Kerala High Court
Afees @ Hafees Ali vs Shamsudheen on 30 September, 2024
MACA NO. 233 OF 2021
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2024:KER:72550
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
MACA NO. 233 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 19.05.2020 IN OPMV NO.94
OF 2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR
APPELLANT:
AFEES @ HAFEES ALI
AGED 27 YEARS
S/O.MOHAMMEDALI, PADINJARE VALAPPIL HOUSE,
CHIYANOOR, PALLIKUNNU, KOKKUR P.O, PAVITTAPPURAM,
ALANKODE ,MALAPPURAM DISTRICT-679 591
BY ADV P.V.CHANDRA MOHAN
RESPONDENTS:
1 SHAMSUDHEEN
S/O. MOHAMMED, ARATHUVALAPPIL HOUSE,
MOOKUTHALA P.O., NANNAMMUKU,
MALAPPURAM DT-679 574
2 UNITED INDIA INSURANCE CO.LTD.,
REPRESENTED BY ITS BRANCH MANAGER,
PEEVEES BUILDING, KUTTIPPURAM, VALANCHERY,
MALAPPURAM DISTRICT,-676 552
BY ADV SRI.THOMAS MATHEW NELLIMOOTTIL
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 30.09.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA NO. 233 OF 2021
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JUDGMENT
The claimant in OP (MV) No. 94/2017 on the files of Motor Accidents Claims Tribunal, Tirur is the appellant.
2. Succinctly stated the facts are as follows: on 23.12.2013 at 9.30 a.m, at Changaramkulam, the accident took place while he was riding a motorcycle bearing registration No. KL-54-E-961 which was hit by an autorikshaw bearing registration No. KL-54-A-6294 driven by the 1st respondent in a rash and negligent manner. The claimant was taken to Arafa Hospital, Changaramkulam and referred to Royal Hospital, Kunnamkulam. According to the claimant, the accident occurred solely due to the rash and negligent driving of driver of the autorikshaw. The Insurance Company appeared and contested the claim. It was contented that the accident was caused due to the negligence of the claimant. It was further stated that driver of the autorikshaw did not have a valid driving licence. On behalf of the claimant, Exts. A1 to A6 were marked. The claimant was referred to the Standing MACA NO. 233 OF 2021 -3- 2024:KER:72550 Disability Assessment Board which certified the disability caused to the claimant due to the accident at 13%. Ext.X1 was the treatment file summoned by the claimant from the Royal Hospital, Kunnamkulam in order to prove the expenses incurred by him towards the medical treatment.
3. The Tribunal on considering the evidence on record granted the following compensation:-
Sl. Head of Claim Compensati Amount Basic Vital No on Claimed determine details in a (Rs) d (Rs.) nut shell 1 Loss of earning 75,000 48,000 2 Partial loss of Nil Nil earning 3 Transport to 10,000 12,000 hospital 4 Extra nourishment 5,000 4,500 5 Damage to 2,000 1,000 clothing and articles 6 Others:1)Medical 70,000 50,000 Medical expenses and exp & bystander Bystander expenses.
2)Future treatment 25,000 5,000 expense 7 Compensation for 50,000 50,000 pain and suffering.
8 Compensation for 8,00,000 2,24,640 continuing MACA NO. 233 OF 2021 -4- 2024:KER:72550 permanent disability and loss of earning power.
9 Compensation for 5,90,000 25,000 Loss of
disfigurement, loss amenities
of amenities of life,
loss of marriage
prospects etc, loss
of education.
Total 16,27,000/- 4,20,140/-
While granting the compensation as aforesaid, the
Tribunal fixed the notional income of the claimant at Rs.8,000/-. The Tribunal however, disbelieved the claim of the appellant/claimant for reimbursement of Rs.82,633/- which was incurred by him towards the medical treatment. It is aggrieved by the aforesaid findings, claimant has approached this Court with the present appeal.
4. I have heard Sri. P.V Chandramohan, learned counsel appearing for the appellant and Sri. Thomas Mathew Nellimoottil, learned counsel appearing for the Insurance company.
5. The learned counsel appearing for the appellant, Sri. P.V Chandramohan submitted that the fixation of MACA NO. 233 OF 2021 -5- 2024:KER:72550 notional income of the claimant who was a final year engineering student at the time of accident and was aged 23 at Rs.8,000/- was thoroughly improper. He relied on the judgment of the Hon'ble Supreme Court in S.Vasanthi v. M/s. Adhiparasakthi Engg. College and Another [AIR 2022 SC 5051] and Basanti Devi and another v. Divisional Manager, New India Assurance Company Ltd., and Others [ 2021 KHC 6888] to contend that in so far the income of a engineering student, at least an amount of Rs. 13,000/- has to be fixed as notional income. He further pointed out that the entire medical bills were misplaced from the office of the lawyer to whom the bills were entrusted for preferring the claim before the Tribunal and hence, the claimant had filed an affidavit stating that he had not produced documents to claim reimbursement of the amounts so incurred towards the medical treatment. Later the claimant had also summoned the treatment records from Royal Hospital, Kunnamkulam which was marked as Ext.X1. The Tribunal however relied on Ext.X1 to find that the claimant had MACA NO. 233 OF 2021 -6- 2024:KER:72550 visited the hospital for at least 8 times and further that there was no material to controvert or discredit Ext.X1. Once the Tribunal had accepted Ext.X1, according to the learned counsel for the appellant, the Tribunal ought to have granted the entire amount as compensation. He further prayed that the compensation under the head loss of amenities may also to be increased.
