Ayisha v. N.K. Sisupalan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 22[ND] DAY OF JUNE 2021 / 1ST ASHADHA, 1943 MACA NO. 1908 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 193/2003 OF THE PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** **APPELLANT/S:** AYISHA, W/O.ALIKOYA, AGED 29 YEARS CHERUKINARI HOUSE, KOLAKKAD POST,, VIA ATHOLI, KOZHIKODE. BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN ## **RESPONDENT/S:** 1 N.K.SISUPALAN , S/O.CHOYIKUTTY NELLIKODAN VEEDU, MATHUA POST,, VAZHIKADAVE, MALAPPURAM. 2 THE NATIONAL INSURANCE CO.LTD. DIVISIONAL OFFICE, NEAR COMPLEX,, MAVOOR ROAD, NR.ARAYIDATHPALAM, KOZHIKODE. 3 KUNHIMUHAMMED, S/O. RAYIN, PALAKKAL HOUSE, KOOTTIL POST, CHERIYAM, MALAPPURAM. 4 THE ORIENTAL INSURANCE CO.LTD. JASEELA COMPLEX, NILAMBUR ROAD,, MALAPPURAM. BY ADVS. SRI.P.JACOB MATHEW SRI.JOE KALLIATH **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1908 of 2009 ## **C.S.DIAS, J. ====================== MACA No.1908 of 2009** ## **====================== Dated this the 22[nd] day of June, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.193/2003 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents in the claim petition. 2. The relevant facts in the claim petition, for the determination of the appeal, are: On 26.10.2002, while the petitioner was travelling in a bus bearing registration No.KL-10/K 3510, which was owned by the first respondent and insured with the second respondent, the bus had an head on collision with another bus bearing registration No.KL-10/N 3504 owned by the third respondent and insured with the fourth respondent. The petitioner sustained serious injuries in the accident and was treated 3 MACA No.1908 of 2009 at the Medical College Hospital, Kozhikode, where she was admitted as inpatient from 26.10.2002 to 20.11.2002. Subsequently, she was treated as an outpatient and is still continuing active treatment. The accident occurred due to the rash and negligent driving of the buses by both the drivers. The respondents are jointly and severally liable to compensate the petitioner for the injuries sustained by her. The petitioner was 24 years of age and was a coolie worker earning a monthly income of Rs.4,000/- per month. The petitioner was entitled for compensation, which she quantified at Rs.3,75,000/-, but limited to Rs.2,00,000/-. 3. The respondents 2 and 4 had filed separate written statements admitting the insurance policies of both the vehicles, but put the blame on the drivers of the rival vehicles for causing the accident. 4 MACA No.1908 of 2009 4. The appellant produced and marked Exts A1 to A4 series in evidence. 5. The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claim petition in part by directing the respondents 2 and 4 to pay a total amount of Rs.16,500/- to be equally paid to the petitioner with interest @ 7% per annum from 24.1.2003. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal 7. Heard the learned counsel appearing for the appellant and the respective learned counsel appearing for the respondents 2 and 4. 8. 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 5 MACA No.1908 of 2009 foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 9. Ext A1 FIR would substantiate that the accident occurred due to the rashness and negligence on the part of both the drivers of the offending vehicles. It is seen from the written statement filed by the second respondent, that the Police after investigation had filed A and B charges as against the drivers of both the vehicles for rash and negligent driving of the vehicles. Hence, the owners of the vehicles – respondents 1 and 3 are liable to compensate the petitioner. In light of the fact that the vehicles were insured with the respondents 2 and 4, it is the said respondents who are liable to indemnify the respondents 1 and 3 and thereby pay the compensation. 6 MACA No.1908 of 2009 10. Now coming to the question of quantum of compensation awarded by the Tribunal. 11. It is seen that even though the Tribunal had allowed an application, to get the petitioner examined by a Medial Board, she did not appear before the Medical Board. Hence, her disability was not assessed. In the said circumstances, the Tribunal ordered the reimbursement of the actual expenditure incurred by the petitioner for her medical treatment at Rs.2,000/- as per Ext A3 series medical bills and incidental charges of Rs.1,500/-. The Tribunal also awarded compensation under the heads pain and sufferings at Rs.6,500/-, loss of amenities at Rs.3,000/-, loss of income at Rs.3,000/- and transportation at Rs.500/totalling to Rs.16,500/-. 12. It is not disputed that the petitioner was a coolie worker. 7 MACA No.1908 of 2009 13. 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 at Rs.4,500/- per month in the year 2004. 14. The petitioner had claimed that she was a coolie earning Rs.4,000/- per month. However, the Tribunal had fixed her income at Rs.3,000/-. In view of the law laid down in the aforecited decision, I re-fix the notional income of the petitioner at Rs.4,000/- per month. 15. Going by Ext A4 series OP tickets and reference card, it is seen that the petitioner had suffered 1/3rd of (R) humerus fracture. Similarly she was hospitalized for a period of 24 days from 26.10.2002 to 20.11.2002. In such circumstances, I am of the definite opinion that the petitioner is entitled for compensation under the head pain 8 MACA No.1908 of 2009 and sufferings at Rs.400/- per day, i.e., a total of Rs.9,600/instead of Rs.6,500/- awarded by the Tribunal. Similarly, as the petitioner was a coolie worker and she had suffered a fracture, certainly, she was disabled from carrying on her avocation for a period of three months. In light of the refixation of the notional income of the petitioner at Rs.4,000/- per month, I refix the loss of income of the petitioner at Rs.12,000/- instead of Rs.3,000/-. 16. With respect to the other heads of claim, particularly the fact that the petitioner had not assessed her disability, I find that the amount fixed by the Tribunal under the other heads as reasonable and just. In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.12,100/- (Rupees Twelve Thousand One Hundred only) with interest @ 7% per annum on the enhanced compensation from the date of claim petition till the date of deposit with proportionate costs. The respondents 2 9 MACA No.1908 of 2009 and 4 shall deposit the additional compensation awarded in the appeal before 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 petitioner would be at liberty to move the Tribunal for withdrawal of the deposited amount. ## **Sd/-** Sks/22.6.2021 **C.S.DIAS JUDGE**