Allowed

Faisal E.P. v. Farooque E.P.

Kerala HC3 Mar 2023MACA/2084/2012

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a Motor Accidents Claims Tribunal award, holding the petitioner did not abandon his Bahrain job due to the accident. The court increased the monthly income basis for loss of earning to ₹15,000 and granted additional compensation for permanent disability, pain, and loss of amenities, modifying the total award.

What did the court decide?

Petitioner granted additional compensation of ₹2,11,200 with interest at 7.5% per annum payable by the insurer.

Faisal E.P. Vs Farooque E.P. — Motor Accident Claims | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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FRIDAY, THE 3RD DAY OF MARCH 2023 / 12TH PHALGUNA, 1944

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MACA NO. 2084 OF 2012

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AGAINST THE AWARD DATED 17.03.2012 IN O.P(M.V) NO.442/2009 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR

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APPELLANT/PETITIONER:

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FAISAL E.P.,
S/O. MUHAMMED, ENGAPADALIL HOUSE, PONMUNDAM P.O.,
VAILATHUR, TIRUR, MALAPPURAM DISTRICT, PIN-676 306.
BY ADV SRI.P.V.CHANDRA MOHAN

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RESPONDENTS/RESPONDENTS:

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1FAROOQUE E.P.,
S/O.MUHAMMED, ENGAPADALIL HOUSE, PONMUNDAM P.O.,
VAILATHUR, TIRUR, MALAPPURAM DISTRICT,
PIN CODE -676 306.
2ABDUL AZEEZ,
S/O.MOHAMMED HAJI, KONASSERI HOUSE, KAIPPURAM P.O.,
PATTAMBI, PALAKKAD-678 001.
3RELIANCE GENERAL INSURANCE CO. LTD.,
2ND FLOOR, GLOBAL PLAZA, OPP. NEW RAILWAY,
VANCHIKULAM ROAD, PUTHOLE P.O., TRICHUR-680 004.
BY ADVS.
R3 BY SRI.K.B.RAMANAND
 SMT.DHANYA BABU

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HERAD
ON 03.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.No.2084 of 2012

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JUDGMENT

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Dated this the 03^rd day of March, 2023

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The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Tirur (for short ‘the Tribunal’) on 17.03.2012 in O.P(M.V) No.442/2009. The appellant is the petitioner before the Tribunal.

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For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition.

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The petitioner met with a motor accident at 12.30 hours on 17.12.2008 while he was travelling in a Car bearing Registration No.KL-9R/2535 through the public road near A R Nagar, Kolappuram. The driver of the Car was driving it in excessive speed and therefore, it hit on the rear side of the Lorry which was proceeding ahead at A.R. Nagar, Kolappuram and thereby he sustained serious injuries. The motor accident was allegedly occurred due to the rash and

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M.A.C.A.No.2084 of 2012

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negligent driving of the Car by its driver. Claiming for a sum of ₹12,00,000/-, the Original Petition on hand was moved. The driver, the owner and the insurer of the Car were arrayed as respondents 1 to 3 in the Original Petition.

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Though respondents 1 and 2 were served with notice, they did not turn up to contest the Original Petition and accordingly declared ex parte . The 3^rd respondent filed written statement admitting insurance coverage of the Car bearing Registration No.KL 9R/2535 with it as on date of accident. Vehicular documents including driving licence for the 1^st respondent and the compensation claimed were disputed.

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Evidence consists of the oral evidence adduced by PW1 and PW2 and Exts.A1 to A17 series and Ext.C1. On the basis of the above evidence, the Tribunal found that the motor accident in question was occurred due to the rash and negligent driving of the Car bearing Registration No. KL 9R/2535 by its driver. The Tribunal also found that the petitioner in view of serious injuries sustained by him in the motor accident is entitled to get compensation from

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M.A.C.A.No.2084 of 2012

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respondents 1 to 3 jointly and severally. ₹2,76,700/- was arrived at as the compensation payable. The 3^rd respondent, the insurer was directed to deposit the compensation arrived at with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation alongwith ₹12,000/- as proportionate cost. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner has approached this Court in the appeal on hand.

