Manoj Kumar C.O. v. Pradeep Kumar and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943** **MACA NO. 2591 OF 2010** **AGAINST THE AWARD DATED 27.07.2010 IN OPMV 786/2004 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL, THALASSERY** ## **APPELLANT/PETITIONER:** MANOJ KUMAR C.O., S/O A.V.SREEKUMAR 35 YEARS, "SREEVALSAM", P.O.KOTTAYAMPOIL, KUTHUPARAMBA. BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY ## **RESPONDENTS/RESPONDENTS:** - 1 PRADEEP KUMAR, S/O KUNHIRAMAN NAMBIAR MOTTALA HOUSE, P.O.KOTTAYAMPOIL, KUTHUPARAMBA-670 691. 2 THE NEW INDIA ASSURANCE COMPANY LTD. KANNUR-670 001. - 3 KADEEJA UMMA, W/O.LATE ISMAIL NEW HOUSE, P.O.KINYA, VIA. UCHILA, MANGALORE TALUK. 575 001. - 4 K.I.MUHAMMED, S/O. LATE ISMAIL -DO- - 5 RAFEEQUE.K.I., S/O.LATE ISMAIL -DO- -DO- - 6 IQBAL.K.I. S/O.LATE ISMAIL DO. **MACA NO. 2591 OF 2010 2** 7 NASEER.K.I. S/O.LATE ISMAIL DO. 8 RIYAS.K.I. S/O.LATE ISMAIL DO. 9 RISWAN.K.I. S/O.LATE ISMAIL DO. 10 HALEEMA.K.I. D/O.LATE ISMAIL DO. 11 SAHEERA.K.I. D/O.LATE ISMAIL DO. BY ADV SRI.PMM.NAJEEB KHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **MACA NO. 2591 OF 2010 3** ## **Dated this the 2[nd] day of March, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.786/2004 on the file of the Motor Accidents Claims Tribunal, Thalasserry. The respondents in the appeal were the respondents 2 to 12 before the Tribunal. The first respondent before the Tribunal had died before passing the award. Hence, he is not impleaded as a party in the appeal. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioner 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 17.04.2001. It was his case that, while he was travelling in a Tata Sumo bearing registration No. K.A.19/N-698 along with his relatives to Guruvayoor, the vehicle hit against a tree and the petitioner and the other ## **MACA NO. 2591 OF 2010 4** passengers in the vehicle sustained serious injuries. The petitioner’s brother-in-law named, ‘Prasad’ succumbed to his injuries. The accident occurred due to the negligence of the second respondent – driver of the Tata Sumo. The petitioner suffered multiple injuries including five fractures and was treated as an inpatient for a period of 33 days at the Baby Memorial Hospital, Calicut. The petitioner was employed as an Area Field Manager in Vydut Metalics Ltd, Ernakulam and was drawing a salary of Rs.87,000/- per annum. The Tata Sumo was owned by the first respondent and insured with the third respondent. Hence, the petitioner had claimed a compensation of Rs.5,00,000/- from the respondents. 3. The other injured in the same accident and the legal representatives of the deceased passenger also filed O.P.(M.V) Nos.778/04, 779/04, 780/04, 781/04, 782/04, 783/04, 784/04 and 785/04 before the same Tribunal, seeking compensation from the respondents. 4. Pending the claim petitions, the first respondent ## **MACA NO. 2591 OF 2010 5** died and his legal representatives were impleaded as supplemental respondents 4 to 12. Only the third respondent contested all the claim petitions. 5. The third respondent had filed separate written statements in all the claim petitions, inter alia, contending that as the first respondent had transferred the vehicle to the second respondent without intimating the third respondent, the third respondent may be exonerated of its liability. However, the third respondent admitted that the Tata Sumo had a valid insurance coverage. The third respondent also stated that the compensation claimed in all the claim petitions were excessive. 6. The Tribunal consolidated and jointly tried all the claim petitions. 7. The petitioner got himself examined as PW1 and the petitioners in all the claim petitions produced and marked Exhibits A1 to A37 in evidence. The third respondent produced the insurance policy, which was marked as Exhibit B1. Exhibits X1 to X6 were summoned ## **MACA NO. 2591 OF 2010 6** and marked in evidence 8. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition in part, by permitting the petitioner to recover from the third respondent an amount of Rs.2,64,980/-, rounded off to Rs.2,65,000/-, with interest and a cost of Rs.1000/-. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri.Mathew John, the learned counsel appearing for the appellant/petitioner and Sri.PMM Najeeb Khan the learned counsel appearing for the second respondent/insurer. 11. The point that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 12. Exhibit A16 FIR registered by the Koyilandy Police in Crime No.152/2001 proves that the accident **MACA NO. 2591 OF 2010 7** occurred due to the negligence of the second respondent. The respondents have not let in any evidence to the contrary to discredit Exhibit A16 or to controvert the pleadings and materials on record. Thus, it is proved that the second respondent was negligent in causing the accident. Indisputably, the first respondent was the owner and third respondent was the insurer of the Tata Sumo. