High Court of KeralaSingle Judge2022-01-24Appeal allowed; enhanced compensation with inte...

Jalaludheen @ Jalal v. Mansoor Babu, Hussain, United India Insurance Co. Ltd.

Case / Petition Number:MACA NO. 2306 OF 2009

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2022-01-24
Court Decision / Holding: The High Court allowed the appeal, enhanced the compensation by Rs. 1,00,050 over the Tribunal’s award, and directed the 3rd respondent to deposit the enhanced amount with interest at 7% per annum from the petition date to the date of deposit, after deducting pre-appeal delay (1283 days). Costs of Rs. 5,000 were awarded. The enhanced compensation, with interest and costs, was to be deposited within 60 days from receipt of a certified copy of the judgment, and disbursed to the appellant upon deposit in accordance with law.
Final Disposition: Appeal allowed; enhanced compensation with interest and costs; 60-day deposit directed; enhanced amount to be disbursed to appellant upon deposit.

Parties to the Case

Appellants / Petitioners

Jalaludheen @ Jalal

Respondents

Mansoor Babu (Driver)
Hussain (Owner)
United India Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Babu S. Nair

Counsels for Respondents

• A. A. Mohammed Nazir

Case Synopsis & Summary

Jalaludheen @ Jalal, the appellant, challenged the Motor Accidents Claims Tribunal, Manjeri’s order in OP(MV)1314/2001 under Section 166 of the Motor Vehicles Act, 1988. The accident occurred on 05.01.2001 when the motor cycle on which Jalaludheen was a pillion rider was struck by an offending bus driven rashly by the 1st respondent. Jalaludheen sustained a Grade III compound fracture of the right leg and remained an inpatient for 38 days at Al Shifa Hospital, Perinthalmanna. He claimed compensation totaling Rs. 4,50,000, though the petition sought up to Rs. 4,50,000 with a cap of Rs. 3,50,000. The 2nd respondent was ex parte; the 3rd respondent insurer admitted coverage but contended the accident occurred due to the rider’s negligence and argued the petition was bad for non-joinder of necessary parties. The Tribunal allowed the claim in part, awarding Rs. 93,906 with costs. On appeal, the High Court reassessed the matter, noting the applicant’s overseas employment and lack of material to substantiate a Rs. 10,000 monthly income, and relied on Chameli Devi and Sarla Varma to fix a notional income of Rs. 5,000 and a multiplier of 18, given the petitioner’s age of 24. The court enhanced losses under multiple heads—loss of earnings, disability, bystander expenses, nourishment, pain, loss of amenities, transport and medical expenses—showing an overall uplift to Rs. 1,93,956, followed by a further enhancement of Rs. 1,00,050 with 7% interest and costs. The appeal is allowed, with directions to deposit the enhanced amount within 60 days, for disbursement to Jalaludheen on deposit.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Multiplier principle under Sarla Varma v. Delhi Transport Corporation (2010 (2) KLT 802)
Notional income principle from Chameli Devi v. Jivrail Mian and others (2019 KHC 5352)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends the accident resulted from rash and negligent driving by the 1st respondent, as established by Ext. A1 FIR. He submits that the Tribunal erroneously fixed a meagre notional income (Rs. 1,250 per month) without basis, despite his claim of Rs. 10,000 per month from overseas employment. He had produced Exts. A1–A5 and X1, demonstrating injuries, 38 days of hospitalization, disability and loss of earning. Relying on Chameli Devi and Sarla Varma, he seeks re-assessment of income and proper use of the multiplier (18) based on age (24). He argues for enhanced compensation across heads including loss of earnings, disability, bystander expenses, nourishment, pain and sufferings, loss of amenities, transport and medical expenses, following current precedents. The appellant prays for full liability of the insurer and payment of enhanced amounts with interest and costs.