6. On the other hand, Sri.Thomas Mathew Nellimoottil, the learned counsel appearing for the Insurance company pointed out that the bills were not proved by the claimant and hence, the Tribunal had rightly rejected the claim and reasonable compensation were awarded. He further pointed out that the fixation as has been done by the Supreme Court in the judgments cited by the learned counsel for appellant were all cases of death. The facts of the case before the Supreme Court cannot be equated with that of the present case and therefore submitted that the notional income of the claimant cannot be fixed at Rs. 13,000/- as claimed by the appellant.
MACA NO. 233 OF 2021 -7- 2024:KER:72550
7. I have considered the rival submissions raised across the Bar.
8. It is indisputed that the appellant was a final year engineering student. The job prospects of an engineering student during the time of accident ie, 2013 was certainly bright. Even for a coolie worker, going by the principles laid down by the Supreme Court in Ramachandrappa v Royal Sundaram Alliance Insurance Company Ltd. [AIR 2011 SC 2951], notional income would be Rs.9,000/-. At any rate, a coolie worker cannot be equated to that of a final year engineering student. At the same time, this Court finds force in the argument of the learned counsel for Insurance Company that the notional income as fixed by the Supreme Court cannot be taken as the basis for fixation of notional income in the facts of the present case. Hence, this Court has to certainly balance between the principles laid down by the Supreme Court in Ramachandrappa (Supra) and also the principles laid down in Basanthi Devi and another (Supra). Hence, considering the facts MACA NO. 233 OF 2021 -8- 2024:KER:72550 and circumstances, this Court deems it appropriate to fix the notional income of the claimant at Rs.13,500/-.
9. Coming to the next question as to the acceptability of Ext.X1, no doubt the appellant failed to prove the contents of the medical bill by producing the originals of the medical bill. Therefore, the learned counsel for the Insurance Company is justified in pointing out that the appellant has not proved the contents of the medical bill. Having said so, it is pertinent to note that the appellant had summoned the entire records from the Royal Hospital, Kunnamkulam and marked the same as Ext.X1. The Insurance Company admittedly could not discredit the contents of Ext.X1 as has been rightly found by the Tribunal. Once the Tribunal has entered a finding that the contents of Ext.X1 have not been discredited and in the absence of any appeal against the said finding, necessarily this Court has to see as to whether the finding of the Tribunal limiting the amount to Rs. 50,000/- has to be accepted. On a consideration of the entire facts and also the finding rendered in the impugned award, this MACA NO. 233 OF 2021 -9- 2024:KER:72550 Court is of the considered view that once the file relating to the medical treatment was marked as Ext.X1, and since there was no contra evidence, the Tribunal ought to have accepted the entire records as such and therefore completely erred in restricting the claim to Rs. 50,000/-. This is despite the fact that the claimant had filed an affidavit stating that he had not received any amount towards reimbursement of the treatment expenses. Therefore, this Court is of the view that the amount of Rs. 82,633/- has to be granted as the medical expenses to the claimant/ appellant.
10. In so far as the claim for enhancement under the head loss of amenities, marriage prospects and loss of education etc., though there is no evidence regarding the same, the Tribunal ought to have fixed a reasonable amount. Considering the facts of the case, this Court deems it appropriate to fix the same at Rs.50,000/-.
11. In view of the above, the claim of the appellant is entitled to succeed. Appeal is allowed and the enhancement is granted as follows:-
MACA NO. 233 OF 2021 -10- 2024:KER:72550 Sl. Head of Claim Compensati Amount Enhanced by No on Claimed determine this Court (Rs) d (Rs.) (Rs.) 1 Loss of earning 75,000 48,000 33,000 (13,500 x 6= 81,000-48,000) 2 Partial loss of Nil Nil earning 3 Transport to 10,000 12,000 hospital 4 Extra nourishment 5,000 4,500 5 Damage to 2,000 1,000 clothing and articles 6 Others:1)Medical 70,000 50,000 32,633 expenses and (82,633-50,000) bystander expenses.
2)Future treatment 25,000 5,000 expense 7 Compensation for 50,000 50,000 pain and suffering.
8 Compensation for 8,00,000 2,24,640 1,54,440
continuing (13,500 x 12 x
permanent 18 x 13/100 =
disability and loss 3,79,080 -
2,24,640)
of earning power.
9 Compensation for 5,90,000 25,000 25,000
disfigurement, loss (50,000-25,000)
of amenities of life,
loss of marriage
prospects etc, loss
of education.
Total 16,27,000/- 4,20,140/- 2,45,073/-
MACA NO. 233 OF 2021
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2024:KER:72550
Thus a total amount of Rs.2,45,073/- (Rupees two lakhs forty five thousand and seventy three only) is awarded as enhanced compensation. The aforesaid amount shall carry an interest at 7% from the date of the application till realization with proportionate costs on the enhanced compensation. The Insurance Company shall deposit the enhanced compensation together with interest and proportionate costs within a period of one month from the date of receipt of a copy of this judgment. The claimant shall furnish the details of the bank account to the Insurance Company for transfer of the amount. The appeal is ordered accordingly. No order as to costs.
Sd/-
EASWARAN S. JUDGE ASH