Kadhiyakutty @ Kadhiyumma v. Sali and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942** ## **MACA.No.1968 OF 2011** **AGAINST THE AWARD IN OPMV 315/2002 DATED 30-04-2008 OF DISTRICT COURT & SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA** ## **APPELLANT:** **KADHIYAKUTTY @ KADHIYUMMA AGED 52 YEARS, W/O.KUTTU, MELEPEEDIKAYIL HOUSE, THINAPURAM, MEPPADI POST, VYTHIRI TALUK.** **BY ADV. SMT.CELINE JOSEPH** ## **RESPONDENTS:** - **1 SALI AND OTHERS S/O.MOOSA, AGED 35 YEARS, THADATHIL HOSUE, AVILORA, KODUVALLY POST, KOZHIKODE 685 582.** - **2 KANALAKSHAN S/O.P.K.UNNIKRISHNAN, KALESH BHAVAN, THAMARASSERY POST, VIZHAPATTOOR, KOZHIKODE DISTRICT 671 032.** - **3 THE BRANCH MANAGER UNITED INDIA INSURANCE CO.LTD, VELIMANNA BUILDINGS, MAIN ROAD, THAMARASSERY, KOZHIKODE 673012. R1-2 BY ADV. SRI.ARUN MATHEW VADAKKAN R1 BY ADV. SRI.RAJESH THOMAS R1 BY ADV. SRI.K.P.SUDHEER R3 BY ADV. SRI.PMM.NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-03-2021, THE COURT ON 18-03-2021 DELIVERED THE FOLLOWING:** **MACA.No.1968 OF 2011** **2** ## **P.V.KUNHIKRISHNAN, J. =================== MACA No.1968 OF 2011 =================== Dated this the 18[th] day of March 2021** ## **J U D G M E N T** This appeal is filed by the claimant in O.P.(MV) No.388/2002 on the file of Motor Accidents Claims Tribunal, Kalpetta. The above claim petition was disposed by the tribunal along with 10 other claim petitions and a common award was passed. 2. The short facts are like this:_ On 09.06.2002 at about 6.00 p.m., the petitioner was traveling in a tata Sumo bearing Reg. No. KL 11 G-5787 from Kozhikode to Chundale and the vehicle was driven by the 1[st] respondent in a rash and negligent manner. When the vehicle reached in front of Nirmal agencies, Chundale, it hit on a wall and thereby the petitioner and other claimants sustained injuries. **MACA.No.1968 OF 2011** **3** Some of injured succumbed to the injuries. Therefore, the injured and legal heirs of the deceased filed 11 separate claim petitions. All the claim petitions were considered together by the tribunal and a common award is passed. As far as, the O.P. (MV) No. 388/2002, is concerned the tribunal fixed the compensation as Rs.53,650/- with interest @ 6% p.a. from the date of application till realization. The tribunal found that, the 2[nd] respondent should pay the compensation, because the injured was a gratuitous passenger and no additional premium was paid. Aggrieved by the same this appeal is filed. 3. Heard the learned counsel for the appellant/petitioner, the learned counsel for the 2[nd] respondent and the learned counsel for the 3[rd] respondent. 4. The learned counsel for the appellant submitted that, in the connected appeal filed by the claimant in O.P. (MV) No. 382/2002. This Court found that, the policy issued in respect of the offending vehicle is a package **MACA.No.1968 OF 2011** **4** policy and therefore, the 3[rd] respondent is directed to pay compensation. This was conceded by the insurance company. The relevant portion of the judgment dated 03.02.2011 in MACA No. 2158 of 2010 is extracted hereunder; “ When the appeal came up for hearing today, learned counsel for the Insurance Company fairly conceded that the policy issued in respect of the offending vehicle is a package policy. That being so, the risk of the claimant is covered by the said policy. It follows that the 3[rd] respondent is liable to indemnify the owner and the driver of the offending vehicle. Consequently, the 3[rd] respondent has to pay the compensation amount to the claimant.” 5. In the light of the above findings, the 3[rd] respondent is liable to pay compensation awarded by the tribunal. The learned counsel for the appellant submitted that, the compensation awarded by the tribunal is to low, considering the serious nature of the personal injuries sustained her. The learned counsel submitted that, the tribunal fixed the monthly income of the appellant as **MACA.No.1968 OF 2011** **5** Rs.1,500/-. According to the learned counsel, the accident happened in the year 2002 and the appellant was getting a monthly income of Rs. 3,750/-. In the light of the decision of the Apex Court in _**Ramachandrappa v. The Manager, Royal Sundaram [2011(13) SCC 236],**_ I think the monthly income can be safely fixed as Rs.3,500/-, because in the above decision the Apex Court fixed the monthly income of a coolie in the year 2004 as Rs.4,500/-. It is conceded by both sides that, the correct multiplier in the light of the decision in _**Sarla Verma & Others v. Delhi Transport Corporation & another [2010 (2) KLT 802]**_ is 14 considering the age of the appellant. Based on the same, the compensation for disability is to be re assessed in the following manner; Rs.3,500 X 12 X 14 X 20/100= Rs.1,17,600/6. The tribunal awarded an amount Rs.39,600/which is to be deducted from the above amount. The balance amount will be:- Rs.1,17,600-39,600 = **Rs.78,000/-** **MACA.No.1968 OF 2011** **6** 7. The learned counsel submitted that, only an amount of Rs.4,000/- is paid towards the loss of earning. The learned counsel submitted that, the appellant sustained very serious injuries including fracture. He was not able to go for his regular work for a long period. Considering the above submissions, I think, the loss of earning can be assessed @ Rs.3,500/- per month for a period of five months. Then the amount will be:Rs.3,500 X 5 = Rs.17,500/-. The amount already given by the tribunal is to be deducted from the above amount. Then, the balance amount will be:- Rs. 17,500-4000 = **Rs.13,500/-** . 8. The learned counsel submitted that the tribunal awarded only an amount of Rs.5,000/- for pain and suffering. It is true that the appellant sustained very serious injuries including fracture and he was in hospital for a period of 90 days. Considering the entire facts and circumstances of the case, I think, another amount of **Rs. 10,000/-** can be awarded towards pain and **MACA.No.1968 OF 2011** **7** suffering. No amount is awarded for loss of amenities. The appellant is entitled an amount of **Rs. 15,000/-** towards loss of amenities. Therefore, the total enhanced compensation entitled to the appellant can be summarised like this: |Head|Amount| |---|---| |Compensation for<br>disability|Rs.78,000/-| |Loss of earnings|Rs.13,500/-| |Pain and sufferings|Rs.10,000/-| |Loss of amenity|Rs.15,000/-| |**Total**|**Rs. 1,16,500/-**| 9. The 3[rd] respondent is directed to pay the compensation awarded by the tribunal and enhanced amount awarded by this Court. The appellant is entitled interest at the rate of 7.5% for the enhanced compensation. Therefore, the appeal is allowed in part. The impugned award is modified to the effect that the appellant is entitled an enhanced compensation of **MACA.No.1968 OF 2011** **8** Rs.1,16,500/- with interest @ 7.5% p.a from the date of application till realisation. The compensation awarded by the tribunal and enhanced compensation awarded by this Court in this appeal with interest will be paid by the 3[rd] respondent. **(Sd/-) P.V.KUNHIKRISHNAN JUDGE** LU