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The contention mainly raised by the learned counsel for the petitioner was that though the petitioner averred in the Original Petition as working as a Purchase Manager at Green Eyes, Gudaibia Avenue, Kingdom of Bahrain and earning 500 Bahrain Dinars (₹60,000/- Indian Rupee), in view of the injuries sustained in the motor accident and the treatment undergone for that, he was unable to continue that job. According to him, the petitioner was examined as PW1 and he deposed all aspects of his claim before the Tribunal. According to him, he had produced the statement of the NRI account operated by him which shows that large amounts have been sent to the

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M.A.C.A.No.2084 of 2012

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account maintained by him in a bank at his home town. He has also produced the bilateral agreement which has been executed by him with his employer, which is marked in evidence as Ext.A15. He has also produced the lease agreement executed by him with his landlord which would show that ₹20,000/- has been paid monthly to his landlord as rent for his stay abroad. Cash receipts evidencing payment of rent were also produced and those are Ext.A16 series marked in evidence. Ext.A16 series being documents prepared in Arabic language, he had also produced translations of those and got marked in evidence as Ext.A17 series. Based on the above evidence, he canvassed that the petitioner was getting ₹60,000/- as monthly income from his job as a Purchase Manager at Bahrain. According to the learned counsel, though the above documents were relied on by the petitioner, the Tribunal failed to consider those and confined fixation of monthly income as ₹9,000/-. According to him, the Tribunal is unjustified in calculating compensation based on ₹9,000/- as the monthly income.

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M.A.C.A.No.2084 of 2012

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The learned counsel submitted further based on

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the oral evidence of PW1 that he failed to join his job after undergoing the treatment for the injuries sustained in the motor accident. According to him his oral evidence itself would suffice to convince this Court that he had abandoned his job following the motor accident. He has also produced his passport and got it marked as Ext.A10 in evidence. According to the learned counsel, Ext.A10 also incorporates the Visa, the period of validity of which is upto 2014. The learned counsel canvassed that the period of validity of the Visa was upto 2014 and since he was constrained to abandon the job in the year 2008, he suffered loss and therefore, needs to be compensated. The learned counsel canvassed for interference of this Court and grant of just and reasonable compensation.

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The learned counsel for the 3^rd respondent contended on the contrary that the Tribunal was constrained to fix the monthly income notionally, since the petitioner failed to adduce any evidence to establish the same. According to her, the Tribunal is justified in fixing ₹9,000/-

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M.A.C.A.No.2084 of 2012

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as the monthly income and that needs to be maintained. The learned counsel contended further that the sums stand awarded as compensation under various other heads also being reasonable, interference of this Court with the impugned award is totally uncalled for.

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It is noticed from the oral evidence adduced by PW1 that he had not joined his job as Purchase Manager at Bahrain after meeting with the motor accident and undergoing treatment for the injuries sustained. This Court noticed from Ext.A10 that its validity period is upto 2014. Bilateral employment agreement marked in evidence as Ext.A15. When viewed in the backdrop of the oral evidence of PW1, Clauses 13 and 14 have significance and are extracted hereunder:

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“13. If the employee decide to leave the employment prior to the expiry of this agreement, employee will be liable to reimburse to the employer any other related expenses (As applicable).

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If the employee decide to leave the employment prior to the expiry of this agreement, employee will be responsible to bear the cost of the air ticket for the repatriation from Bahrain and also responsible to reimburse the visa related expenses to the employer.”

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M.A.C.A.No.2084 of 2012

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As per the terms extracted above, the employee if decides to leave the employment prior to the expiry of the period of the agreement, he will be responsible to bear the cost of the air ticket for his repatriation from Bahrain and to reimburse the Visa related expenses to the employer and also liable to reimburse other related expenses to the employer,.

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The specific case of PW1 was that while available in his home town on leave, the motor accident took place. It is also evidenced from the medical documents marked in evidence as Exts.A4 to A5 that the petitioner had sustained comminuted fracture involving the medial aspect of femoral head just caudal to the fovea and comminuted fracture involving the posterior acetabular pillar extending to the roof of the acetabulam. The petitioner underwent closed manipulative reduction of the left hip joint and upper tibial pin traction as procedures of treatment. Wound on the forehead was debrided and sutured. The patient was kept in observation for 4 days and discharged. He also had medical consultation for diabetes and medication for that was advised. He was also asked to review in Orthopedic OP

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M.A.C.A.No.2084 of 2012

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department after six weeks. Except Ext.A5 discharge summary, other medical documents are not forthcoming in evidence. Therefore, this Court has to take a view that apart from the review advised to have after 6 six weeks from the date of discharge, the petitioner has not follow up treatment

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in connection with the injuries sustained in the motor accident in question.

