Babeesh v. Shihabudeen M.K, United India Insurance Co. Ltd., Shabeer C.P., C.P. Ibrahim, National Insurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA MONDAY, THE 31[ST] DAY OF JANUARY 2022 / 11TH MAGHA, 1943** **MACA NO. 1990 OF 2009** **AGAINST THE AWARD IN OPMV 376/2003 DATED 26.9.2008 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, WAYANAD, KALPETTA** ## **APPELLANT(PETITIONER):** BABEESH, AGED 23 YEARS, S/O BALAKRISHNAN PUTHIYAVEEDU HOUSE, VEMOM P.O., CHETTAPPALAM,, MANANTHAVADY TALUK, WAYANADU DISTRICT. BY ADV SRI.N.J.ANTONY ## **RESPONDENTS(RESPONDENTS):** 1 SHIHABUDEEN.M.K, AGE NOT KNOWN, S/O.M.K.ANTHRU, MANNANKANDY HOUSE, ANJUKUNNU P.O.,, MANANTHAVADY TALUK., (DRIVER CUM OWNER OF THE MARUTHI VAN NO.KL-11J/4316 D.L.NO.4/310/99W). 2 UNITED INDIA INSURANCE CO.LTD.KALPETTA. (POLICY NO.101601/31/02/05632). 3 SHABEER.C.P. AGE NOT KNOWN, S/O.HAMZA KURIMANNIL HOUSE, MANANTHAVADY P.O., MANANTHAVADY TALUK., (DRIVER OF THE MOTOR CYCLE NO.KL-13G/1680 D.L.NO.55/03/W). 4 C.P.IBRAHIM AGE AND FATHERS NAME NOT KNOWN, 536/10, C.P.HOUSE, P.O.IRIVERI, KANNUR., (OWNER OF THE MOTOR CYCLE NO.KL-13G/1680). 5 NATIONAL INSURANCE COMPANY LTD. KALPETTA., (LOCAL BRANCH OF THE INSURER'S DIVISIONAL OFFICE, BANK ROAD, KANNUR). BY ADVS. SMT.K.C.BEENA SRI.LAL GEORGE SMT K.C BEENA - R2 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.01.2022, THE COURT ON 31.1.2022 DELIVERED THE FOLLOWING:** MACA.No.1990 of 2009 2 ## **JUDGMENT** The appellant is the claimant in OP(MV).376/2003 on the file of Motor Accident Claims Tribunal, Wayanad, Kalpatta. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injury sustained to the appellant/claimant in a motor vehicle accident occurred on 25.07.2003. 2. According to the appellant on 25.07.2003 while he was travelling as a pillion rider in motor cycle bearing registration No.KL-13G/1680 from Mananthavady to Kalpetta ridden by the 3[rd] respondent, and the vehicle reached at Kaloor 5[th] mile near Govt.U.P.School, Maruthi Van bearing registration No.KL-13J/4316 driven by the 1[st] respondent, came rashly and negligently from the opposite direction and dashed against the motor cycle ridden by the appellant. The appellant sustained grievous injuries and he was taken immediately to District Hospital, Mananthavady, from there he was referred to Medical College Hospital, Calicut, as per Exhibit A3. Thereafter, he undergone treatment at Fathima Matha Mission Hospital, Kalpetta. 1[St] respondent is the driver cum owner of the MACA.No.1990 of 2009 3 Maruthi Van. 2[Nd] respondent is the insurer of the offending vehicle. 3. It is alleged that the accident occurred due to the rash and negligent driving of the 1[st] respondent owner cum driver of the van and 2[nd] respondent is the insurer of the Maruthi Van. Respondents 3, 4 and 5 are the rider owner and insurer of the motor cycle, in which the claimant was travelling. 4. Before the Tribunal 3[rd] respondent and 4[th] respondent remained ex-parte. 5. The 1[st] respondent filed written statement contending that the accident occurred due to the rash and negligent riding of the motor cycle by its rider. The claims under various heads are also denied. 2[nd] respondent the insurer filed separate written statement contending that the accident occurred due to the rash and negligent riding of the motor cycle by the rider. The appellant was also put to strict proof regarding the age, occupation and the income alleged in the claim petition. 6. The 5[th] respondent insurance company filed written statement admitting policy coverage of the motor cycle. It is contended that the accident occurred due to the rash and negligent driving of the van by the driver. The claims under various heads are also denied. MACA.No.1990 of 2009 4 7. The claimant was examined as PW1. Exhibits A1 to A8 series were marked from the side of the claimant. 8. The Tribunal after evaluating the evidence and pleadings passed an award of Rs.18,350/- in total. 2[nd] respondent the insurer of the offending vehicle was held liable to make good the loss sustained by the appellant/claimant (herein after be referred as the claimant). 9. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 10. Heard the learned Standing Counsel appeared on behalf of the 2[nd] respondent and 3[rd] respondent as well as the counsel for the claimant. Lower court records were called for and perused. 11. According to the learned counsel for the appellant/claimant, the claimant sustained serious injuries involving the fracture of femur and crush injury (Irregular laceration) on forehead(Lt) along with other lacerations. But a very meager amount of Rs.18,350/- has been awarded by the Tribunal. 12. It is further contended that the claimant undergone inpatient treatment for 13 days in the hospital. In spite of the same MACA.No.1990 of 2009 5 only Rs.5,000/- has been awarded towards pain and suffering and no amount was awarded towards loss of amenities and only meager amount of Rs.500/- awarded towards by stander expenses. So the learned counsel seeks for further enhancement of compensation under various heads. 13. It is also contended that the claimant was an ITI student and the monthly income claimed was Rs.3,000/- and he was 23 years at the time of the accident. But the Tribunal fixed monthly income of Rs.1300/- alone which is very low . 14. The learned counsel for the 2[nd] respondent on the other hand would contend that reasonable and just compensation has already been awarded by Tribunal and no enhancement is called for at the instance of this Court. 