Biju George v. T.M. Muhammed Basheer and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 16[TH] DAY OF JULY 2021 / 25TH ASHADHA, 1943** ## **MACA NO. 1949 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 784/2007 OF MOTOR ACCIDENT CLAIMS** **TRIBUNAL, PALA, KOTTAYAM** ## **APPELLANT/PETITIONER:** **BIJU GEORGE, KOOTUNKAL HOUSE, MALAYIRUTHY, KOZHUVANAL. BY ADV SRI.JOSEKUTTY MATHEW** ## **RESPONDENTS/RESPONDENTS:** |**1**|**T.M.MUHAMMED BASHEER**| |---|---| ||**MUKKUNAPPARAMBIL HOUSE,**| ||**H.NO.415, WARD VII, KANJIRAPPALLY-686 507.**| |**2**|**BIBIN S/O.CHACKO,**| ||**KUMPICKAL HOUSE,**| ||**KIZHAKKUMBHAGOM,, ETTUMANOOR-686 631.**| |**3**|**THE NEW INDIA ASSURANCE CO.LTD.**| ||**PERUMPAVOOR-683 542.**| ||**BY ADV SMT.P.K.SANTHAMMA**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **16.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO. 1949 OF 2010 **2** ## **JUDGMENT** The appellant was the petitioner in O.P.(MV) No.784 of 2007 on the file of the Motor Accidents Claims Tribunal, Pala. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief, relevant for the determination of the appeal, are: on 28.01.2007, while the appellant was traveling pillion on a scooter through the Ettumanoor-Pala road, an autorickshaw bearing registration No.KL-5G/1221 (offending vehicle) came from the opposite side and hit the scooter. The appellant fell down and sustained injuries, including a fracture naso, a fronto ethmoid complex, fracture maxilla (L) and comminuted fracture nasal bone. He was treated at the Medical College Hospital, Kottayam and, thereafter, referred to the Matha Hospital, Thellakam for a period of 8 days. The appellant was 33 years of age and was employed in the MACA NO. 1949 OF 2010 **2** Shakthi Hotel, Kottayam and drawing a monthly income of Rs.6,000/-. It was contended that the accident occurred solely on account of the rash and negligent driving of the autorickshaw by the 2[nd] respondent. The 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the offending vehicle. Hence the appellant claimed a compensation of Rs.2,00,000/- from the respondents. 3. The 2[nd] respondent did not contest the proceedings and was set ex-parte. 4. The 1[st] respondent filed a written statement disputing the age, income and the nature of injuries sustained by the appellant. It was also contended that the amount of compensation claimed was excessive, that the accident occurred on account of the negligence of the appellant, but the offending vehicle had a valid insurance coverage. 5. The 3[rd] respondent filed a written statement MACA NO. 1949 OF 2010 **2** admitting that the offending vehicle had a valid insurance coverage, but it was disputed that the 2[nd] respondent had a valid driving license at the time of accident. It was also contended that the offending vehicle did not have a valid fitness certificate. 6. The appellant produced and marked Exts.A1 to A9 in evidence. The 3[rd] respondent produced a copy of the insurance policy which was marked as Ext.B1. 7. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition in part by permitting the appellant to realize an amount of Rs.79,550/with interest @ of 9% per annum from the date of petition till the date of realisation with cost of Rs.1,990/-. The 3[rd] respondent was directed to pay the compensation amount and recover the amount from respondents 1 and 2 as the offending vehicle did not hold a valid fitness certificate and the 2[nd] MACA NO. 1949 OF 2010 **2** respondent did not hold a valid driving license. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the 3[rd] respondent/insurance company. 10. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 11. Ext.A4 final report filed by the Police after investigation substantiates that the accident occurred solely on account of the negligence of the 2[nd] respondent, who drove the offending vehicle in a negligent manner. Undisputedly, the 1[st] respondent was the owner of the vehicle and 3[rd] respondent was the insurer of the vehicle. Therefore, it is the 3[rd] respondent who is liable to MACA NO. 1949 OF 2010 **2** indemnify the 1[st] respondent, provided the 1[st] respondent had complied with the conditions of the insurance policy. 