Ayisha, Ammad, Hameed, Salam and Ashraf v United India Insurance Co. Ltd.

1 MACA.No.3153 OF 2015 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942** ## **MACA.No.3153 OF 2015(D)** **AGAINST THE AWARD IN OPMV 1678/2013 DATED 04-03-2015 OF THE PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/S:** - **1 AYISHA, AGED 65 YEARS W/O.ABDULLA, 466, PUTHANPURAYIL, MARUTHONKARA, VATAKARA, KOZHIKODE** - **2 AMMAD, AGED 48 YEARS S/O.ABDULLA, 277 A, AKKANTE PARAMBATH, CHANGAROTH, KOYILANDI, KOZHIKODE** - **3 HAMEED, AGED 45 YEARS S/O.ABDULLA, 466(2) 176, PUTHANPURAYIL MARUTHONKARA, ADUKKATH, VATAKARA, KOZHIKODE** - **4 SALAM, AGED 43 YEARS S/O.ABDULLA, 466(157) PUTHANPURAYIL, MARUTHONKARA, VATAKARA, KOZHIKODE** - **5 ASHRAF, AGED 40 YEARS S/O.ABDULLA, 466, PUTHANPURAYIL, MARUTHONKARA, VATAKARA, KOZHIKODE** **BY ADV. SRI.AVM.SALAHUDIN** ## **RESPONDENT/S:** **UNITED INDIA INSURANCE CO. LTD. WHITE LINES, KALLAI ROAD, KOZHIKODE 673001** **R1 BY ADV. SRI.N.S.MOHAMMED USMAN** ## **OTHER PRESENT:** ## **JOHN JOSEPH VETTIKAD SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 5.3.2021, THE COURT ON 05-03-2021 DELIVERED THE FOLLOWING:** 2 MACA.No.3153 OF 2015 ## **C.S.DIAS, J. ====================== MACA No.3153 of 2015 ====================== Dated this the 5[th] day of March, 2021** ## **JUDGMENT** The petitioners in OP (MV) No.1678/2013 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode are the appellants. The third respondent in the claim petition is the respondent in this appeal. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Abdulla, who died in a motor accident on 15.12.2007. 3. The concise case of the petitioners in the claim petition, for the determination of the appeal, is that: On 15.12.2007 while Abdulla (deceased) was walking along the 3 MACA.No.3153 OF 2015 public road near KSEB office at Maruthonkara, a jeep bearing registration No.KL-11-C-2179 (offending vehicle) driven by the second respondent in a rash and negligent manner hit the deceased. The deceased was taken to the Medical College Hospital, Kozhikode where he was treated as an inpatient till 31.12.2007. Even though the deceased was discharged on 31.12.2007, he later succumbed to the injuries on 10.2.2008. The accident occurred due to the negligence of the second respondent. The offending vehicle was owned by the first respondent and insured with the third respondent. Therefore, the respondents are jointly and severally liable to pay compensation to the petitioners. 4. During the pendency of the proceedings, the first respondent - owner of the offending vehicle - died. His legal representatives were impleaded as supplemental respondents 4 to 9. 5. Although the respondents 2 to 9 entered appearance before the Tribunal, only the third respondent filed a written statement. The third respondent admitted the insurance policy but denied its liability. It was the case 4 MACA.No.3153 OF 2015 of the third respondent that the deceased died due to a natural cause. There is no material to prove that the deceased died due to the accident. No postmortem was conducted and the police have not investigated the death of the deceased. Therefore, the petitioners are not entitled for any amount as compensation from the third respondent. 6. The petitioners produced and marked Exts A1 to A6 in evidence. Neither the petitioners nor the respondents let in any oral evidence. 7. The Tribunal, after considering the pleadings and materials on record, allowed the claim petition, in part, by directing the third respondent to pay an amount of Rs.32,299/- to the petitioners as compensation. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in the appeal. 9. Heard the learned counsel appearing for the appellants/petitioners and the learned counsel appearing for the respondent/third respondent – the Insurance Company. 10. The questions that emanate for consideration in this appeal are: 5 MACA.No.3153 OF 2015 (i) whether the Tribunal has committed any error in not granting any compensation on account of the death of the deceased, (ii) whether the compensation awarded by the Tribunal for the injuries sustained by the deceased is just and reasonable. ## **Question No.