Contentions of Respondents

The 3rd respondent insurer contends the accident occurred due to the rider’s negligence and the petition is defective for non-joinder of necessary parties. It concedes bus insurance but argues policy conditions control liability and that the 1st respondent did not file a written statement. The insurer also asserts non-joinder and argues the claim petition should be dismissed; the 2nd respondent is ex parte. The insurer maintains that liability should be restricted to policy terms and seeks dismissal of the petition.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Chameli Devi and others v. Jivrail Mian and others	2019 KHC 5352	Positive	The High Court relies on Chameli Devi to fix notional income (Rs.5,000 in 2001) for calculating compensation, aligning with the notional-income approach.
Sarla Varma v. Delhi Transport Corporation	2010 (2) KLT 802	Positive	The court applies the multiplier principle from Sarla Varma (multiplier 18) given the appellant’s age, influencing the calculation of loss of earnings and overall 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 24[TH] DAY OF JANUARY 2022 / 4TH MAGHA, 1943** **MACA NO. 2306 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1314/2001 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL , MANJERI** ## **APPELLANT/PETITIONER:** **JALALUDHEEN @ JALAL, S/O.MUHAMMED, THADATHIL HOUSE, PERUVALLUR POST, KONDOTTY, MALAPPURAM DISTRICT.** **BY ADV SRI.BABU S. NAIR** ## **RESPONDENTS/RESPONDENTS:** - **1 MANSOOR BABU(DRIVER) S/O.MAMMU, KADAMPODAN HOUSE, PANANGANGARA, RAMAPURAM POST, MALAPPURAM DISTRICT.** - **2 HUSSAIN (OWNER), S/O.HAMZA HAJI ARANGODAN HOUSE, ANGADIPPURAM (POST), MALAPPURAM DISTRICT.** - **3 UNITED INDIA INSURANCE CO.LTD. BRANCH OFFICE, UP HILL, MALAPPURAM. BY ADV SRI.A.A.MOHAMMED NAZIR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 2306 OF 2009** **2** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1314/2001 on the file of the Motor Accidents Claims Tribunal, Manjeri. 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 05.01.2001. It was his case that, on the above said date, while he was riding pillion on a motor cycle bearing registration No.KL-10 H 9399 from Ramapuram to Malappuram, a bus bearing registration No.KRM 416 (offending bus), driven by the 1st respondent in a rash and negligent manner, hit the motor cycle. The appellant sustained grievous injuries and was treated as an inpatient for a period of 38 days at the Al Shifa Hospital, Perinthalmanna. He sustained a Grade III compound fracture **MACA NO. 2306 OF 2009** **3** of his right leg. The bus was owned by the 2nd respondent and insured with the 3rd respondent. The appellant was employed as a salesman in Riyadh and was earning a monthly income of Rs.10,000/-. Hence, the appellant claimed a total compensation of Rs.4,50,000/- from the respondents, which claim was limited to Rs.3,50,000/-. 3. The 2nd respondent was set ex-parte. 4. Even though the 1st respondent entered appearance through counsel, he did not file any written statement. 5. The 3rd respondent had filed a written statement admitting that the bus had a valid insurance coverage. Nevertheless, it was contended that the accident occurred due to the negligence of the rider of the motor cycle. The 3rd respondent also stated that the claim petition was bad for non-joinder of necessary parties. Hence, the 3rd respondent prayed that the claim petition be dismissed. 6. The appellant produced and marked Exts.A1 to A5 in evidence. The disability certificate issued by the Medical **MACA NO. 2306 OF 2009** **4** Board attached to the District Hospital, Manjeri was marked as Ext.X1. 7. The Tribunal after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the 3rd respondent an amount of Rs.93,906/- with interest and cost of Rs.1,000/-. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Sri. Babu S.Nair, the learned counsel appearing for the appellant/petitioner and Sri. A.A.Mohammed Nazir, the learned counsel appearing for the 3rd respondent/insurer. 