Ansar v. Beeta Traders and Agencies and Others

MACA NO. 2131 OF 2009 1 ## **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. 2131 OF 2009** ## **AGAINST THE ORDER/JUDGMENT IN OPMV 972/2002 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL ,ERNAKULAM, ERNAKULAM** ## **APPELLANT/S:** ANSAR, AGED 22 YEARS, S/O.IBRAHIM, KADAVIL HOUSE,, NETTOOR KARA, MARADU VILLAGE. BY ADV SRI.O.D.SIVADAS ## **RESPONDENT/S:** 1 MANAGING DIRECTOR,M/S.BEETA TRADERS AND AGENCIES,, 46/406 BRISTOW ROAD, KOCHI-682 003. 2 SURESH SO.CHATHU MANNARI PARAMBIL VEEDU, IRIMPANAM KARA, IRIMPANAM P.O.,, THIRUVANKULAM. 3 THE NATIONAL INSURANCE CO.LTD. DAMODAR CHAMBERS STATUE JUNCTION,, TRIPUNITHURA. 4 A.T.SEBASTIAN, ANJIPARAMBIL HOUSE PANANGAD P.O., KOCHI. 5 NATIONAL INSURANCE CO.LTD. DAMODAR CHAMBERS, STATUE JUNCTION,, TRIPUNITHURA. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2131 OF 2009 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.972/2002 on the file of the Motor Accidents Claims Tribunal, Ernakulam. 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 15.09.2001. It was his case that, on the above said date, while he was driving the car bearing registration No.KL-7/L 4159 from Chittoor to Kumabalam along the Edappalli - Aroor by-pass road, a tempo van bearing registration No.KL-7/R 8791(van), driven by the 2[nd] respondent in a rash and negligent manner, hit the car. The appellant sustained serious injuries and was treated as an inpatient at the Medical Trust Hospital, Ernakulam from the date of accident till 28.09.2001. The 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the van. The respondents 4 and 5 were the owner and the insurer of the 3 MACA NO. 2131 OF 2009 car. The appellant was a driver by profession and earning a monthly income of Rs.3,000/-. Hence, the appellant claimed a compensation of Rs.3,00,000/- from the respondents. 3. The respondents 1, 2 and 4 did not contest the proceedings and were set ex-parte. 4. The respondents 3 and 5, the insurer of the car and the van - the same insurance company - filed written statements admitting that both the vehicles had valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the appellant. The respondents 3 and 5 also disputed the age, income and occupation of the appellant. 5. The appellant produced and marked Exts.A1 to A9 in evidence. The 3[rd] respondent produced and marked Ext.B1 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to realise from the 3[rd] respondent an amount of Rs.87,358/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. MACA NO. 2131 OF 2009 4 8. Heard; Sri. O.D.Sivadas, the learned counsel appearing for the appellant/petitioner and Sri.P. Jacob Mathew, the learned counsel appearing for the respondents 3 and 5/ insurer of both the vehicles. 9. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and Liability** 10. Ext.A5 charge sheet filed by the Police substantiates that the accident occurred due to the negligence of the 2[nd] respondent. Admittedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the van. The 3[rd] respondent has admitted that the van had a valid insurance coverage and has not proved that the 1[st] respondent has violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 11. The appellant had claimed that he was a driver by profession and earning a monthly income of Rs.3,000/-. MACA NO. 2131 OF 2009 5 However, the Tribunal fixed the notional monthly income of the appellant at Rs.2,000/-. 12. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd** . [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/ per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident happened in the year 2001, I hold that the appellant's notional income can safely be fixed at Rs.3,000/- as claimed in the claim petition. ## **Loss of earnings** 14. It is proved by Ext.A3 wound certificate and Ext.A8 and A9 discharge summaries that the appellant had sustained a communited fracture of both bones of his right leg and he was treated as an inpatient for 13 days. As the appellant was a driver by profession and he sustained the above injury to his right leg, I hold that he was indisposed for a period of six months. 15. In view of the refixation of the notional monthly MACA NO. 2131 OF 2009 6 income of the appellant at Rs.3,000/- per month, I refix his 'loss of earnings' at Rs.18,000/-, instead of Rs.6,000/- awarded by the Tribunal, i.e. an enhancement of Rs.12,000/-. ## **Loss due to disability** 16. Even though the appellant had claimed an amount of Rs.1,23,000/- as compensation of permanent disability and an amount of Rs.25,000/- for compensation for loss of earnings, the appellant failed to produce any material to prove his disability. He also did not mount the box or examine the Doctor who treated him. For want of materials, the Tribunal has rightly declined to award any compensation under the said head. ## **Loss of amenities** 17. The appellant had claimed an amount of Rs.10,000/towards loss of amenities. The Tribunal has awarded only an amount of Rs.8,000/-. 18. Taking into consideration that the appellant was treated as an inpatient for a period of 13 days and that he was indisposed for a period of six months, I hold that the appellant is entitled to an amount of Rs.10,000/- towards 'loss of MACA NO. 2131 OF 2009 7 amenities',i.e, enhancement of Rs.2,000/-. ## **Loss due to pain and sufferings** 19. The appellant had claimed an amount of Rs.25,000/as compensation for pain and sufferings. However, the Tribunal has awarded only an amount of Rs.18,000/-. 20. Considering the nature of injuries sustained by the appellant and that he was indisposed for a period of six months and he was treated as an inpatient for 13 days, I hold that he is entitled to compensation for 'pain and suffering' at Rs.25,000/- as claimed in the claim petition, i.e. enhancement of Rs.7,000/-. 21. With respect to the other heads of compensation, the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed in part by enhancing the compensation by an amount of Rs.21,000/- (i.e. an amount of Rs.12,000/- towards 'loss of earnings', an amount of Rs.2,000/- towards 'loss of amenities' and an amount of Rs.7,000/- towards 'pain and sufferings') with interest @ 7.5% per annum from the date of petition till the date of deposit. The 3[rd] respondent is ordered to deposit the enhanced MACA NO. 2131 OF 2009 **==> picture [7 x 9] intentionally omitted <==** compensation with interest and cost before the Tribunal within a period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation being deposited, the Tribunal shall disburse the enhanced compensation amount to the appellant in accordance with law. Sd/- **C.S.DIAS, JUDGE** rkc