AMANULLA S/O BEERANKUTTY v RIYAS BABU S/O MOIDEEN, THE MANAGER LITTLE FLOWER ENGLISH MEDIUM SCHOOL, NILAMBUR, NEW INDIA ASSURANCE COMPANY LIMITED

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 03RD DAY OF DECEMBER 2020 / 12TH AGRAHAYANA, 1942** ## **MACA.No.2081 OF 2012(B)** **AGAINST THE AWARD IN OPMV 1094/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANT/S:** **AMANULLA S/O. BEERANKUTTY, ALIPPALLY HOUSE, NADUVAKKAD, P.O.MAMPAD, MALAPPURAM DISTRICT.** **BY ADV. SHRI.P.VENUGOPAL** ## **RESPONDENT/S:** **1 RIYAS BABU S/O. MOIDEEN, THARAMANIL HOUSE, NADUVATH-PO, VIA. WANDOOR, MALAPPURAM DISTRICT-679328. 2 THE MANAGER LITTLE FLOWER ENGLISH MEDIUM SCHOOL, NILAMBUR-PO, MALAPPURAM DISTRICT-679329. 3 NEW INDIA ASSURANCE COMPANY LIMITED VARIKKODAN BUILDING, NILAMBUR ROAD, MAJERI, MALAPPURAM DISTRICT-676121.** **R1 BY ADV. SRI .ZIYAD RAHMAN BY ORDER R1 BY ADV. SRI.RAJAN P.KALIYATH R3 BY ADV. SRI .ZIYAD RAHMAN (BY ORDER)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-11-2020, THE COURT ON 03-12-2020 DELIVERED THE FOLLOWING:** ## **MACA.No.2081 OF 2012(B)** ..2.. ## **JUDGMENT** ## **Dated this the 3[rd] day of December 2020** The appellant was the petitioner in OP (MV) No.1094 of 2008 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the appeal were the respondents in the claim petition. 2. The petitioner 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 a motor accident that took place on 05.12.2007. 3. The case of the petitioner, in brief, in the claim petition was that, on 05.12.2007, while he was riding his motor cycle bearing registration No.KL-10/Y-2753, when he reached near Naduvakkad in Pulikkalodi-Mempad public road, Malappuram, the bus bearing registration No.KL-10/B-7160 driven by the 1[st] respondent, in a rash and negligent manner, hit the motor cycle of the petitioner. The bus belonged to the 2[nd] respondent and ## **MACA.No.2081 OF 2012(B)** **==> picture [17 x 9] intentionally omitted <==** was insured with the 3[rd] respondent. The petitioner sustained serious injuries, including multiple fracture and was taken to the Korambayil Memorial Hospital, Manjeri and, thereafter, to the Medical College Hospital, Kozhikode. The petitioner was a coolie worker by profession and had a monthly income of Rs.6,000/-. The petitioner claimed a total compensation of Rupees Two Lakh, under various heads. 4. The respondents 1 and 2 were set ex parte. 5. The third respondent entered appearance and filed a written-statement, inter alia, admitting the insurance policy. However, the 3[rd] respondent alleged that the accident took place due to the rash and negligent riding by the petitioner. 6. The petitioner produced and marked Exhibits A- 1 to A-6 series in evidence. The 3[rd] respondent produced and marked Exhibit B-1 and the Medical Board report was Exhibit X-1. 7. The Tribunal, after considering the pleadings ## **MACA.No.2081 OF 2012(B)** **==> picture [18 x 9] intentionally omitted <==** and materials on record, by the impugned award allowed the claim petition, in part, by holding that the petitioner was entitled to a compensation of Rs.91,004/-, but in view of the finding that the petitioner was guilty for 50% contributory negligence, he was only entitled to recover an amount of Rs.45,502/- with interest at the rate of 9% per annum from the date of petition till the date of realization with proportionate costs from the 3[rd] respondent. 8. The comparative table of compensation that was claimed by the petitioner and that was awarded by the Tribunal is as follows:- |**Sl.**<br>**No.