(i)** 11. The petitioners had contended in the claim petition that the deceased had died on account of the injuries that he sustained in the accident. Only Ext A1 FI statement dated 15.12.2007 was produced to prove the accident. Ext A3 death certificate establishes that the deceased expired on 10.2.2008. Ext A2 wound certificate establishes that the deceased had sustained injuries in the accident. On a reading of Ext A1, it can be gathered that Kuttiyadi Police station had registered crime No.393/2007 against the second respondent for offences punishable under Secs 279 and 337 of the Indian Penal Code. Admittedly, the petitioners had not intimated the police regarding the death of the deceased or conducted the postmortem of the 6 MACA.No.3153 OF 2015 deceased. The deceased passed away on 5.2.2008, nearly two months after the accident, that too after he has discharged from hospital on 31.12.2007. The petitioners also did not let in any oral evidence to assert their contention in the claim petition, that the deceased allegedly died due to the accident. It is after considering all the above relevant materials, that the Tribunal came to a conclusion that the petitioners have not proved that the deceased died on account of the accident. On a reappreciation of the pleadings and materials on record, I do not find any error or illegality in the findings arrived at by the Tribunal. Therefore, question No.(i) is answered against the petitioners. ## **Question No.(ii)** 12. Now coming to the question, whether the compensation awarded by the Tribunal for the injuries sustained by the deceased is reasonable or not. 13. The petitioners had pleaded that the deceased was a coolie worker and he was 48 years at the time of accident. The Tribunal fixed the notional income of the deceased at 7 MACA.No.3153 OF 2015 Rs.1,500/- per month. 14. Going by the well settled principles on notional income laid down by the Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Co.** **Ltd. [(2014) 2 SCC 735],** the Hon'ble Supreme Court has fixed the notional income of a coolie worker at Rs.4,500/per month, in the year 2004 and that of a vegetable vendor at Rs.6,500/- per month, in the year 2006, respectively. ## **Notional Income** 15. Following the parameters in the above decisions, I am of the considered opinion that the deceased's notional income can safely be fixed at Rs.5,000/- per month as the accident occurred in the year 2007, instead of Rs.1,500/per month as fixed by the Tribunal. ## **Loss of earnings** 16. In light of the refixation of the notional income of the deceased and that he was sick for a period of two months, I refix the loss of earnings of the deceased at 8 MACA.No.3153 OF 2015 Rs.10,000/- instead of Rs.4,500/- fixed by the Tribunal. ## **Pain and sufferings** 17. It is seen that the deceased had suffered serious injuries and had undergone craniotomy and evacuation as seen from Ext A5. In the said circumstances, the petitioner is entitled for an amount of Rs.40,000/- towards pain and sufferings as claimed in the claim petition, instead of Rs.15,000/- awarded by the Tribunal. Accordingly, I enhance the compensation under the said head by a further amount of Rs.25,000/-. ## **Other heads of claim** 18. With respect to other heads of claim, namely, transport to hospital, damage to clothing, extra nourishment, bystander expenses, medical expenses and loss of amenities, I find that the Tribunal has awarded reasonable and just compensation to the petitioners. Accordingly, question No.(ii) is answered in favour of the petitioners. 19. On an overall reappreciation of the pleadings, materials on record and the law laid down by the Hon'ble 9 MACA.No.3153 OF 2015 Supreme Court in the aforecited decisions, I am of the considered opinion that the petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |SI<br>No|Head of claim|Amount claimed<br>(in rupees)|Amount<br>awarded by the<br>Tribunal(in<br>rupees)|Amounts<br>modified and re<br>calculated by<br>this Court<br>(in rupees)| |---|---|---|---|---| |1|Loss of earnings|Nil|4,500/-|10,000/-| |2|Transport to hospital|8,000/-|500/-|500/-| |3|Damage to clothing|1,000/-|300/-|300/-| |4|Extra nourishment|9,000/-|500/-|500/-| |5|Bystander expenses|8,000/-|1,700/-|1,700/-| |6|Treatment expenses|10,000/-|4,799/-|4,799/-| |7|Pain and sufferings|40,,000/-|15,000/-|40,000/-| |8|Loss of amenities|Nil|5,000/-|5,000/-| ||Total claim||32,299/-|62,799/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.30,500/- (Rupees Thirty Thousand Five Hundred only) with interest @ of 9% p.a on the enhanced compensation from the date of petition till the date of realisation with proportionate costs. The third respondent shall deposit the additional compensation, awarded in this appeal, before 10 MACA.No.3153 OF 2015 the Tribunal with interest and proportionate costs, within a period of two months from the date of receipt of a certified copy of the judgment. The disbursement of compensation to the appellants/petitioners shall be done, in accordance with law. **Sd/C.S.DIAS JUDGE** **SKS/5.3.2021**