High Court of KeralaSingle JudgePartially allowed; enhanced compensation grante...

Hiller Muhammed v. Rahim and Ors.

Case / Petition Number:MACA NO. 1279 OF 2008
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Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C.S.Dias
Judgment Date
2021-07-26
Court Decision / Holding
The appeal is allowed in part by enhancing the compensation by an amount of Rs.18,500/- with interest at the rate of 6% per annum from the date of petition till the date of deposit and proportionate costs. The third respondent shall deposit the enhanced compensation with interest and proportionate costs before the Tribunal, within a period of sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance with law.
Final Disposition
Partially allowed; enhanced compensation granted; insurer-directed deposit within sixty days; Tribunal to disburse as per law.

Parties to the Case

Appellants / Petitioners

  • Hiller Muhammed

Respondents

  • Rahim
  • K.P. Viswanathan
  • The New India Assurance Company Ltd.

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri.C.A.Chacko
  • • Smt.C.M.Charisma
  • • Sri.N.A.Shafeek

Counsels for Respondents

  • • Sri.P.Jacob Mathew
  • • Sri.Mathews Jacob Sr.

Case Synopsis & Summary

The appellant, Hiller Muhammed, was a welder injured when a bus collided with his jeep on 8 December 2002 near Ongallur while traveling from Ongallur to Pattambi. The accident occurred due to the bus driver’s rash and negligent conduct; the bus was owned by the second respondent and insured by the third respondent. The appellant sustained fractures to the nasal bone and ethmoid bone, lost three upper incisor teeth, and required hospitalisation for three days. He claimed compensation against the driver, owner and insurer for joint and several liability, but the Motor Accidents Claims Tribunal, Ottappalam, awarded a reduced sum and costs against the insurer. The appellant argued the Tribunal ignored his actual income and disabled earning capacity. The Tribunal fixed a notional income of Rs.2,000 per month; relying on the Supreme Court’s Ramachandrappa decision, the High Court re-fixed the notional income at Rs.4,500 per month and recalculated losses, awarding Rs.10,500 for loss of earnings and Rs.10,000 for disfiguration. The court found the earlier quantum insufficient and enhanced compensation by Rs.18,500, with 6% interest from the petition date and costs. It directed the insurer to deposit the enhanced amount within sixty days, and the Tribunal to disburse. With respect to other heads of compensation, the appellate court noted the Tribunal’s awards were reasonable. The appeal was allowed in part.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants’ counsel contended that the Tribunal erred in fixing the appellant’s notional income at Rs.2,000 per month without cogent reasoning, especially since the appellant was a skilled welder earning more and as per Ramachandrappa, notional income for similar circumstances should be Rs.4,500 per month for the year 2004. They submitted that the accident caused serious injuries, including fractures and loss of three upper incisors, and that the appellant’s earning capacity was temporarily reduced; hence, the loss of earnings could not be fixed at a paltry amount. They argued for a higher assessment of compensation for disfigurement and loss of earning capacity. They urged that the Tribunal’s reliance on the insurer’s policy for liability should not override the correct quantum of compensation and that the insurer is liable to indemnify the owner for the loss suffered by the injured, as per statutory law. The appellant also contended that the percentage of notional income deduction and the period of incapacity should be considered in calculating the compensation. They requested restoration of higher compensation consistent with the injuries and the documented evidence, and the application of the Ramachandrappa principle to determine a fair amount.