10. The point that emanates for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and liability** 11. The uncontroverted assertions in the claim petition read with Ext.A1 FIR proves that the accident occurred due to the negligence of the 1st respondent. The respondents have **MACA NO. 2306 OF 2009** **5** not let in any evidence to controvert the assertion in the claim petition or disprove Ext.A1 FIR. The 3rd respondent has also not proved that the 2nd respondent had violated the insurance policy conditions. Therefore, the 3rd respondent is to indemnify the liability of the 2nd respondent arising out of the accident. ## **Income** 12. The appellant had claimed that he was a salesman employed in Riyadh, and he was earning a monthly income of Rs.10,000/-. However, the appellant did not produce any materials before the Tribunal. Accordingly, the Tribunal fixed the notional monthly income of the appellant at Rs.1,250/-. It is evident that the appellant was employed abroad. However, for want of materials, the income as claimed in the claim petition cannot be accepted. ## 13. In **Chameli Devi and others vs.Jivrail Mian and** **others** [2019 KHC 5352], the Honourable Supreme Court has **MACA NO. 2306 OF 2009** **6** fixed the notional income of a carpenter in the year 2001 at Rs.5,000/-. 14. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2001, I fix the notional monthly income of the appellant at Rs.5,000/-. ## **Disability** 15. Based on Ext.X1, the Tribunal has fixed the functional disability of the appellant at 5%. I confirm the said finding. **Multiplier** 16. The appellant was aged 24 years at the time of the accident. In view of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802], the relevant multiplier to be adopted is “18”. ## **Loss due to disability** 17. In view of the refixation of the notional monthly income of the appellant at Rs.5,000/-, his functional disability **MACA NO. 2306 OF 2009** **7** at 5% and the multiplier at '18', I award the appellant an amount of Rs.54,000/- towards ‘loss due to disability’ instead of Rs.12,750/- awarded by the Tribunal. ## **Loss of earnings** 18. The Tribunal has found that the appellant was indisposed for a period of six months. I confirm the said finding. In view of the refixation of the notional monthly income of the appellant at Rs.5,000/-, I award him an amount of Rs.30,000/- towards ‘loss of earnings’ instead of Rs.7,500/awarded by the Tribunal. ## **Bystander expenses and extra nourishment** 19. It is on record as per Ext.A3 discharge summary and Ext.X1 disability certificate, the appellant was treated as an inpatient for a period of 38 days. Therefore, I award him an amount of Rs.300/- per day for a period of 38 days towards ‘bystander expenses’ which works out to Rs.11,400/-. Similarly, I award him an amount of Rs.150/- per day for a period of 38 days towards ‘extra nourishment’ which comes to **MACA NO. 2306 OF 2009** **8** Rs.5,700/-. ## **Pain and sufferings and loss of amenities** 20. The appellant had claimed an amount of Rs.25,000/towards pain and sufferings. The Tribunal has awarded an amount of Rs.12,000/- . Likewise the Tribunal has not awarded any amount under the head ‘loss of amenities’. 21. Taking into consideration the fact that the appellant was treated as an inpatient for a period of 38 days, that he was indisposed for a period of six months and that he suffered a functional disability of 5%, I award him a further amount of Rs.13,000/- under the head ‘pain and sufferings’ and Rs.10,000/- under the head ‘loss of amenities’. 22. With respect to the compensation awarded under the heads, namely, transport to hospital and medical expenses, I find that the Tribunal has awarded reasonable and just compensation. 23. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited **MACA NO. 2306 OF 2009** **9** precedents, I hold that the appellant/petitioner is entitled to enhancement of compensation as modified and recalculated above and given in the table below for easy reference. **==> picture [476 x 486] intentionally omitted <==** **----- Start of picture text -----** Amount Amount Sl.N awarded by awarded by Head of claim o. the Tribunal this Court (in Rs.) (in Rs.) Loss of earnings 1. 7,500 30,000 Transportation expenses 2. 1,500 1,500 Bystander expenses 3. 3,800 11,400 4. Extra nourishment 0 5,700 Medical expenses 5. 56,356 56,356 Pain and sufferings 6. 12,000 25,000 Loss of amenities 7. 0 10,000 Loss due to disability 8. 12,750 54,000 Total 93,906 1,93,956 **----- End of picture text -----** **MACA NO. 2306 OF 2009** **10** In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.1,00,050/- with interest @ 7% per annum on the enhanced compensation from the date of petition till the date of deposit after deducting interest for a period of 1283 days i.e., the period of delay in filing the appeal and as ordered by this Court on 08.10.2021 in C.M.Appln. No.1/2009 and cost of Rs.5,000/-. The 3rd respondent is ordered to deposit the enhanced compensation with interest and cost as ordered above within a period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to appellant in accordance with law. Sd/- **C.S.DIAS, JUDGE** Rkc/24.01.22