Abdul Azeez s/o Aboobacker v. Anesh P., Marakkar Haji and The New India Assurance Co. Limited

1 MACA No.1654 of 2012 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 10[TH] DAY OF NOVEMBER 2021 / 19TH KARTHIKA,** ## **1943** ## **MACA NO. 1654 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 473/2005 OF II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , KOZHIKODE** ## **APPELLANT/S:** ABDUL AZEEZ S/O. ABOOBACKER, RESIDING AT ANORAMMAL HOUSE, PUTHUPPADY VILLAGE, P.O.KAITHAPOYIL, KOZHIKODE TALUK. BY ADV SRI.SUNNY MATHEW ## **RESPONDENT/S:** 1 ANEESH.P S/O. AYYAPPAN, ANAPPARAKKAL HOUSE, SOUTH PUTHALAM, P.O.KAVANNOOR, VIA AREECODE. 2 MARAKKAR HAJI S/O. ENY, KONDAPPALLI HOUSE, PUTHOOR P.O., KOTTAKKAL, MALAPPURAM DISTRICT. 3 THE NEW INDIA ASSURANCE CO. LIMITED VARIKKODAN BUILDING, NILAMBUR ROAD, MANJERI. BY ADV SRI.P.K.BABU ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1654 of 2012 ## **C.S.DIAS, J. ====================== MACA No.1654 of 2012** **====================== Dated this the 10[th] day of November, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) 473/2005 on the file of the II Additional Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 12.1.2004. It was the appellant's case that, on the above said day, while he was travelling in a mini lorry bearing registration No.KL-11/H 8019 from Thamarasserry to Omassery, when he reached the place named Mudoor, a lorry bearing registration No.KL-10/H 8235, driven by the first respondent in a rash and negligent manner, hit the lorry 3 MACA No.1654 of 2012 in which the appellant was travelling. The appellant sustained serious injuries, including three fractures on his mandible and his three tooth had extracted. He was treated as an inpatient for a period of 14 days from 12.10.2004 to 25.10.2004. The offending lorry was owned by the second respondent and insured with the third respondent. The appellant was a businessman by profession and was earning a monthly income of Rs.15,000/-. Hence, the appellant claimed a compensation of Rs.10,92,000/- from the respondents, which was limited to Rs.3,00,000/-. 3. The first respondent did not contest the proceeding and was set ex parte. 4. The second respondent had filed a written statement refuting the allegations in the claim petition. 5. The third respondent had filed a written statement admitting that the offending lorry had a valid insurance coverage. However, the third respondent 4 MACA No.1654 of 2012 disputed the age, income and occupation of the appellant. 6. The appellant examined himself as PW1 and marked Exts A1 to A22 in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to realise from the third respondent an amount of Rs.16,384/- with interest @ 7% per annum from the date of claim petition till the date of realisation and a cost of Rs.650/-. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in the appeal. 9. Heard: Sri.Sunny Mathew, the learned Counsel appearing for the appellant/petitioner and Sri.P.K Babu, the learned counsel appearing for the third respondent – insurer. 10. The question that arises for consideration in the appeal is whether the quantum of compensation 5 MACA No.1654 of 2012 awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 11. Ext A1 FI statement registered by the Koduvally Police in report No.185, clearly proves that the accident happened due to the negligence of the first respondent. Admittedly, the second respondent was the owner and the third respondent was the insurer of the offending lorry. The third respondent has admitted that the offending lorry had a valid insurance coverage and has not proved that the second respondent had violated the terms of the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Notional Income** 12. The appellant had claimed that he was a businessman by profession and was earning a monthly income of Rs.15,000/-. However, he did not produce any material to substantiate his assertion. Accordingly, the 6 MACA No.1654 of 2012 Tribunal fixed the notional monthly income of the appellant at Rs.3,000/-. 13. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13** **SCC 236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 14. Following the yardstick in the aforecited decision and considering the fact that the accident happened in the year 2004, I re-fix the appellant's notional monthly income at Rs.4,000/-. ## **Loss of earnings** 15. Going by the nature of injuries sustained by the appellant and considering the fact that he was a businessman by profession, I hold that he was indisposed for a period of three months. 16. In view of the refixation of the notional monthly income of the appellant at Rs.4,000/-, I hold that he is 7 MACA No.1654 of 2012 entitled for loss of earnings at Rs.12,000/- instead of Rs.3,000/- awarded by the Tribunal, i.e., an enhancement of **Rs.9,000/-** . ## **Bystander expenses** 17. The appellant was treated as an inpatient for a period of 14 days, the Tribunal has awarded only an amount of Rs.1300/- , which according to me is on the lower side. 18. Considering the fact that the accident occurred in the year 2004, I award the appellant Rs.250/- per day for a period of 14 days towards bystander expenses, i.e., an amount of Rs.3,500/-. ## **Compensation for pain and sufferings and loss of amenities** 19. Even though the appellant had claimed an amount of Rs.1,00,000/- under the head 'pain and sufferings', the Tribunal has awarded an amount of Rs.8,000/-, which according to me is too meagre. 8 MACA No.1654 of 2012 20. Considering the fact that the appellant was treated as an inpatient for a period of 14 days and he was indisposed for a period of three months, I hold that the appellant is entitled for enhancement of **Rs.12,000/-** under the head 'pain ad sufferings'. Similarly, I award an amount of **Rs.10,000/-** under the head 'loss of amenities'. ## **Other heads of claim** 21. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of **Rs.33,200/-** (Rupees Thirty Three Thousand Two Hundred only) ( i.e., Rs.9,000/- under the head 'loss of earnings', Rs.2,200/- under the head 'bystander expenses', Rs.12,000/- under the head 'pain and sufferings and Rs.10,000/- under the head 'loss of 9 MACA No.1654 of 2012 amenities') with interest at the rate of 7% per annum from the date of claim petition till the date of realisation, after deducting interest for a period of 162 days, i.e., the period of delay in filing the appeal and as ordered by this Court on 17.8.2012 in C.M Appln 1962/2012, and a cost of Rs.5,000/-. The third respondent-insurer is ordered to deposit the enhanced compensation amount with interest and costs before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the enhanced compensation amount to the appellant, in accordance with law. Sd/- sks/10.11.2021 **C.S.DIAS, JUDGE**