Latheef v. Noorjafan, Shaheeb & The New India Insurance Company Limited (MACA No. 1768 of 2013)

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` WEDNESDAY, THE 19[TH] DAY OF OCTOBER 2022 / 27TH ASWINA, 1944 ``` ``` MACA NO. 1768 OF 2013 ``` ``` AGAINST THE AWARD DATED 27.02.2013 IN O.P(M.V) NO.329/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI ``` ## `- APPELLANT/PETITIONER :` ``` LATHEEF, 46 YEARS S/O.MUHAMMED, VADAKKAN HOUSE, HAJIYARPALLI P O, MUNDKULAM QUARTERS ``` ``` BY ADVS.SRI.V.S.CHANDRASEKHARAN SRI.M.V.DAS SMT.LEKSHMI SWAMINATHAN ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1NOORJAFAN, MUNDUKKAPARAMB, S/O.MUHAMMED, THAZHATH HOUSE, P O KAVANUR, IRIVETTY (DRIVER)673644 2SHAHEEB S/O.UMMER, PUNNAKUNNATH HOUSE, EDAVANNA, MALAPPURAM DIST(OWNER)PIN 676541 ``` ``` 3THE NEW INDIA INSURANCE COMPANY LIMITED, VARIKKODAN BUILDING , NILAMBUR ROAD, MANJERI P O, (INSURER) PIN 676121 ``` ``` R3 BY ADV SRI.RENIL ANTO KANDAMKULATHY ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1768 of 2013 ``` ``` 2 ``` ## `JUDGMENT` ``` Dated this the 19[th] day of October, 2022 ``` This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Manjeri (for short 'the Tribunal') on 27.02.2013 in O.P(M.V.) No.329/2010. 2. The appellant is the injured, who had filed O.P(M.V.) No.329/2010 before the Tribunal seeking for a sum of Rs.30,000/- as the total compensation from respondents 1 to 3. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the above Original Petition. 3. The claim of the petitioner was that he was knocked down by a car while standing by the side of a road at Pannipara bus stop at about 5.15 pm on 05.07.2009. It is alleged that the accident was occurred due to the rash and negligent driving of the car by its driver. Claiming a sum of Rs.30,000/- as total compensation and alleging that the driver, owner and insurer of ``` M.A.C.A.No.1768 of 2013 ``` ``` 3 ``` the car were jointly and severally liable to compensate him, the Original Petition was filed before the Tribunal. 4. The driver of the car, who was the 1[st] respondent though served with notice in the Original Petition failed to appear before the Tribunal and contest and therefore declared ex parte. The 2[nd] respondent, the registered owner of the car, was also served with notice but on his failure to appear before the court was also declared ex parte. The 3[rd] respondent had filed a written statement admitting insurance coverage of the car as on date of accident but denied its liability to indemnify the insured for violation of policy conditions by the latter by permitting the driver to drive the car without licence. The sum claimed as compensation is also disputed for its exorbitance. 5. The petitioner had adduced evidence as Exts.A1 to A6. Respondent No.3 adduced evidence as Exts.B1 and B2. On appreciation of the entire evidence, the Tribunal arrived at a finding that the accident was occurred due to the rash and negligent driving of the car by the 1[st] respondent and that the petitioner is entitled to get a sum of Rs.15,922/- as compensation. The 3[rd] respondent was directed to deposit the ``` M.A.C.A.No.1768 of 2013 ``` ``` 4 ``` amount with interest at the rate of 9% per annum from the date of filing of the Original Petition till the date of realisation and was also permitted to recover it after depositing, from the owner/insured. Aggrieved by the quantum awarded by the Tribunal as compensation, the petitioner before the Tribunal has approached this Court in the appeal on hand seeking for enhancement of compensation. 6. It is contended by Sri.V.S.Chandrasekharan, the learned counsel for the petitioner that the monthly income was fixed by the Tribunal notionally as Rs.3,500/- and the fixation is inappropriate. According to him the petitioner claimed to be an industrial worker earning Rs.5,000/- monthly but he failed to establish his job and monthly income. According to the learned counsel when evidence is not forthcoming to prove the job and the monthly income, the fixation of monthly income by the Apex Court in **Ramachandrappa v Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236] can be followed and a sum proportionate to that can be taken as the monthly income of the petitioner for the purpose of computation of compensation for loss of earning. ``` M.A.C.A.No.1768 of 2013 ``` ``` 5 ``` The Apex Court had taken Rs.4,500/- as the monthly income in the case of a Coolie worker for assessment of compensation for the injuries sustained by him in a motor accident occurred in the year 2004. The accident in the case on hand was occurred in 2009 and therefore, it is just and appropriate to take Rs.7,000/- as the monthly income. 