted for bystander's expenses is also liable to be enhanced. In the result, the amount granted under the head “bystander's expenses” is fixed at Rs.8,550/- (150x57), granting an additional sum of Rs.1950/- . The amount payable under the head “permanent disability” is fixed at Rs.4,51,440/- (5500x12x18x38/100). After deducting the amount already granted, the appellant will be entitled to get an additional amount of Rs.2,87,280/- under the head permanent disability.

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In the result, the appellant will be entitled to an additional amount of Rs.2,89,230/- (Rupees Two Lakhs Eighty Nine Thousand Two Hundred and Thirty only) towards enhanced compensation. The 3^rd respondent shall deposit the enhanced compensation awarded by this Court along with interest at the rate of 9% per annum from the date of the petition (27.02.2010) till the date of payment, within two months from the date of receipt of a certified copy of this

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M.A.C.A.No.1859 of 2011

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judgment, after deducting any amount to which the appellant is liable towards balance court fee and legal benefit fund. The

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disbursement of the compensation to the appellant shall be in accordance with law.

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The appeal is disposed of as above.

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Sd/-