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While considering the claim of the petitioner regarding abandonment of his job abroad after the motor accident, the terms of the employment agreement marked in evidence as Ext.A15 are already referred to. In view those terms, before quitting the job prior to the expiry of the period of contract, the petitioner had to make lot of communications with his employer. Moreover, in Ext.A10 Passport an entry of the petitioner into Malaysia in the year 2009 is found entered. The period of Ext.A15 agreement was only for two years and therefore, this Court finds justification in taking a view that on expiry of that period, he went to Malaysia for some other employment. Therefore, the argument of the learned counsel for the petitioner that

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M.A.C.A.No.2084 of 2012

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he has abandoned his job following the accident due to his inability to pursue it on account of the physical difficulties resulted to him from the motor accident is not liable to be believed. It was revealed from Ext.A15 that at the time of entering into the agreement to join the job as a Purchase Manager at Bahrain, the employer had agreed to pay him 500 Bahrain Dinars as basic pay and 80 dinars as other allowances. The learned counsel has submitted that when the Bahrain Dinars is converted to Indian Rupees, it would be worth ₹70,000/-. The rental agreement was marked in evidence by the petitioner as Ext.A16 and it convinces this Court that ₹20,000/- was paid monthly for his stay abroad on a rental basis. Ext.A16 series evidence payment of rent. Ext.A6 statement of NRI account also convinces this Court that petitioner had transmitted a lumpsum amount to his account maintained with his local bank several months prior to the motor accident. But the amounts transferred vary from ₹1,00,000/- to ₹2,00,000/-. Even as per the claim of the petitioner he was getting only ₹70,000/- monthly from his job. The petitioner failed to disclose the source

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M.A.C.A.No.2084 of 2012

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wherefrom large amounts as shown in Ext.A6 series have been transmitted monthly from the NRI account of the petitioner to the account maintained by him locally. However, Ext.A15 shows that he has been paid 500 Bahrain dinars as basic pay and 80 Bahrain Dinars, as other allowances. The learned counsel conceded that 580 Bahrain Dinars is equivalent to Indian Rupees, ₹70,000/-. From Ext.A14, it stands proved that the petitioner had been paying ₹20,000/- monthly towards rent for his accommodation abroad. Petitioner has to meet with several other expenses also, in view of his stay at Bahrain.

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Nevertheless, this Court finds the fixation of ₹9,000/- as monthly income by the Tribunal, too low. Therefore, ₹15,000/- is taken into consideration. Four months’ period has been taken by the Tribunal for assessment of compensation for loss of earning. In view of the nature of injuries sustained by the petitioner, this Court is inclined to modify the period to five months. When compensation for loss of earning is calculated on the basis of ₹15,000/- as the monthly income and the period as five

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M.A.C.A.No.2084 of 2012

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months, ₹75,000/- is arrived at. ₹36,000/- stands awarded by the Tribunal when adjusted against, the petitioner will get ₹39,000/- as additional compensation towards loss of earning.

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Placing reliance on Ext.C1, the Tribunal had taken 10% permanent disability for the petitioner. This Court has already discarded the claim of the petitioner that he has abandoned his job at Bahrain on account of the motor accident. When compensation for disability is reassessed with the modified factors, ₹2,88,000/- (₹15,000/- x 12 x16 x10/100) is arrived at. ₹1,72,800/- stands awarded by the Tribunal when adjusted against, the petitioner will get ₹1,15,200/- as additional compensation.

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Towards pain and suffering the Tribunal has awarded ₹15,000/- and this Court is inclined to grant ₹25,000/- more. As compensation towards loss of amenities and enjoyments in life the Tribunal failed to award any sum as compensation and therefore is unjustified. This Court awards ₹25,000/-. As compensation towards transportation expenses, the Tribunal has awarded ₹4,000/- and it being

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M.A.C.A.No.2084 of 2012

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reasonable is maintained. As compensation towards extra nourishment and bystander expenses, ₹900/- and ₹600/respectively stand awarded by the Tribunal being inadequate and disproportionate, this Court awards ₹4,000/- each and therefore the petitioner will get ₹3,100/- and ₹3,400/respectively as additional compensation. As compensation towards damages to clothing, ₹500/- being the sum stands awarded, this Court awards ₹500/- more.

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When reassessed in the above manner, ₹2,11,200/- (Rupees two lakhs eleven thousand two hundred only) (₹39,000/- + ₹25,000/- + ₹25,000/- + ₹3,100/- + ₹3,400/- + ₹500/- + ₹1,15,200/-) is arrived at as total additional compensation. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The Tribunal had fixed liability upon the 3^rd respondent and directed it to deposit the compensation. In the absence of any challenge raised against the fixation, this Court is inclined to maintain that. Accordingly, the 3^rd respondent is directed to pay the additional compensation now arrived at

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M.A.C.A.No.2084 of 2012

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with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation excluding 76 days of delay occurred in filing the appeal, in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019 and the petitioner furnishing the particulars relating to the account maintained by him with his banker, within a period of two months from the date on which a certified copy of the judgment is received.

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M.A.C.A stands allowed accordingly.

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Sd/-

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MARY JOSEPH JUDGE

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NAB

Faisal E.P. v. Farooque E.P.

Case brief

What is this about?

What did the court decide?

Faisal E.P. v. Farooque E.P.

Case brief

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