MACA NO. 293 OF 2010

MACA NO. 293 OF 2010 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 12[TH] DAY OF OCTOBER 2021 / 20TH ASWINA, 1943** **MACA NO. 293 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 917/2005 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE, KOZHIKODE APPELLANT/S:** AJMAL, S/O.HASRAD, AGED 51 YEARS MANATTUTHAZHAM, PUTHIYEDATH,, P.O.PANTHEERANKAVU, KOZHIKODE. BY ADVS. SMT.LATHA PRABHAKARAN SRI.K.M.JAMALUDHEEN ## **RESPONDENT/S:** 1 MOHAMMED, S/O.MOYIN,RESIDING AT ILLIPARAMBIL HOUSE,, P.O.KUZHIMANNA, MALAPPURAM DISTRICT. 2 ANOJ.P S/O.APPUKUTTY AGED 31 YEARS, RESIDING AT PANANGAVIL HOUSE,, P.O.PANTHEERANKAVU, KOZHIKODE. 3 THE UNITED INDIA INSURANCE CO.LTD. BRANCH OFFICE, PANDI AUTOMOBILES, UP HILL,, MALAPPURAM. BY ADVS. SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU SMT.S.JAYASREE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 293 OF 2010 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.917/2005 on the file of the Prinicpal Motor Accidents Claims Tribunal, Kozhikkode. 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 that he sustained in an accident on 12.03.2005. It was his case that, while he was riding a motor cycle bearing registration No.KLR-3903 from Pantheerankavu to Kunnathupalam, when he reached the place named Kaimbalam, a jeep bearing registration No.KED-6613 (jeep)) came from the opposite side and hit the motor cycle. The jeep was driven by the 2[nd] respondent in a rash and negligent manner. The jeep belonged to the 1[st] respondent and was insured with the 3[rd] respondent. The appellant was a bus checker by profession and aged 22 years. He was earning a monthly income of Rs.7000/-. The petitioner sustained serious injuries including Type III open fracture on both bones of the right leg and was treated at MACA NO. 293 OF 2010 3 the National Hospital, Kozhikkode for a period of 12 days from 12.03.2005 to 21.03.2005 and again from 30.05.2005 to 04.06.2005. Hence, the appellant claimed a total compensation of Rs.2,15,000/- from the respondents, which was limited to Rs.2,00,000/- 3. The 1[st] respondent did not contest the proceedings. 4. The 2[nd] respondent filed a written statement contending that the accident had occurred due to the negligence on the part of the appellant. 5. The 3[rd] respondent had filed a written statement admitting that the jeep had a valid insurance coverage. The 3[rd] respondent also contended that the accident occurred due to the negligence of the appellant. 6. The appellant produced and marked Exts.A1 to A6 series in evidence. The disability certificate of the appellant was marked as Ext.C1. 7. The Tribunal, after analyzing the pleadings and the materials on record, by the impugned award allowed the claim petition in part, by permitting the appellant to realize an amount of Rs.85,530/- with interest and cost from the 3[rd] respondent. MACA NO. 293 OF 2010 4 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal. 9. Heard; Sri. Jamaludeen K.M., the learned counsel appearing for the appellant/petitioner and Smt. S. Jayasree, the learned counsel appearing for the 3[rd] respondent/insurer. 10. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and Liability** 11. Ext.A3 charge sheet filed by the Police clearly proves the fact that the accident occurred due to the negligence on the part of the 2[nd] respondent. Undisputedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer. The 3[rd] respondent has admitted that the jeep had a valid insurance coverage and had not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Notional Income** 12. The appellant had claimed that he was a door checker by profession and earning a monthly income of MACA NO. 293 OF 2010 5 Rs.7,000/-. Nevertheless, the Tribunal fixed the notional monthly income of the appellant at Rs.2000/- per month. 13. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd.** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 14. Following the yardstick in the afore-cited decision and taking into account the fact that the accident occurred in the year 2005, I fix the notional monthly income of the appellant at Rs.5000/- per month. ## **Multiplier** 15. It can be seen from Exts.A4 and A5 documents that the appellant was aged 22 years at the time of the accident, although it is incorrectly pleaded that the appellant was 47 years at the time of the accident. In the light of the fact that the appellant was aged 22 years at the time of the accident, the relevant multiplier to be adopted is '18', following the ratio in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802]. ## **Loss due to disability** MACA NO. 293 OF 2010 6 16. Ext.C1 disability certificate issued by the Medical Board attached to the Medical College Hospital, Calicut proves that the appellant has a functional disability of 14% due to mal united fracture of the tibia and he has restrictions of his knee and has difficulty in squatting and climbing steps. I confirm the findings of the Tribunal on the basis of Ext.C1 that the appellant has a functional disability of 14%. 17. Taking into account the above mentioned factors i.e., the notional monthly income of the appellant at Rs.5,000/-, multiplier at 18, and functional disability at 14%, I refix the compensation for loss due to disability at Rs.1,51,200/-, instead of Rs.43,680/- fixed by the Tribunal. ## **Loss of earnings** 18. It is proved by Ext.A2 wound certificate and Exts.A4 and A5 discharge summaries read with Ext.C1 disability certificate that the appellant had sustained a Type III open fracture of both bones of the right leg. Necessarily, he was indisposed for a period of three months. In the said circumstances, I hold that the appellant is entitled for loss of earnings for a period of three months. MACA NO. 293 OF 2010 7 19. In view of the re-fixation of the notional monthly income of the appellant at Rs.5,000/- per month, I refix the compensation for loss of earnings at Rs.15,000/- instead of Rs.2,000/- fixed by the Tribunal. ## **Bystander expenses** 20. It is proved that the appellant was treated as inpatient for a period of 12 days. The Tribunal awarded only an amount of Rs.2,000/-. Taking into account the fact that the accident occurred in the year 2005, I hold that the appellant is entitled for bystander expenses at the rate of Rs.300/- per day for a period of 12 days i.e. a total of Rs.3,600/-, instead of Rs.2000/- awarded by the Tribunal. ## **Loss of amenities** 21. The appellant had claimed Rs.10,000/- as compensation for 'loss of amenities'. In view of the fact that the appellant was treated as an inpatient for a period of 12 days, he was indisposed for a period of three months and that his functional disability at 14%, I hold that the appellant is entitled for compensation of Rs.10,000/- for loss of amenities 22. With respect to the other heads of compensation, I MACA NO. 293 OF 2010 8 find that the Tribunal has awarded reasonable and just compensation. 23. On an overall re-appreciation of the pleadings and the materials on record and the law referred to in the aforecited precedents, I am of the definite opinion that the appellant is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. **==> picture [429 x 329] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>No. awarded by awarded by<br>the Tribunal this Court<br>(in Rs.) (in Rs.)<br>1. Loss of earnings 2,000 15,000<br> 2. Transportation 500 500<br>3. Clothing 350 350<br>4. Bystander expenses 2,000 3,600 (Rs.300<br>X 12 days)<br>5. Extra nourishment 0 1,000<br>6. Medical Expenses 25,000 25,000<br>7. Pain and sufferings 12,000 12,000<br>8. Loss of amenities 0 10,000<br>9. Loss due to disability 43,680 1,51,200<br>Total 85,530 2,18,650<br>**----- End of picture text -----**<br> In the result, the appeal is allowed in part by enhancing MACA NO. 293 OF 2010 **==> picture [7 x 9] intentionally omitted <==** the compensation by a further amount of Rs.1,33,120/- with interest at the rate of 6% per annum from the date of petition till the date of deposit and a cost of Rs.4,000/-. The 3[rd] respondent-insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of 60 days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant after deducting his liability, if any, towards court fee and in accordance with law. SD/- **C.S.DIAS JUDGE** rkc