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 13. The petitioner had claimed that he was employed as an Area Field Manager in Vydut Metalics Ltd, Ernakulam and was earning an annual income of Rs.87,000/-. In order to prove his pleading, he had produced Exhibit A5- (Form 16) issued by the Income Tax Department to prove that he had a salary of Rs.1,31,513/for the period from 01.04.2001 to 31.03.2002. However, ## **MACA NO. 2591 OF 2010 8** the Tribunal declined to accept the said certificate, on the ground it was only a photostat copy and the petitioner had not produced the salary certificate or summon and examine his employer. In the above circumstances, the Tribunal fixed the notional monthly income of the petitioner at Rs.3500/-. 14. On a re-appreciation of Exhibit A5, it is seen that it is only a photostat copy of Form 16, issued under the Income Tax Act, 1961, for tax deducted at source. It is not discernible from the said document that the petitioner was earning an annual income of Rs.1,31,513/-. Moreover, if the petitioner was a permanent employee, I don’t see any reason what prevented him from producing his salary certificate and examining his employer, to prove his income. In the above circumstances, I confirm the finding of the Tribunal and proceed to fix the notional monthly income of the petitioner. 15. In **Chameli Devi and others v. Jivrail Mian** ## **MACA NO. 2591 OF 2010 9** **and others** [2019 KHC 5352], the Honourable Supreme Court has fixed the notional income of a monthly carpenter in the year 2001 at Rs.5000/- 16. Following the yardstick in the afore-cited decision and considering the fact that the petitioner was an Area Field Manager, I hold that the petitioner’s notional monthly income can safely be fixed at Rs.5000/-. ## **Loss of earnings** 17. The Tribunal has found that the petitioner was indisposed for a period of three months. 18. On a perusal of Exhibit A1 wound certificate and A2 discharge summaries, it is seen that the petitioner had sustained five fractures, namely, fracture of his femure, fracture of his humerus, fracture of superior public ramus, fracture of his rib 8[th] right, fracture of raidus middle 1/3 left forearm. In the above circumstances, especially taking note of the fact that petitioner was a Field Manager, I hold that he was indisposed for a period of five months. ## **MACA NO. 2591 OF 2010 10** 19. In view of the re-fixation of the notional monthly income of the petitioner at Rs.5000/-, I award him an amount of Rs.25,000/- under the head ‘loss of earnings’, instead of Rs.- 10,500/-awarded by the Tribunal. ## **- By stander expenses and extra nourishment** 20. The Tribunal has awarded only an amount of Rs.3300/- under the head ‘by-stander expenses’. It is undisputed that the petitioner was treated as an inpatient for a period of 33 days. In the light of the re-fixation of the notional monthly income of the petitioner at Rs.5000/-, I am of the view that he is entitled to ‘bystander expenses’ at the same amount. As the petitioner was treated as an inpatient for a period of 33 days, I award him an amount of Rs.5500/- under the head ‘bystander expenses’. Likewise, I award him an amount of Rs.3000/- towards ‘extra nourishment’. ## **Disability** 21. A three member Medical Board attached to the District Hospital, Kannur has by Exhibit X1 found that the **MACA NO. 2591 OF 2010 11** petitioner has a permanent disability of 12%. I accept the said assessment. ## **Multiplier** 22. The petitioner was aged 32 years at the time of accident. In the light of the law laid down in **Sarla Verma** **and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier is ‘16’. ## **Loss of earning power** 23. Taking into account the above mentioned factors, namely, the monthly income of the petitioner at Rs.5000/-, his functional disability at 12% and the multiplier at 16, I award him an amount of Rs.1,15,200/- towards ‘loss of earning power’. ## **Pain and suffering and loss of amenities** 24. The Tribunal has awarded only an amount of Rs.22,000/- under the head’ pain and sufferings’. I find the same to be on the lower side. 25. On a consideration of the fact that the petitioner **MACA NO. 2591 OF 2010 12** had sustained five fractures, as evident from Exhibit A1, A2 and Exhibit X1, that the petitioner was treated as an inpatient for a period of 33 days and that he was indisposed for a period of five months, I hold that he is entitled to a further amount of Rs.18000/- under the head ‘pain and sufferings’ and an amount of Rs.15,000/- under the head ‘loss of amenities’. 26. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 27. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I hold that the appellant /petitioner is entitled for enhancement of compensation as modified and recalculated above, and given in the table below for easy reference. ## **MACA NO. 2591 OF 2010 13** |Sl No.|Head of Claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earning|10500|25000| |2|Medical expenses|134500|134500| |3|Transport|1000|1000| |4|By-stander<br>expenses|3300|5500| |5|Extra nourishment|0|3000| |6|Pain and<br>sufferings|22000|40000| |7|Loss of amenities|0|15000| |8|Loss of earning<br>capacity|85680|115200| |9|Review expenses|3000|3000| |||264980/-<br>rounder off to<br>Rs.265,000/-|342200| In the result, the appeal is allowed in part, by enhancing the compensation by an amount of **MACA NO. 2591 OF 2010 14** Rs.77,200 **/-** with interest at the rate of 6% per annum from the date of petition till the date of deposit, and a cost of Rs.10,000/-. The third respondent-insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** rmm/02/03/2022