B.K. Muhammed Salih v. T.K. Sindhu, Salim Sikandar and The National Insurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 12[TH] DAY OF JULY 2021 / 21ST ASHADHA, 1943 MACA NO. 637 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 1050/2003 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER:** B.K.MUHAMMED SALIH, AGED 55, S/O.HAMEED, ROSE VILLA, VATTAKOM PARAMBA, FRANCIS ROAD P.O., CHALAPPURAM, KOZHIKODE. BY ADV SRI.R.BINDU (SASTHAMANGALAM) ## **RESPONDENTS/RESPONDENTS:** 1 T.K.SINDHU,DEVEARKANDY HOUSE, VALIYATHODI PARAMBA, P.O.ARTS COLLEGE,, KOZHIKODE. 2 SALIM SIKANDAR, S/O.JABBAR, KALATHODI HOUSE, KALLAI P.O., PANNIYAMKARA, KOZHIKODE. 3 THE NATIONAL INSURANCE COMPANY LTD. NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE. BY ADVS. K.S.SANTHI GEORGE CHERIAN (SR.) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 637 OF 2009 2** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1050 of 2003 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. 2. The brief facts, relevant for the determination of the appeal, are: on 17.1.2003, while the appellant was walking through the Kallai road, Kozhikode, an autorickshaw bearing Reg.No.KL.11/Q-4799 (offending vehicle) driven by the 2[nd] respondent in a rash and negligent manner hit the appellant. The appellant sustained serious injuries and was treated as an inpatient at the PVS Hospital, Kozhikode from 17.1.2003 to 27.1.2003. The appellant sustained an inter hemisphiric bleed with superasellar bleed. The vehicle was owned by the 1[st] respondent and insured with the 3[rd] respondent. **MACA NO. 637 OF 2009 3** The appellant was a fish merchant by profession and earning a monthly income of Rs.5,000/-. The appellant claimed compensation from the respondents, which he quantified at Rs.2,46,500/-, but limited to Rs.2,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings. The 3[rd] respondent filed a written statement admitting that the vehicle had a valid insurance policy. All the other averments in the claim petition were disputed. 4. The appellant produced and marked Exts.A1 to A5 series in evidence. 5. 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 realise an amount of Rs.29,500/- with interest @ 7% per annum from the date of filing of the claim petition till the date of realization. A cost of Rs.200/- was also granted. **MACA NO. 637 OF 2009 4** The 3rd respondent was directed to pay the compensation amount. 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/petitioner and the learned counsel appearing for the 3[rd] respondent. 8. The sole question that emanates for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 9. 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 foundation of fairness, reasonableness and **MACA NO. 637 OF 2009 5** equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equitability. 10. As per Ext.A1 wound certificate and Ext.A2 FIR, it is seen that it was the 2[nd] respondent who was negligent in causing the accident. Undisputedly, the 1[st] respondent was the owner of the vehicle and the 3[rd] respondent was the insurer of the vehicle. Therefore, the 3[rd] respondent is liable to indemnify the liability of the 1[st] respondent in paying the compensation on account of the accident. 11. The appellant had claimed that he was a fish merchant by profession earning a monthly income of Rs.5,000/-. Nevertheless, the Tribunal, fixed the notional income of the appellant is Rs.1,500/-. ## **Notional Income** ## **MACA NO. 637 OF 2009 6** 12. The Hon'ble Supreme Court in _**Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd., (2011 (13) SCC 236),**_ the Hon'ble Supreme Court has fixed the notional income of a Coolie Worker in the year 2004 at Rs.4,500 per month. 13. Following the parameters laid down in the aforecited decision and considering that the accident occurred in the year 2003, I refix the notional income of the petitioner at Rs.4,000/- per month. ## **Medical expenses** 14. The appellant had produced Ext.A5 series medical bills to substantiate that he had expended an amount of Rs.15,523/-. Nevertheless, the Tribunal on the basis of the objection raised by the learned counsel appearing for the 3[rd] respondent disallowed an amount of Rs.5,500/-, on the ground that the bills were only **MACA NO. 637 OF 2009 7** computer printed bills lacking authentication. The said course, according to me, is erroneous. It is a known fact that, in the present era medical bills are all issued through computer printouts, which are not necessarily sealed and signed. On verification of the bills, I do not find any suspicious circumstances to doubt the genuinty of the bills. Therefore, I set aside the said finding and hold that the appellant is entitled for remaining amount of Rs.5,500/- also as per Ext.A5 series bills. ## **Loss of earnings** 15. In view of the refixation of the notional income of the appellant at Rs.4,000/- per month and considering that he was incapacitated for a period of three months, as held by the Tribunal, I refix his loss of income at Rs.12,000/- instead of Rs.4,500/- awarded by the Tribunal. i.e., an enhancement of Rs.7,500/- ## **Loss of amenities** **MACA NO. 637 OF 2009 8** 16. As per Ext.A1 wound certificate and Ext.A3 CT Scan report, the appellant had sustained a head injury and was required prolonged treatment. Ext.A3 CT Scan report shows that he had an internal bleeding to the appellant and that he was hospitalised for a period of 10 days. Thus, I am of the opinion that the appellant is entitled for loss of amenities at Rs.10,000/- as claimed for in the claim petition, instead of Rs.3,000/- awarded by the Tribunal, i.e., an enhancement by a further amount of Rs.7,000/-. 17. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 18. On an over all re-appreciation of the pleadings and materials on record, the law laid down in the aforecited decisions, I hold that the appellant is entitled for enhancement of compensation by a further amount of **MACA NO. 637 OF 2009 9** Rs.20,000/-, i.e., Rs.5,500/- towards medical treatment, Rs.7,000/- towards loss of amenities and Rs.7,500/towards loss of income. In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.20,000/- with interest at the rate of 7% per annum on the enhanced compensation from the date of petition till the date of deposit. 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 this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** pm