Contentions of Respondents

The respondents submitted that the accident primarily occurred due to the negligence of the jeep driver, and the bus owner and insurer cannot be made responsible for negligence attributable to another vehicle. They argued that the bus had valid insurance and that the insurer’s liability was only for indemnifying the owner; and that the Tribunal’s assessment of compensation complied with evidence and the nature of injuries. They contended that the petition was over-claimed, and that a higher calculation beyond the Tribunal’s award was not warranted; the insurer argues that the amount claimed as compensation is excessive and that the Tribunal did not err in requiring the appellant to prove the actual earnings. They urged the court to maintain the original quantum and to restrict any enhancement to what the Tribunal had already allowed. They argued that the amount should be fair and balanced in the light of the evidence and the medical record and to avoid excessive compensation; and asked that the appeal be dismissed or the enhancements be restricted.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited[(2011) 13 SCC 236]PositiveThe Supreme Court decision is cited and followed to fix the notional monthly income (Rs.4,500) for the year 2004, influencing the enhancement of compensation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS MONDAY, THE 26[TH] DAY OF JULY 2021/4TH SRAVANA, 1943 ## MACA NO. 1279 OF 2008 (AGAINST THE AWARD DATED 5.1.2006 IN OP(MV)No.268/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM) ## APPELLANT/PETITIONER: HILLER MUHAMMED, S/O. ABOOBACKER, AGED 26 YEARS, KOOLLAYEPARAMBIL HOUSE, MARUTHUR P.O., PATTAMBI, OTTAPALAM TALUK, PALAKKAD. BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK ## RESPONDENTS/RESPONDENTS: 1 RAHIM, S/O.MUHAMMED, PADINHAREYIL HOUSE, CHALISSERY. 2 K.P.VISWANATHAN S/O. PARANGU, KOLLUNGATH HOUSE, PARUDOOR P.O., PATTAMBI VIA., PALLIPPURAM. 3 THE NEW INDIA ASSURANCE COMPANY LTD., K.M.BUILDING, THAZHEPALAM, THIRUR. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _M.A.C.A. No. 1279 of 2008_ 2 ## **C.S.DIAS, J** - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 1279 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - Dated : 26[th] July, 2021 ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.268 of 2003 on the file of the Motor Accidents Claims Tribunal, Ottappalam. The respondents in the appeal were the respondents before the Tribunal. 2. The short facts, relevant for the determination of the appeal are; on 08.12.2002, while the appellant was travelling in a jeep bearing Registration No:KL11A/5787 from Ongallur to Pattambi, a bus bearing Registration No:KL-11A/8647, hit the jeep. The bus was driven by the first respondent in a rash and negligent manner. The bus was owned by the 2[nd] respondent and was insured with the 3[rd] respondent. The appellant sustained serious injuries and was taken to Nila _M.A.C.A. No. 1279 of 2008_ 3 Hospital, Pattambi and, thereafter, referred to Aswini Hospital, Thrissur. He underwent three days hospitalisation. The appellant was a welder by profession in an auto-mobile work shop and earning Rs.200/- per day. The appellant had a fracture on his nasal bone and on his ethmoid bone. He also lost three of his upper incisor teeth. The appellant contended that the respondents 1 to 3 were jointly and severally liable to pay compensation, which he quantified to Rs.2,90,000/- but limited to Rs.2,50,000/-. 3. In the same incident, the two other injured also filed O.P.(M.V.)Nos.267/2003 and 400/2004 before the same Tribunal. The Tribunal consolidated and jointly tried the original petitions. 4. The respondents 1 and 2 filed a written statement contending that the accident occurred due to the negligence of the driver of the jeep. It was contended that the bus had a valid insurance policy and, therefore, it was the 3[rd] respondent, who was liable _M.A.C.A. No. 1279 of 2008_ 4 to indemnify the 2[nd] respondent of his liability. . 5. The third respondent filed a written statement contending that the accident occurred due to the negligence of the driver of the jeep. However, they admitted that the bus had a valid insurance coverage. It was also contended that the amount of compensation claimed was on the higher side. 6. The appellant and other petitioners were examined as Pws 1 to 4 and Exts.A1 to A23 were marked in evidence. The respondents did not let any contra evidence. 7. The Tribunal, after considering the pleadings and materials on record, allowed the claim petition filed by the appellant in part, by permitting the appellant to realise an amount of Rs.33,098/- and cost of Rs.1,500/from the 3[rd] respondent. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard the learned counsel appearing for the _M.A.C.A. No. 1279 of 2008_ 5 appellant/petitioner and the learned counsel appearing for the 3[rd] respondent/insurance company. 10. Sole question that emerges for consideration in the appeal is; - _(i) Whether the quantum of compensation awarded by the Tribunal is reasonable and just?._ 11. Ext.A4 charge-sheet filed by the police after investigation, clearly substantiates the fact that the accident occurred on account of the negligence of the first respondent, who drove the bus in negligent manner. Admittedly, the 2[nd] respondent is the owner and the 3[rd] respondent is the insurer of the bus. Therefore, the 3[rd] respondent is liable to indemnify the liability of the 2[nd] respondent. 12. The appellant had claimed that he was a welder by profession and earning a monthly income of Rs.6,000/-. The Tribunal fixed the notional income of the appellant at Rs.2,000/- per month. 13. The Hon'ble Supreme Court in _M.A.C.A. No. 1279 of 2008_ 6 _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [(2011) 13 SCC 236], has fixed the notional income of the Coolie worker in the year 2004, at Rs.4,500/- per month. ## **Notional income** 14. Following the afore cited decision, I re-fix the notional income of the appellant at Rs.4,500/- per month. ## **Loss of earnings** 15. It is on record, that the appellant had sustained fractures on his nasal bone and the ethmoid bone and that he was hospitalised for a period of three days. Therefore, it can easily be inferred that the appellant was incapacitated for a period of three months. In view of the re-fixation of the notional income of the appellant at Rs.3,500/- , I fix his loss of earnings at Rs.10,500/-, instead of Rs.2,000/- awarded by the Tribunal. 16. It is also on record, as per Ex.A11 wound _M.A.C.A. No. 1279 of 2008_ 7 certificate that in addition to the fractures sustained by the appellant, he had also lost three upper incisor teeth and there was a lacerated wound over the upper lip. In such circumstances, I am of the firm opinion that the appellant is entitled for Rs.10,000/- towards compensation for loss due to dis-figuration. 17. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 18. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the aforesaid decision, I am of the considered opinion that the appellant is entitled for enhancement of compensation by an amount of Rs.18,500/-, i.e., Rs.8,500/- towards enhancement of compensation towards loss of earnings and Rs.10,000/- as compensation for dis-figuration. In the result, the appeal is allowed in part by enhancing the compensation by a further amount of _M.A.C.A. No. 1279 of 2008_ 8 Rs.18,500/- with interest at the rate of 6% per annum from the date of petition till the date of deposit and proportionate costs. The third respondent shall deposit the enhanced compensation with interest and proportionate costs before the Tribunal, within a period of sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance with law. _Sd/-_ **C.S.DIAS, JUDGE** ss