Beena and Others v. Jijeesh S/o Purushothaman and Abdul Nazer So. Mohammed Bava and The Oriental Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943** ## **MACA.No.1705 OF 2010(C)** **AGAINST THE AWARD IN OPMV 1211/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI** ## **APPELLANTS:** |**1**|**BEENA**| |---|---| ||**AGED 19 YEARS**| ||**W/O LATE SHANMUGHAN**| ||**THIRUNILATH HOUSE,**| ||**THEYYALA,**| ||**TIRURANGADI TALUK,,**| ||**NANNAMBRA,**| ||**MALAPPURAM DISTRICT.**| |**2**|**SHYAMJITH MINOR REPRESENTED BY**| ||**MOTHER - THE FIRST APPELLANT.**| |**3**|**SHABIJITH MINOR REPRESENTED BY**| ||**MOTHER - THE FIRST APPELLANT.**| |**4**|**AMMUNNI WO. AYYAPPAN**| ||**THIRUNILATH HOUSE, THEYYALA,**| ||**TIRURANGADI TALUK,,**| ||**NANNAMBRA,**| ||**MALAPPURAM DISTRICT.**| ||**BY ADVS.**| ||**SRI.BABU S. NAIR**| ||**SRI.K.RAKESH**| ## **RESPONDENTS:** |**1**|**JIJESH S/O PURUSHOTHAMAN**| |---|---| ||**PARAKKUNDU HOUSE,**| ||**K.PURAM, TANUR,,**| ||**MALAPPURAM DISTRICT.**| |**2**|**ABDUL NAZER SO. MOHAMMED BAVA**| ||**KOLADI HOUSE,**| ||**MEENADATHUR,**| ||**THANALUR P.O.,,**| ||**MALAPPURAM.**| **MACA.No.1705 OF 2010(C)** **2** ## **3 THE ORIENTAL INSURANCE COMPANY LTD. MANJERI, MALAPPURAM DISTRICT.** **R3 BY ADV. SMT.K.S.SANTHI** ## **OTHER PRESENT:** ## **SMT.K.S.SANTHI, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-04-2021, THE COURT ON 08-04-2021 DELIVERED THE FOLLOWING:** **MACA.No.1705 OF 2010(C)** **3** ## **P.V.KUNHIKRISHNAN, J. =================== MACA No. 1705 OF 2010 =================== Dated this the 8[th] day of April 2021** ## **J U D G M E N T** Appellants are the legal heirs of deceased-1st petitioner in O.P (MV) No.1211/2005 on the file of the Motor Accidents Claims Tribunal, Manjeri. It was a claim petition filed by the original deceased-1[st] petitioner under Section 166 of the Motor Vehicles Act, 1988. Pending the claim petition the original 1[st] petitioner died and appellants 2 to 5 were impleaded as additional petitioners before the Tribunal. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal). 2. The short facts are like this:- On 01.04.2005 at about 10 hours while the deceased-1st petitioner was travelling on a motor cycle **MACA.No.1705 OF 2010(C)** **4** bearing Registration No. KL 11/6913 as a pillion rider from Theyyala to Tanur Side. At that time a jeep bearing Registration No. KL 10 D 9862 driven by the first respondent came from the opposite side and dashed against the Motor Cycle. As a result of the accident, the deceased-1st petitioner was thrown out from the motor cycle and he sustained grievous injuries. After the incident he was taken to Medical College Hospital, Kozhikkode and admitted there. He was unconscious due to head injury. According to the petitioners, the accident occurred due to the rash and negligent driving by the 1[st] respondent. The petitioners contended that all respondents are jointly and severally liable to to pay compensation. 3. To substantiate the case Exts. A1 to A10 were marked on the side of the petitioners. After going through the evidence and documents, the Tribunal fixed the compensation as Rs.84,138/-, with interest at the rate of 7% per annum from the date of application till realization. **MACA.No.1705 OF 2010(C)** **5** Aggrieved by the quantum of compensation this appeal is filed. 4. Heard the learned counsel for the petitioners and the learned counsel for the 3[rd] respondent. 