Ashraf v. Muhammed Kabeer and ors.

1 MACA No.2435 of 2009 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 3[RD] DAY OF FEBRUARY 2022 / 14TH MAGHA, 1943 MACA NO. 2435 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 562/2005 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA** ## **APPELLANT/S:** ASHRAF, S/O.BEERANKUTTY AGED 29 YEARS, VATHIRATH HOUSE,, THRIKKADARI P.O., OTTAPPALAM, PALAKKAD. BY ADV SRI.JESWIN P.VARGHESE ## **RESPONDENT/S:** 1 MUHAMMED KABEER S/O. HAMSA, THOTTIYIL HOUSE, THRIKKADARI P.O.,, KIZHOOR ROAD, OTTAPPALAM, PALAKKAD. 2 T. RASHEED AGED 52 YEARS S/O. MUHAMMED, THALIYANTHODI HOUSE,, PANAMANNA P.O., OTTAPPALAM, PALAKKAD. 3 THE BRANCH MANAGER M/S ORIENTAL INSURANCE CO. LTD.,, PRANAVAM, MELA PATTAMBI, PATTAMBI P.O., PALAKKAD. BY ADV SRI.GEORGE CHERIAN THIRUVALLA **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 03.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2435 of 2009 ## **C.S.DIAS, J.** ## **====================== MACA No.2435 of 2009** ## **====================== Dated this the 3rd day of February, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.562/2005 on the file of the Motor Accident Claims Tribunal, Kalpetta. 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 sustained to him in an accident on 7.2.2005. He has averred in the claim petition that, on the above said date, while he was travelling in a jeep bearing registration No.KL-10/P 3227 from Thrikkederi to Meppady, the first respondent suddenly applied the brakes of the jeep in a negligent manner and the appellant was thrown onto the road and suffered 3 MACA No.2435 of 2009 multiple injuries including a fracture of shaft of humorous right. He was treated as an inpatient for a period of 4 days at the Al-Shifa Hospital. The second respondent was the owner and the third respondent was the insurer of the jeep. The appellant was a driver by profession and was earning a monthly income of Rs.3,000/-. Hence, the appellant claimed a compensation of Rs.2,75,500/- from the respondents, which claim was limited to Rs.1,50,000/-. 3. The respondents 1 and 2 did not contest the proceeding and were set ex parte. 4. The third respondent/insurer had filed a written statement admitting that the jeep had a valid insurance coverage. It was also stated that, as the appellant was the owner of the jeep, he was not entitled to compensation. The third respondent also disputed the age, income and occupation of the appellant. 4 MACA No.2435 of 2009 5. The appellant's father was examined as PW1 and Exts A1 to A7 were marked in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to recover from the third respondent an amount of Rs.45,500/- with interest @ 6% per annum from the date of claim petition till the date of realization and proportionate cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.Jeswin P.Varghese, the learned counsel appearing for the appellant/petitioner and Smt.K.S Santhi, the learned counsel appearing for the third respondent/insurer. 9. The sole point that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 5 MACA No.2435 of 2009 ## **Negligence and liability** 10. Ext A6 charge-sheet laid by the Kalpetta Police in crime No.58/2005 proves that the accident occurred due to the negligence of the first respondent. Indisputably, the second respondent was the owner and the third respondent was the insurer of the jeep. The respondents have not let in any evidence to discredit Ext A6 charge-sheet. The third respondent has also not proved that the second respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Income and loss of earnings** 11. The appellant had claimed that he was a driver by profession and was earning a monthly income of Rs.3,000/-. For the want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.2,100/-. 6 MACA No.2435 of 2009 12. 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. 13. Following the yardstick in the above-cited decision, and considering the fact that the accident occurred in the year 2005, I award the appellant an amount of **Rs.9,000/-** under the head 'loss of earnings' , i.e. an enhancement of Rs.8,000/-. ## **Bystander expenses and Extra Nourishment** 14. The appellant was treated as an inpatient for a period of 4 days. Taking into account the fact that the accident occurred in the year 2005, I award the appellant an amount of Rs.400/- per day for a period of four days, which works out to **Rs.1,600/-** , i.e., an enhancement of Rs.1,100/- and an amount of Rs.200/per day for a period of 4 days towards extra 7 MACA No.2435 of 2009 nourishment, which amounts to **Rs.800/-** , i.e. an enhancement of Rs.300/- **.** ## **Pain and sufferings and Loss of amenities** 15. Although the appellant had claimed Rs.50,000/- each under the above two heads, the Tribunal awarded only an amount of Rs.5,000/- under the head 'pain and sufferings'. I find the same to be on the lower side. 16. Taking note of the fact that the appellant was indisposed for a period of three months and that he was treated as an inpatient for a period of four days, I award him a further amount of **Rs.15,000/-** under the head 'pain and sufferings' and an amount of **Rs.10,000/-** under the head 'loss of amenities'. ## **Other heads of compensation** 17. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 8 MACA No.2435 of 2009 In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of **Rs.34,400/-** (Rupees Thirty Four Thousand Four Hundred only) ( i.e. Rs.8,000/- towards loss of earnings + Rs.1100/- towards bystander expenses + Rs.300/- towards extra nourishment + Rs.15,000/towards pain and sufferings + Rs.10,000/- towards loss of amenities) with interest at the rate of 6% per annum on the enhanced compensation from the date of claim petition till the date of realisation, after deducting interest for a period of 69 days, i.e., the period of delay in filing the appeal and as ordered by this Court on 26.10.2021 in C.M Appln No.1/2009, and a cost of Rs.5,000/-. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the 9 MACA No.2435 of 2009 judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant /petitioner, in accordance with law. SD/- sks/1.2.2022 **C.S.DIAS, JUDGE**