12. Although the 3[rd] respondent had raised a contention that 2[nd] respondent did not hold a valid driving license and the offending vehicle did not have a valid fitness certificate, the respondent1 and 2 did not produce the above said documents to disprove the contentions of the 3[rd] respondent. Accordingly, the Tribunal rightly arrived at a conclusion that the 1[st] respondent had violated the policy conditions. Accordingly, the Tribunal gave the 3[rd] respondent the right to pay the compensation and recover it from the 1[st] respondent/owner of the offending vehicle. 13. The appellant had claimed that he was employed in Shakthi Hotel, Kottayam and earning a monthly income of Rs.6,000/-. True, the appellant did not produce any document to substantiate the same. The Tribunal fixed the MACA NO. 1949 OF 2010 **2** notional income of the appellant at Rs.3,000/-, after deducting his personal expenses. 14. In **Ramachandrappa vs. Manager, Royal** : **Sundaram Alliance Insruance Company Ltd.** - (2011) 13 SCC 236 , the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. It was further observed that the notional income has to be increased at Rs.500/- every year. 15. Following the ratio in the afore-cited decision - and taking note of the fact that the accident occurred in the year 2007, I am of the opinion that the appellant is entitled to get his income fixed at Rs.6,000/- as claimed in the claim petition. Therefore, I fix the notional income of the appellant at Rs.6,000/- per month. ## **Loss of earnings** 16. Ext.A3 wound certificate and A6 discharge summary prove that the appellant had sustained fractures on his face. The Tribunal itself found MACA NO. 1949 OF 2010 **2** that the appellant was incapacitated for a period of four months. In view of the said finding and in view of the re-fixation of the notional income of the appellant at Rs.6,000/- per month, I refix his loss of earning at Rs.24,000/- i.e., an enhancement by an amount of Rs.12,000/-. ## **Bystander expenses** 17. It is on record that the appellant was treated as an inpatient in two hospitals for eight days. The Tribunal awarded only an amount of Rs.800/- towards the bystander expenses. Taking into account that the accident was in the year 2007, I am of the opinion that Rs.200/- per day has to be awarded as bystander expenses. Accordingly I enhance the compensation by a further amount of Rs.800/-. ## **Compensation for pain and sufferings and loss of amenities.** 18. The appellant had claimed an amount of Rs.30,000/- for compensation under the head of MACA NO. 1949 OF 2010 **2** pain and sufferings and Rs.10,000/- as compensation for loss of amenities. The Tribunal awarded an amount of Rs.18,000/- and Rs.6,000/-, respectively, under the aforesaid heads. 19. Taking note of the injuries that the appellant had sustained in the accident and that he had disfigurement on his face, I hold that the compensation has to be enhanced by a further amount of Rs.6,000/-under the aforesaid heads, namely, Rs.2,000/- under the head pain and sufferings and Rs.4,000/- under the head loss of amenities. 20. With respect to the other heads of compensation I find that the Tribunal has awarded reasonable and just compensation. 21. On an overall re-appreciation of the pleadings and materials on record, and the law referred to in the above-cited decision, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as MACA NO. 1949 OF 2010 **2** modified and re-calculated i.e., by a total amount of Rs.18,800/- namely, Rs.12,000/- under the head loss of earning, Rs.800/- towards bystanders expenses, Rs.2,000/- towards compensation for pain and sufferings and Rs.4,000/- towards the loss of amenities. 22. In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.18,800/- with interest at the rate of 6% per annum on the enhanced compensation from the date of petition till the date of deposit, after deducting the period of 278 days i.e., the period of delay in preferring the appeal, as ordered by this Court on 24.03.2021 in C.M.Appln.No.1 of 2010, and proportionate costs. The 3[rd] respondent shall deposit the enhanced compensation with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. The 3[rd] respondent is also permitted to recover MACA NO. 1949 OF 2010 **2** the entire amount deposited as per this judgment from respondents 1and 2. The Tribunal shall disburse the enhanced compensation to the appellant in accordance with law. **Sd/-** **C.S.DIAS, JUDGE** AMV/19/07//2021