7. According to the learned counsel the Tribunal has taken only one month for assessment of compensation for loss of earning. According to him, the petitioner had sustained multiple fractures involving both nasal bones, nasal septum, anterior wall of left maxillary sinus (with hemosinus) and right side of body of mandible and was treated as inpatient for 13 days. According to the learned counsel, evidence adduced as above was overlooked by the Tribunal while computing compensation for loss of earning, transportation expenses, bystander expenses and pain and suffering. According to him compensation was not awarded by the Tribunal under the heads extra nourishment and loss of amenities and enjoyments in life. The learned counsel urged for a reassessment of compensation for the reasons. ``` M.A.C.A.No.1768 of 2013 ``` ``` 6 ``` 8. It is noticed from Ext.A2, the treatment certificate and Ext.A5 the scan report that the petitioner has sustained multiple fractures as described above and was treated as inpatient for 13 days. It is indicated from the Medical bills produced and marked in evidence as Ext.A4 series that Rs.2,872/- was spent by the petitioner for treatment. Petitioner claimed to be aged 46 years. He failed to prove his job and monthly income at the relevant time. Therefore, in accordance with the fixation of monthly income in **Ramachandrappa** supra Rs.7,000/- is fixed in the case on hand as his monthly income. 9. Though the petitioner had sustained serious injuries as above, the Tribunal had considered one month for assessment of compensation for loss of earning. Injuries being serious, this Court is inclined to consider two months. In the reassessment with the modified monthly income of Rs.7,000/for two months, the petitioner will get Rs.14,000/- as compensation for loss of earnings. Rs.3,500/- being the sum stands awarded by the Tribunal, the petitioner will get Rs.10,500/- as additional compensation under that head. ``` M.A.C.A.No.1768 of 2013 ``` ``` 7 ``` Under the head bystander expenses, the Tribunal has awarded only Rs.100/- per day for 13 days. This Court is inclined to enhance it to Rs.200/- per day so that the petitioner will get Rs.2,600/- as compensation and therefore Rs.1,300/- will be payable to the petitioner additionally. Towards transportation, the Tribunal has awarded only Rs.500/- and this Court is inclined to modify it to Rs.1,000/-, so that Rs.500/- will be payable to the petitioner additionally. Under the head extra nourishment, the Tribunal failed to award any sum as compensation though a claim for Rs.2,000/- was made. This Court is inclined to award Rs.1,000/- under that head. Towards damages to clothing the Tribunal has awarded only Rs.250/- and this Court is inclined to award Rs.1,000/- so that Rs.750/- will be payable in addition. Under the head pain and suffering the Tribunal has awarded Rs.7,500/- and it being disproportionate to the injuries sustained by the petitioner, this Court is inclined to modify it to Rs.15,000/-, so that Rs.7,500/- will be payable to the petitioner additionally. Compensation having not been awarded by the Tribunal under the head loss of amenities and enjoyments in life, this Court is inclined to award Rs.5,000/-. ``` M.A.C.A.No.1768 of 2013 ``` ``` 8 ``` 10. In the manner of reassessment and modification of the compensation as above, the petitioner will get Rs.26,550/(Rupees Twenty six thousand Five hundred and Fifty only) as additional compensation which would carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 11. It is noticed from the impugned award that the Tribunal has ordered recovery of the compensation amount by the 3[rd] respondent after depositing the same in favour of the petitioner, from the 2[nd] respondent/insured. In the above circumstances, the 3[rd] respondent shall deposit the sum now awarded as additional compensation with interest at the rate fixed by this Court within a period of two months from the date on which a certified copy of this judgment is received and to take recourse to recover the same from the 2[nd] respondent. M.A.C.A stands allowed accordingly. **Sd/-** ## **MARY JOSEPH** **JUDGE** NAB ``` M.A.C.A.No.1768 of 2013 ``` ``` 9 ``` ``` APPENDIX OF M.A.C.A 1768/2013 ``` ## `PETITIONER’S ANNEXURES :-` |`ANNEXURE A1`|`THE ORIGINAL DISCHARGE CARD`| |---|---| |`ANNEXURE A2`|`THE TREATMENT CERTIFICATE ISSUED BY`| ||`RAVEENDRAN OF THE GOVT. DENTAL COLLEGE`| ||`CALICUT`| |`ANNEXURE A3`|`SERIES OF ORIGINAL MEDICAL BILLS`| ||`TOTALLY AMOUNTING TO RS.388.92`| |`ANNEXURE A4`|`ORIGINAL CERTIFICATE DATED 29.6.13`| ||`ISSUED BY DR.RAZEEN ABDURAZAK OF THE`| ||`SHIFA`| ``` RESPONDENT’S ANNEXURES: NIL ``` ``` //TRUE COPY// ``` ``` P A TO JUDGE ```