5. The learned counsel for the petitioners submitted that, the 1[st] petitioner died because of the injury sustained to him in the accident. This was strongly objected by the learned counsel for the 3[rd] respondent. I perused the impugned award. In the award, the Tribunal considered the matter in detail, after perusing the findings in the post mortem certificate. In the post mortem certificate, the death of the 1[st] petitioner was occurred due to the aspiration of stomach contents into air passages. There was no other oral evidence to support the case that the 1[st] petitioner died, due to the injury sustained to him in the accident. The alleged accident occurred on 01.04.2005 and the 1[st] petitioner died on 29.09.2006. There is nothing to interfere with the above findings by the tribunal. Then the **MACA.No.1705 OF 2010(C)** **6** learned counsel submitted that, the compensation awarded by the Tribunal is on a lower side. The learned counsel submitted that, the petitioner was a mason and he was getting a monthly income of Rs.6,000/-. The Tribunal fixed the monthly income as Rs.2,500/-. There is some force in the argument of the learned counsel for the petitioners. Admittedly, the accident occurred in the year 2005. In _**Ramachandrappa v. The Manager, Royal Sundaram [2011(13) SCC 236],**_ the Apex Court fixed an amount of Rs.4500/- as monthly income to a coolie in the year 2004. Taking the dictum in the above decision, this Court can safely fix the monthly income of the deceased as Rs.5,000/- per month. Consequently, the petitioners are entitled more amount towards loss of earning. The Tribunal assessed the compensation for loss of earning for 12 months taking as Rs. 2,500/- as monthly income. Now the above amount is to be reassessed in the following manner:- **MACA.No.1705 OF 2010(C)** **7** ## Rs.5,000 X 12 = **Rs.60,000/-** 6. An amount of Rs.30,000/- is already given by the Tribunal and that is to be deducted from the above amount. The balance amount will be **Rs.30,000/-** (Rs.60,000-30,000 =Rs.30,000/-). 7. The Tribunal granted an amount of Rs.7,800/- as bystanders expense. This was assessed for a period of 78 days at the rate of Rs.100/-. The accident occurred in the year 2005. I think, the daily wages of the bystanders can be fixed as Rs.200/- instead of Rs.100. If that is the case, the petitioners are entitled an additional amount of **Rs.7,800/-** towards bystanders expense. No amount is awarded by the Tribunal for extra nourishment. The petitioners are entitled an amount of **Rs.1,000/-** more in that head. Towards pain and suffering the tribunal awarded only an amount of Rs.20,000/-. The petitioners sustained serious injuries including fracture (Arm frontal bone). Considering the serious nature of the injury, the petitioners **MACA.No.1705 OF 2010(C)** **8** are entitled an additional amount of **Rs. 5,000/-** towards pain and suffering. 8. In the light of the above discussion, the enhanced compensation entitled by the appellants can be summarized like this: 1. Loss of earning - Rs.30,000/- 2. Bystanders expense - Rs.7,800/- 3. Extra nourishment - Rs.1,000 3. Pain and suffering - Rs.5,000/- ------------------ **Total Rs.43,800/-** == ======== 9. The appellants are entitled an enhanced compensation of Rs.43,800/- (Rupees Forty three Thousand Eight Hundred Only) with interest @ 7% per annum from the date of application till realisation. In the result, the appeal is allowed in part. The impugned award is modified. The petitioners are entitled an enhanced compensation of Rs.43,800/- (Rupees Forty three Thousand Eight Hundred Only) with interest @ 7% **MACA.No.1705 OF 2010(C)** **9** p.a from the date of application till realisation. The 3[rd] respondent is directed to pay the enhanced compensation with interest to the petitioners. **(Sd/-) P.V.KUNHIKRISHNAN JUDGE** LU