C.O. Savitha v. Pradeep Kumar and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943** ## **MACA NO. 2237 OF 2010** **AGAINST THE AWARD DATED 27.07.2010 IN OPMV 782/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY** ## **APPELLANT/PETITIONER:** C.O.SAVITHA, D/O SREEDHARAN W/O.LATE PRASAD, 31 YEARS, SREVALSAM P.O.,KOTTAYMPOIL BY ADV SRI.MATHEW JOHN (K) ## **RESPONDENTS/RESPONDENTS:** - 1 PRADEEP KUMAR, S/O KUNHIRAMAN NAMBIAR, MOTTALA HOUSE,, P.O..KOTTAYAMPOIL, KUTHUPARAMBA-670691 - 2 THE NEW INDIA ASSURANCE COMPANY LTD KANNUR-670001 - 3 KADEEJA UMMA W/O.LATE ISMAIL NEW HOUSE, P.O.KINYA, VIA UCHILA, MANGALORE TALUK-670001 - 4 K.I.MUHAMMED,S/O.LATE ISMAIL -DO- - 5 RAFEEQUE K.I., S/O.LATE ISMAIL-DO- - 6 IQBAL K.I., S/O.LATE ISMAIL-DO- - 7 NASEER .I. S/O.LATE ISMAIL -DO- 8 RIYAS K.I. **MACA NO. 2237 OF 2010 2** S/O.LATE ISMAIL-DO- - 9 RISWAN K.I.,S/O.LATE ISMAIL -DO- - 10 HALEEMA K.I.,D/O.LATE ISMAIL -DO- - 11 SHEERA K.I.,D/O.LATE ISMAIL-DO- BY ADV SRI.PMM.NAJEEB KHAN **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 2237 OF 2010 3** ## **Dated this the 2[nd] day of March, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.782/2004 on the file of the Motor Accidents Claims Tribunal, Thalasserry. The respondents in the appeal were the respondents 2 to 12 before the Tribunal. The first respondent before the Tribunal had died before the passing of the award. Hence, he is not impleaded as a party in the appeal. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries **MACA NO. 2237 OF 2010 4** sustained to her in an accident on 17.04.2001. It was her case that, while she was travelling in a Tata Sumo bearing registration No. K.A.19/N-698 along with her relatives to Guruvayoor, the vehicle hit against a tree and the petitioner and the other passengers in the vehicle sustained serious injuries. The accident occurred due to the negligence of the second respondent – driver of the Tata Sumo. The petitioner sustained a fracture of acetabulam and was treated as an inpatient for a period of 7 days at the Talassery Co-operative Hospital. The petitioner was an Advocate by profession and practicing at the District Court, Thalassery and was drawing a monthly income of Rs.7500/-. The Tata Sumo was owned by the first respondent and insured with the third respondent. Hence, the petitioner had claimed a compensation of Rs.5,00,000/- from the respondents. 3. The other injured in the same accident and the petitioner, her children and mother in law had filed O.P. ## **MACA NO. 2237 OF 2010 5** (M.V) Nos.778/04, 779/04, 780/04, 781/04, 783/04, 784/04, 785/04 and 786/04, before the same Tribunal, seeking compensation from the respondents. 4. Pending the claim petitions, the first respondent died and his legal representatives were impleaded as supplemental respondents 4 to 12. Only the third respondent contested all the claim petitions. 5. The third respondent had filed separate written statements in all the claim petitions, inter alia, contending that as the first respondent had transferred the vehicle to the second respondent, without intimating the same to the third respondent, the third respondent may be exonerated of its liability. However, the third respondent admitted that the Tata Sumo had a valid insurance coverage. The third respondent also stated that the compensation claimed in all the claim petitions were excessive. 6. The Tribunal consolidated and jointly tried all ## **MACA NO. 2237 OF 2010 6** the claim petitions. 7. The petitioners in all the claim petitions produced and marked Exhibits A1 to A37 in evidence. The third respondent produced the insurance policy, which was marked as Exhibit B1. Exhibits X1 to X6 were summoned and marked in evidence 8. The Tribunal, after analysing the pleadings and materials o record, on the basis of the admission made by PW1- the petitioner’s brother, that the petitioner had secured employment in the Advocate General’s Office, Ernakulam, on compassionate grounds, declined to award any compensation under the head ‘loss of earning capacity’. Even though, she had produced Exhibit X5 disability certificate, the Tribunal, awarded an amount of Rs.33,500/- as compensation with interest and a cost of Rs.500/-. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. ## **MACA NO. 2237 OF 2010 7** 10. Heard; Sri.Mathew John, the learned counsel appearing for the appellant/petitioner and Sri.PMM Najeeb Khan the learned counsel appearing for the second respondent/insurer. 11. The point that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 12. Exhibit A16 FIR registered by the Koyilandy Police in Crime No.152/2001 proves that the accident occurred due to the negligence of the second respondent. The respondents have not let in any evidence to the contrary to discredit Exhibit A16 or to controvert the pleadings and materials on record. Thus, it is proved that the second respondent was negligent in causing the accident. Indisputably, the first respondent was the owner and third respondent was the insurer of the Tata Sumo. The third respondent has also not ## **MACA NO. 2237 OF 2010 8** proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 13. The petitioner had claimed that she was an Advocate by profession and earning a monthly income of Rs.7500/-. For the want of material, the Tribunal fixed the petitioner’s monthly income at Rs.3000/- 14. In **Chameli Devi and others v. Jivrail Mian and others** [2019 KHC 5352], the Honourable Supreme Court has fixed the notional monthly income of a carpenter in the year 2001 at Rs.5000/- 15. Following the yardstick in the afore-cited decision and considering the fact that the petitioner was an Advocate by profession, I hold that the petitioner’s notional monthly income can safely be fixed at Rs.5000/-. ## **MACA NO. 2237 OF 2010 9** ## **Loss of earnings** 16. In view of the fact that the petitioner had suffered a fracture of acetabulam and that she was treated as an inpatient for a period of 7 days, and further the Medical Board has found that she had injury to her hip, I hold that she was indisposed for a period of three months. 17. In view of the re-fixation of the notional monthly income of the petitioner at Rs.5000/-, I award her an amount of Rs.15,000/- under the head ‘loss of earnings’, instead of Rs.3000/-awarded by the Tribunal. ## **Pain and suffering and loss of amenities** 18. The Tribunal has awarded an amount of Rs.15,000/- under the head’ pain and sufferings’ and Rs.10,000/- under the head ‘loss of amenities’. I find the amounts to be on the lower side. 19. On a consideration that the petitioner had sustained a fracture of the acetabulam, that she was ## **MACA NO. 2237 OF 2010 10** treated as an inpatient for a period of 7 days, and that she was indisposed for a period of three months, I hold that she is entitled to a further amount of Rs.10,000/under the head ‘pain and sufferings’ and a further amount of Rs.5,000/- under the head ‘loss of amenities’. 20. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.27,000 **/-** (Rs.12000/- towards ‘loss of earnings’, Rs.10,000/- under the head ‘pain and suffering’ and Rs.5000/- under the head ‘loss of amenities’) with interest at the rate of 6% per annum from the date of petition till the date of deposit, and a cost of Rs.3,000/-. The third respondent-insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt **MACA NO. 2237 OF 2010 11** of a certified copy of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** rmm/03/03/2022