Ajithkumar S/o Nepolean v. Ullasan Vishnu Nivas, P. M. Rajappan, and United India Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 17[TH] DAY OF NOVEMBER 2021 / 26TH KARTHIKA, 1943 MACA NO. 3052 OF 2009 AGAINST THE ORDER/JUDGMENT IN OPMV 867/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA, ALAPPUZHA** ## **APPELLANT/S:** AJITHKUMAR S/O. NEPOLEAN, KARUMANCHERRY,, KODAMTHURUTHU PANCHAYATH WARD 3,, CHERTHALA, ALAPPUZHA DISTRICT. BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA ## **RESPONDENT/S:** 1 ULLASAN VISHNU NIVAS, NEAR N.S.S. COLLEGE,, K.R. PURAM.P.O, CHERTHALA, ALAPPUZHA DISTRICT. 2 P.M. RAJAPPAN PANDIAYATH HOUSE, KADAKKARAPPALLY.P.O,, CHERTHALA, ALAPPUZHA DISTRICT. 3 UNITED INDIA INSURANCE COMPANY LTD. CHERTHALA, ALAPPUZHA DISTRICT. BY ADV SRI.P.V.DILEEP THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 3052 OF 2009 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.867/2003 on the file of the Motor Accidents Claims Tribunal, Alappuzha. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 12.03.2002. It was his case that, on the above said date, while he was riding a scooter in front of the petrol pump at Kuthiathode, a tempo van bearing registration No. KRA-5971 (Van), driven by the 1[st] respondent in a rash and negligent manner, hit the appellant. The appellant had sustained serious injuries, including a compound fracture to both the bones of his right leg. He was treated as an inpatient from 23.05.2002 to 06.06.2002 at the KVM Hospital, Cherthala. Thereafter, MACA NO. 3052 OF 2009 3 he was treated as an inpatient from 10.08.2002 to 12.08.2002 and from 31.10.2002 to 02.11.2002, i.e., in three spells spanning 18 days. The appellant was a private bus driver by profession and was earning a monthly income of Rs.6,000/-. The van was owned by the 2[nd] respondent and insured with the 3[rd] respondent. Hence, the appellant claimed a compensation of Rs.2,09,800/- from the respondents, which was limited to Rs.2,00,000/-. 3. Another injured in the same accident had also filed O.P (M.V) No. 873/2003 before the same Tribunal, seeking compensation from the respondents. 4. The respondent Nos. 1 and 2 did not contest the proceedings and were set ex-parte. 5. The 3[rd] respondent had filed separate written statements in the two claim petitions, inter alia, contending that the accident occurred due to the negligence of the appellant. However, the 3[rd] respondent admitted that the van had a valid insurance policy. MACA NO. 3052 OF 2009 4 6. The Tribunal consolidated and jointly tried the two claim petitions. 7. The petitioners in the two claim petitions produced and marked Exts.A1 to A13 in evidence. The respondents did not let in any evidence 8. The Tribunal, after analyzing the pleadings and materials on record, by its common award allowed the captioned claim petition in part, by permitting the appellant to recover from the 3[rd] respondent an amount of Rs. 41,750/- with interest @ 6% per annum from the date of petition till the date of realisation and proportionate costs. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard Sri. Firoz K. M, the learned counsel appearing for the appellant/petitioner. 11. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal reasonable and just ? MACA NO. 3052 OF 2009 5 ## **Negligence and Liability** 12. It is proved by Ext.A3 charge sheet filed by the Police that the accident occurred due to the negligence of the 1[st] respondent. Admittedly, the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the van. The 3[rd] respondent has not proved that the 2[nd] respondent had violated the insurance policy conditions. Similarly, the respondents have not let in any contra evidence to discredit the charge sheet. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income of the appellant** 13. The appellant had claimed that he was a driver by profession and earning a monthly income of Rs.6,000/-. However, for the want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.1,500/-. MACA NO. 3052 OF 2009 6 ## 14. In **Chandra @ Chanda @ Chandraram & Anr v.** **Mukesh Kumar Yadav & Ors : LL 2021 SC 531,** the Honourable Supreme Court has fixed the notional income of a driver in the year 2004 at Rs.6,000/- per month. 15. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2002, I refix the notional monthly income of the appellant at Rs.5,000/-, as claimed in the petition. ## **Loss of earnings** 16. It is proved that the appellant had sustained a compound fracture of both bones of his right leg. He was treated as an inpatient for a period of 18 days in three spells, spanning 6 months. In the said circumstances, I hold that the appellant, especially being a driver by profession, was indisposed for a period of six months. 17. In view of the refixation of the notional monthly income of the appellant at Rs.5,000/-, I refix the compensation for 'loss of earnings' at Rs. Rs. 30,000/-, MACA NO. 3052 OF 2009 7 instead of Rs. 3,000/- awarded by the Tribunal, i.e., an enhancement by Rs. 27,000/-. ## **Pain and sufferings and Loss of amenities** 18. The appellant had claimed a compensation of Rs.25,000/- towards pain and suffering. However, the Tribunal awarded an amount of Rs.10,000/- under the said head. Similarly, the appellant had claimed an amount of Rs. 15,000/- towards loss of amenities, but the Tribunal had awarded only an amount of Rs.8,000/-. 19. On a consideration of the serious injuries sustained by the appellant, including the compound fracture suffered by the appellant, that he was a driver by profession, that he was treated as an inpatient for a period of 18 days and that he was indisposed for a period of six months, I hold that the appellant is entitled to a further amount of Rs. 10,000/- under the head ‘pain and sufferings and Rs.7,000/-towards 'loss of amenities'. MACA NO. 3052 OF 2009 8 20. With respect to the other heads of compensation, I find that the Tribunal has awarded a reasonable and just compensation. In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.44,000/- ( i.e. an amount of Rs. 27,000 towards 'loss of earnings', Rs. 10,000/- towards ‘pain and sufferings’ and an amount of Rs. 7,000/- towards 'loss of amenities') with interest at the rate of 6% per annum from the date of petition till the date of deposit and a cost of Rs.5,000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal, within a period of 60 days from today. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. Sd/- **C.S.DIAS JUDGE** avs