Gangadharan P. v. Haris, Fassal M. and New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 1[ST] DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943** ## **MACA NO. 1868 OF 2011** **AGAINST THE AWARD DATED 26.05.2011 IN OPMV 1258/2008 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL VADAKARA** ## **APPELLANT/PETITIONER:** GANGADHARAN.P, S/O SANKARAN NAMBIAR, AGED 52 YEARS, PARAMBATH HOUSE,, P.O.CHORODE, VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADVS. SRI.R.PARTHASARATHY SMT.SEEMA ## **RESPONDENTS/RESPONDENTS:** 1 HARIS, S/O HAMEED, V.P.HOUSE, CHALIL KEYIS LINE,, P.O.TEMPLE GATE, THALASSERY, KANNUR DISTRICT. 2 FASSAL.M S/O.K.P.MAMMOOTTY AGED 26 YEARS, K.P.HOUSE, MATTAMBRAM,, THALASSERY, KANNUR DISTRICT. 3 MS.NEW INDIA ASSURANCE COMPANY LTD MUNICIPAL SHOPPING COMPLEX,, M.G.ROAD, THALASSERY, KANNUR DISTRICT. BY ADV P.K.BABU ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION** **ON 01.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **MACA NO. 1868 OF 2011 2** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1258/2008 on the file of the Motor Accidents Claims Tribunal, Vatakara. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 20.07.2008. It was his case that, on the aforesaid date, while he was riding pillion on a motorcycle bearing registration No. KL 18 D 4039 along the Kainatty road, another motorcycle bearing registration No. KL 58 A 5852 (offending motorcycle), driven by the second respondent in a rash and negligent manner, hit the motorcycle of the appellant. The appellant sustained multiple injuries and was treated at the Asha Hospital, Vatakara, Janatha Hospital, Vatakara, Thalassery Co- ## **MACA NO. 1868 OF 2011 3** operative Hospital and, thereafter, at the MIMS Hospital, Calicut, as an inpatient for a period of 18 days. The offending motorcycle was owned by the first respondent and insured with the third respondent. The appellant was a wire man and an electrical contractor and was earning a monthly income of Rs.15,000/-. Hence, the appellant claimed from the respondents an amount of Rs.4,60,000/- as compensation, which claim was limited to Rs.4,00,000/-. 3. The respondents 1 and 2 had filed a joint written statement admitting that the first respondent was the owner and the second respondent was the rider of the offending motorcycle. However, it was contended that the accident occurred due to the negligence of the appellant. They also disputed the age, income and occupation of the appellant. 4. The third respondent had filed a written statement admitting that the offending motorcycle had a ## **MACA NO. 1868 OF 2011 4** valid insurance coverage. The third respondent also reiterated the contentions of respondents 1 and 2 and disputed the age, income and occupation of the appellant. 5. The appellant got himself examined as PW1 and marked Exhibits A1 to A15 in evidence. The third respondent produced the insurance policy, which is marked as Exhibit B1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.1,08,960/- which is rounded off to Rs.1,09,000/-with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.Parthasarathy, the learned counsel appearing for the appellant/petitioner and Sri. P.K.Babu the learned counsel appearing for the third respondent/insurer. ## **MACA NO. 1868 OF 2011 5** 9. 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** 10. Exhibit A5 charge sheet filed by the Vatakara police in Crime No.829/2008 proves that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and third respondent was the insurer of the offending motorcycle. The respondents have not let in any evidence to discredit Exhibit A5 charge sheet. The third respondent has also not 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** 11. The appellant had claimed that he was a wire man and electrician by profession and was earning a **MACA NO. 1868 OF 2011 6** monthly income of Rs.15,000/-. For the want of material to substantiate his income, the Tribunal fixed his notional monthly income at Rs.5000/. 12. In **Ramachandrappa vs. Manager, Royal** : **Sundaram Alliance Insruance Company Ltd.** (2011) 13 SCC 236, the Honourable Supreme Court has fixed the notional monthly income of a coolie worker in the year 2004 at Rs.4,500/-. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2008, I re-fix the notional monthly income of the appellant at Rs.6500/-. ## **Loss of earnings** 14. As the appellant had suffered a traumatic rupture of sigmoid colon and had to undergo an emergency laparotomy under general anesthesia and was discharged only after 18 days of treatment, I hold that he was indisposed for a period of 4 months. In the above ## **MACA NO. 1868 OF 2011 7** circumstances, in view of the re-fixation of the notional monthly income of the appellant at Rs.6500/-, I award him a further amount of Rs.16,000/- under the head ‘loss of earnings’, instead of Rs.10,000/- awarded by the Tribunal. ## **- By stander expenses and extra nourishment.** 15. It is evident from Exhibits A3, A4 and A14 discharge summaries, that the appellant was treated as an inpatient for a period of 18 days. As the accident occurred in the year 2008, I award the appellant an amount of Rs.400/- per day for a period of 18 days as by-stander expenses, which works out to Rs.7200/- i.e. an enhancement of Rs.3600/-. Similarly, I award the appellant an amount of Rs.200/- per day for a period of 18 days, towards ‘extra nourishment’, which works to Rs.3600/- i.e. an enhancement of Rs.1600/-. ## **Pain and sufferings and loss of amenities** 16. The appellant had claimed an amount of Rs.50,000/- each under the heads ‘Pain and sufferings’ **MACA NO. 1868 OF 2011 8** and ‘loss of amenities’. The Tribunal has awarded only an amount of Rs.15,000/- under the head ‘pain and sufferings’. 17. On an appreciation of Exhibits A3, A4 and A14 discharge summaries and taking note of the fact that the appellant had suffered a traumatic rupture of the sigmoid colon and had to undergo an emergency laparotomy and also indisposed for a period of four months, I award him a further amount of Rs.25,000/- under the head ‘pain and sufferings’ and an amount of Rs.25,000/- under the head ‘loss of amenities’. 18. With respect to the other heads of compensation namely, ‘medical expenses’, ‘future treatment’, and ‘transportation expenses’, I find that the Tribunal has awarded reasonable and just compensation. 19. In the result, the appeal is allowed in part, by enhancing the compensation by an amount of Rs.71,200/- (i.e. an enhancement of Rs.16,000/- under the head ’loss ## **MACA NO. 1868 OF 2011 9** of earnings’, Rs.3600/- under the head ’by-stander expenses’, Rs.1600/- under the head ‘extra nourishment’, Rs.25,000/- under the head ‘pain and sufferings’ and Rs.25000/- under the head ‘loss of amenities) with interest at the rate of 7.5% per annum from the date of petition till the date of deposit, and a cost of Rs.5000/-. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt 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/02.02.2022