Abdul Salam v. Abdul Galeel GADHAFI, C.P. AYOOB, ORIENTAL INSURANCE CO. LTD., K.K.NAJEEB, SHAJI T.V.

1 MACA No.2942 of 2009 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 7[TH] DAY OF JULY 2021 / 16TH ASHADHA, 1943 MACA NO. 2942 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 559/2001 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA, WAYANAD APPELLANT/S:** ABDUL SALAM, AGED 34 YEARS,S/O.LATE MAMOOTTY, ODAYOTH HOUSE, KOMMAYAD,, KELLOOR POST, MANANTHAVAADY TALUK,, WAYANAD DISTRICT. BY ADV SRI.N.J.ANTONY ## **RESPONDENT/S:** 1 ABDUL GALEEL GADHAFI S/O.ABDULLA, MINNANKODAN VEEDU, VELLAMUNDA POST,, MANANTHAVADY, WAYANAD DISTRICT., (DRIVER OF MOTOR CYCLE NO.KL-11N/5052 D.L.NO., 2496/98 D). 2 C.P.AYOOB AGE NOT KNOWN, S/O.BAVOOTTY C.P.HOUSE, ENNAPPADAM, WEST KALLAI POST, (OWNER OF MOTOR CYCLE NO.KL-11N/5052) 3 ORIENTAL INSURANCE CO. LTD. KINGSWAY BUILDING, MAVOOR ROAD JUNCTION,, KOZHIKODE. (INSURER OF MOTOR CYCLE NO.KL-11N/5052, POLICY NO.2002-2363, 2002-2426. VALID FROM, 20.6.2001 TO 19.6.2002) 4 K.K.NAJEEB, AGE NOT KNOWN S/O.MUHAMMED K.K., KOYAKUNNUMMEL VEEDU,, CHELAVOOR POST, KOZHIKODE DISTRICT. (DRIVER OF JEEP NO.KL10D/7907 DL NO.8264/96 D) 5 SHAJI T.V. AGE AND FATHERS NAME NOT KNOWN, 'GURUKRIPA', THRILLINKERY POST, THALASSERY, (OWNER OF JEEP NO.KL10D/7907) BY ADV SRI.VPK.PANICKER ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 07.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2942 of 2009 ## **C.S DIAS,J.** **--------------------------MACA No.2942 of 2009 ----------------------------Dated this the 7[th] day of July, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP (MV)No.559/2001 on the file of the Motor Accidents Claims Tribunal, Kalpetta. The respondents in the appeal were the respondents in the claim petition. 2. The facts in brief, in the claim petition, relevant for determination of the appeal, are: on 24.6.2001 while the appellant was riding pillion on a motor cycle bearing registration No.KL-11/N 5052, which was ridden by the first respondent along the Moozhickal Karanthoor road, the motor cycle was hit by a jeep bearing registration No.KL-10/D 7907(offending vehicle) driven by the fourth respondent. The appellant sustained serious injuries and was treated as an inpatient at Medical College Hospital, Calicut from the date of accident till 4.7.2001, i.e., for a 3 MACA No.2942 of 2009 period of 11 days. The offending vehicle was owned by the fifth respondent and insured with the third respondent. The appellant was a coolie worker and earning a monthly income of Rs.3,000/-. The second respondent was the owner and the third respondent was the insurer of the motor cycle. The appellant claimed a total compensation of Rs.2,00,000/- from the respondents. 3. The respondents 1, 2, 4 and 5 did not contest the proceedings and were set ex parte. 4. The third respondent – Insurance Company filed a written statement denying the assertions that both the vehicles have valid insurance policies. It was contended that the Police had registered a case as against the first respondent for causing the accident. 5. The appellant marked Exts A1 to A5 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by permitting the appellant to 4 MACA No.2942 of 2009 realise an amount of Rs.4050/- with interest at the rate of 6% per annum from the respondents 2 and 5. The Tribunal found that the driver of the motor cycle and driver of the offending vehicle were negligent. It was also found that both the vehicles did not posses valid insurance policies as contended by the third respondent. Accordingly, the Tribunal directed the owners of both the vehicles to pay the compensation. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard Sri.N.J.Antony, the learned counsel appearing for the appellant and Sri.V.P.K Panicker, the learned counsel appearing for the third respondent – Insurance Company. 9. The sole question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 10. The Tribunal on the basis of Exts A1 FIR, A2 5 ## MACA No.2942 of 2009 scene mahazar and A3 AMVI report arrived at a conclusion that the first respondent and the fourth respondent were equally negligent in driving their respective vehicles and causing the accident. Hence, it was found that there was contributory negligence on the part of both the drivers of the vehicles. It was found that both the vehicles did not possess valid insurance policies. Ergo, the Tribunal held that the owners of the vehicle, viz., respondents 2 and 5 were vicariously liable to indemnify the liability of the respondents 1 and 4. ## **Notional Income** 11. The appellant had claimed that he was a coolie worker and earning a monthly income of Rs.3,000/-. However, the Tribunal fixed the notional income of the appellant at Rs.2,100/-. 12. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** 6 MACA No.2942 of 2009 **236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 13. Following the parameters in the aforecited decision and considering the fact that the appellant was 26 years of age at the time of accident, I refix the notional income of the appellant at Rs.3,000/- per month. ## **Loss of earnings** 14. The Tribunal found that the appellant was indisposed for a period of one month. Therefore, in view of the refixation of the notional income of the appellant at Rs.3,000/-, I hold that the appellant is entitled for compensation under the head 'loss of earnings' at Rs.3,000/-. ## **Pain and sufferings** 15. The Tribunal as per Ext A4 wound certificate found that the appellant had sustained a lacerated wound over left patella and punctured wound over left patella. He was hospitalised for a period of 11 days and was 7 MACA No.2942 of 2009 incapacitated for a period of one month. 16. Taking note of all these factors, I hold that the appellant is entitled for enhancement of compensation under the head 'pain and sufferings' by a further amount of Rs.10,000/-. ## **Other heads of claim** 17. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 18. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court in the afore-cited decision, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified above, i.e., an amount of **Rs.3,000/-** under the head 'loss of earnings' and an enhancement by **Rs.10,000/-** under the head 'pain and sufferings'. In the result, the appeal is allowed, in part, by 8 MACA No.2942 of 2009 enhancing the compensation by a further amount of **Rs.13,000/-** (Rupees Thirteen Thousand only) with interest on the enhanced compensation at the rate of 6% per annum from the date of petition till the date of realisation. The respondents 2 and 5 shall deposit the enhanced compensation with interest as ordered above before the Tribunal within a period of two moths from the date of receipt of a copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner, in accordance with law. Sks/7.7.2021 **C.S.DIAS, JUDGE**