**|**Head under which**<br>**compensation is claimed**|**Amount claimed ( in**<br>**(in Rupees)**|**Amount allowed**<br>**(in Rupees)**| |---|---|---|---| |1|Loss of earning|35,000/-|9,000/-| |2|Partial loss of earning|Nil|3,000| |3|Medical expenses|10,000|8,004| |4|Bystander expenses|1,000|Nil| |5|Damage to clothing etc|1,000|250| |6|Transportation|5,000|750| |7|Extra nourishment|3000|Nil| |8|Pain and sufferings`|25000|10,000| ## **MACA.No.2081 OF 2012(B)** ..5.. |9|Loss of amenity and<br>conveniences/Disability|Claimed under 15|35000| |---|---|---|---| |10|Loss of earning power|1,20,000|Nil| ||Any other heads|-|15,000<br>10,000| ||**Total**|**2,00,000**|**91,004/-**<br>**reduced by 50%**| 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal before this Court. 10. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the 3[rd] respondent/3[rd] respondent. 11. The question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is just and reasonable? 12. A Constitution Bench of the Hon'ble Supreme Court **in National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and ## **MACA.No.2081 OF 2012(B)** **==> picture [18 x 8] intentionally omitted <==** equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equability. 13. The facts that the petitioner was 32 years of age and that he has 5% disability as certified in Exhibit X- 1 is not disputed by both sides. 14. The main area of dispute is pertaining to the notional income and the 50% contributory negligence quantified by the Tribunal. ## **Income** 15. The petitioner had averred in the claim petition that he was a coolie worker and had an income of Rs.6,000/- per month. The Tribunal after considering the evidence and materials on record fixed the petitioner's notional income at Rs.3,000/- per month. 16. The law in respect of notional income is well settled by a host of judicial pronouncements by the Hon'ble Supreme Court, particularly in ## **MACA.No.2081 OF 2012(B)** ..7.. **Ramachandrappa v. Manager, Royal Sundaram Alliance** [(2011) 13 SCC 236] and **Syed Sadiq and others v. Divisional Manager, United India Insurance Co.Ltd.** [(2014) 2 SCC 735]. The Hon'ble Supreme Court in **Ramachandrappa** (supra) has fixed the notional income of a coolie worker in the year 2004 @ Rs.4,500/- per month. In **Syed Sadiq** (supra), the Hon'ble Supreme Court fixed the notional income of a vegetable vendor in the year 2006 @ Rs.6,500/- per month. 17. This Court in **Soman vs. Jinesh James and others** [ILR 2020 (3) Kerala 1003] has fixed the notional income of a coolie worker in the year 2010 @ Rs.7,500/per month. 18. Going by the parameters laid down in the afore cited decisions and considering the fact that the petitioner was a coolie worker and that the accident occurred in the year 2007, I am of the definite opinion that the petitioner's notional income can safely be fixed at Rs.6,000/-, as claimed in the claim petition, instead of Rs.3,000/- fixed by the Tribunal. ## **MACA.No.2081 OF 2012(B)** **==> picture [18 x 8] intentionally omitted <==** Accordingly, I re-fix the notional income of the petitioner @ Rs.6,000/- per month. ## **Loss of Earnings** 19. In light of the re-fixation of the monthly income of the petitioner at Rs.6,000/- and that the petitioner was under treatment for five months, I enhance the loss of earnings of the petitioner from Rs.9,000/- to Rs.30,000/-. i.e. Rs.6,000/- per month for 5 months. ## **Bystander Expenses** 20. Similarly, the petitioner was hospitalized for a period of eight days, but no amount was awarded towards bystander expenses. Hence, I fix an amount of Rs.200/per day towards bystander expenses, totaling to an amount of Rs.1,600/-. ## **Loss due to disability** 21. With respect to compensation towards loss due to disability, particularly after the re-fixation of the income of the petitioner and that he has 5% locomoto disability, I enhance the compensation from Rs.35,000/- to ## **MACA.No.2081 OF 2012(B)** **==> picture [18 x 9] intentionally omitted <==** Rs.57,600/-. ## **Contributory Negligence** 22. The Tribunal on the ground that the petitioner had only produced Exhibit A-1 FIR and not the charge sheet, came to the conclusion that the petitioner was negligent to the extent of 50%, for the cause of the accident. 