15. In this case, the compensation awarded by the tribunal under various heads are as follows: |rious heads are as follows:|| |---|---| |Compensation allowed at<br>different heads|Amount awarded<br>Rs.| |Loss of earnings|1,300-00| |Transport to hospital|500-00| |Extra nourishment|500-00| MACA.No.1990 of 2009 6 |Compensation allowed at<br>different heads|Amount awarded<br>Rs.| |---|---| |Damage to clothing and<br>articles|2,50-00| |By-stander expenses|500-00| |Medical expenses|10,300-00| |Pain and suffering|5,000-00| |Total|18,350-00| 16. To prove the income, claimant got examined himself as PW1. He disclosed his age as 23 years during evidence. According to him he was a Draughtsman (Civil) student cum small business man aged 23 years and was earning monthly income of Rs.3,000/during the time of accident. He was studying for final year at that time. He would also contend that he could write exam only in the year 2005 and for two years the education was discontinued. During cross examination his evidence regarding the drawing of small sketches and raising income has been challenged. That could not be proved by any documents also. However, the fact that he was a student of ITI during the time of accident is not seen disputed. MACA.No.1990 of 2009 7 ## 17. In **National Insurance Co. Ltd. v. Fathimath Zuhara** **@ Zuhra Razak & Another [2016 (3) KLT 459]** a Division Bench has fixed monthly income of an Engineering student who lost her life in an accident on 10.9.2005, notionally fixed at Rs.12,000/-. 18. In **Basanti Devi and Another v. The New India Assurance Co.Ltd. and others** (Civil Appeal Nos.7435-7436 of 2021) the Hon'ble Apex Court fixed the notional monthly income of an Engineering graduate who lost life in an accident occurred on 10.3.2011 at the age of 25 as Rs.20,000/-. 19. In this case the claimant is a student aged 23 years. Though the learned counsel for the respondents would contend that there is no evidence to prove his age Exhibit A7 the SCVT Trade Certificate Industrial Trading Institute Centre, Kalpetta, would go to show that his date of birth is 04.5.1979. Hence, at the time of incident the claim of his age as 23 years is seems to be correct. Hence, following the principles laid down in above cited decisions Rs.3,000/- claimed as monthly income can very well be accepted. 20. The petitioner had undergone treatment from 25.7.2003 to 07.8.2003. Towards pain and suffering the amount awarded by the Tribunal Rs.5,000/-. Exhibit A6, the wound certificate issued from Fathima Matha Mission Hospital, Wayanad, would prove that MACA.No.1990 of 2009 8 ## the appellant/claimant sustained following injuries: _Swelling & deformity of (Lt) thigh. Lacerated wound about 3x2 cm size just below (Lt) eye. Crush injury (Irregular laceration) on forehead(Lt). Contusion (Lt) cheek. Abrasion (Lt) leg Anterior aspect. Laceration 1x1 (Lt) ear lobe. Laceration 1x5 (Lt) thumb._ 21. It would also prove that he has undergone inpatient treatment from 25.7.2007 to 07.8.2003. 22. Taking into account the gravity of injuries and period of treatment, loss of income for 2 months can be given. That will come to Rs.6,000/- (3,000x2). Deducting the amount already awarded, the balance amount would be Rs.4,700/- (6,000-1,300). 23. Towards by-stander expense only Rs.500/- has been awarded. The incident occurred in the year 2003. So notionally the expenses towards by stander expenses can be taken as Rs.200/per day. So towards by-stander expenses the claimant is entitled to get total amount of Rs.2,600/- deducting RS.500/- already awarded the claimant is entitled to get Rs.2,100/- (2,600-500). 24. Towards pain and suffering the Tribunal awarded Rs.5,000/-. The wound certificate would reveal that he was having Crush injury (Irregular laceration) on forehead(Lt) and also lacerated wound about 3x2 cm size just below (Lt) eye and other MACA.No.1990 of 2009 9 lacerated injuries on left ear and left thumb. So taking all those factors into account Rs.5,000/- awarded for pain and suffering is seems to be very low. Hence, enhanced compensation of Rs.10,000/- is fixed, deducting the amount already awarded the claimant is entitled to get enhanced compensation of Rs.5,000/- for pain and suffering. Towards extra nourishment the Tribunal awarded Rs.500/- and an amount of Rs.1,000/- can be granted under that head. Deducting the amount already awarded the claimant is entitled to get Rs.500/- under that head. Damage to clothing and articles the Tribunal awarded Rs.250/- and it can be enhanced as Rs.500/-. Deducting the amount already awarded, the claimant is entitled to get enhanced compensation of Rs.250/(500-250) under that head. Hence, claimant is entitled for an enhanced compensation of Rs.12,550/- (4,700 + 2,100 + 500 + 5,000 + 250). 25. In the result, appeal is allowed in part by enhancing compensation to an amount of **Rs.12,550/- (Rupees twelve thousand five hundred and fifty only)** which will carry interest @ 7.5% per annum from the date of petition excluding the period of delay of 217 days in filing the appeal. 2nd respondent, the Insurance Company, shall satisfy additional compensation granted MACA.No.1990 of 2009 10 in this appeal together with interest within a period of two months from the date of receipt of certified copy of this judgment. The appellant shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. There will be no order as to costs. Sd/- **M.R.ANITHA JUDGE** SMF