23. In the appeal, the petitioner has produced Annexure A-1 along with I.A.No.2693 of 2012, seeking leave to accept the document. The application was allowed by this Court and the charge sheet has been accepted in evidence. 24. In Annexure A-1, the Police after investigation have found that it was the first respondent who caused the accident. The Division Benches of this Court in **New India Assurance Company Ltd. v. Pazhaniammal** [2011 (3) KLT 648] and **National Insurance Company Ltd. v. Ramla and others** [2016 (4) KHC 891] have held that the charge sheet can be taken as prima facie proof of **MACA.No.2081 OF 2012(B)** **==> picture [22 x 7] intentionally omitted <==** negligence, especially when there is no contra evidence. In light of the finding in Annexure A-1 that it was the first respondent who was rash and negligent in causing the accident, I set aside the finding of the Tribunal, that the petitioner was guilty of contributory negligence to the extent of 50%. Accordingly, I hold that the petitioner is entitled to the entire amount of compensation fixed by this Court. ## **Other heads of claim** 25. With respect to the compensation awarded under the other heads of claim, namely - (i) transport, (ii) clothing, (iii) medical expenses, (iv) pain and sufferings and (v) future treatment due to the loos of 6 teeth, I hold that the compensation awarded by the Tribunal is reasonable and just. Therefore, I do not find any reason to enhance the amounts under the above heads of claim. 26. 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 decisions, I am of the ## **MACA.No.2081 OF 2012(B)** ..11.. firm opinion that the petitioner is entitled for enhanced compensation under the heads of claim modified, re-fixed and re-calculated above, and given in the table below for easy reference. |**Sl.**<br>**No.**|**Head under which**<br>**compensation is**<br>**claimed**|**Amount**<br>**claimed**<br>**( in Rupees)**|**Amount**<br>**allowed**<br>**(in Rupees)**|**Amount modified**<br>**and recalculated by**<br>**this Court**| |---|---|---|---|---| |1|Loss of earning|35000|9,000|30,000| |2|Partial loss of earning|-|3,000|Nil| |3|Medical expenses|10,000|8,004|8,004| |4|Bystander expenses|1,000|Nil|1,600| |5|Damage to clothing<br>etc|1,000|250|250| |6|Transportation|5,000|750|750| |7|Extra nourishment|3,000|Nil|Nil| |8|Pain and sufferings`|25,000|10,000|10,000| |9|Loss of amenity and<br>conveniences/Disabilit<br>y|Claimed under<br>15|35000|57600| |10|Loss of earning power|1,20,000|Nil|Nil| |11|Future treatment|Nil|25000|25000 (for treatment<br>for the loss of six<br>teeth)| ||Any other heads|-|15,000<br>10,000|Nil| ||**Total**|**2,00,000**|**91,004/-**<br>**reduced by**<br>**50% -**<br>**45,502**|**1,33,204/-**| In the result, the appeal is allowed by re-fixing the compensation at Rs.1,33,204/- (Rupees One Lakh Thirty Three Thousand Two Hundred and Four only) with ## **MACA.No.2081 OF 2012(B)** ..12.. interest at the rate of 9% per annum from the date of petition till the date of realisation with proportionate costs, instead of Rs.45,502/- fixed by the Tribunal in the impugned award, i.e., a further enhancement of Rs.87,702/-. The 3[rd] respondent shall deposit the additional compensation granted in the appeal before the Tribunal together with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment, after deducting the liability, if any, of the petitioner towards balance court-fee and legal benefit fund. The disbursement of the compensation, if any, and the additional compensation to the petitioner shall be done by the Tribunal, in accordance with law. Sd/- ## **C.S.DIAS** **JUDGE** kkj