M.N. Narayanankutty v. Muhammed Kutty and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942** ## **MACA.No.753 OF 2010** **AGAINST THE AWARD IN OPMV 129/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT:** **M.N.NARAYANANKUTTY AGED 54 YEARS, S/O UNNIGUPTHAN RESIDING AT AMMU, THATTATHARA,, PALAKKAD-678 012.** ## **BY ADV. SRI.JACOB SEBASTIAN** ## **RESPONDENTS:** |**1**|**MUHAMMED KUTTY**| |---|---| ||**136 ELIKOTTIL HOUSE**| ||**MANKADA, MALAPPURAM DISTRICT**| ||**(OWNER OF LORRY NO., KL-11/G-7191).**| |**2**|**KHALID**| ||**S/O.ABDULLA**| ||**AGED 32 YEARS**| ||**PARAMEL VEEDU,**| ||**THETTILASSERY,KUDUNGAPURAM,,**| ||**MALAPPURAM DISTRICT.**| |**3**|**THE NEW INDIA ASSURANCE CO.LTD**| ||**PERINTHALMANNA.**| |**4**|**MURALIDHARAN.R**| ||**S/O.RAJAN**| ||**KAUSTUBAM**,**19/288,**| ||**WEST YAKKARA,PALAKKAD.**| |**5**|**THE NATIONAL INSURANCE CO.LTD.**| ||**PALAKKAD.**| MACA.No.753 OF 2010 2 ## **R3 BY ADV. SRI.RENIL ANTO KANDAMKULATHY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-03-2021, THE COURT ON 09-03-2021 DELIVERED THE FOLLOWING:** MACA.No.753 OF 2010 3 ## **`P.V.KUNHIKRISHNAN, J`** ## **`--------------------------------------M.A.C.A. No. 753 of 2010 ------------------------------------------`** `Dated this the 9[th] day of March 2021` ## **`JUDGMENT`** ``` The appellant is the claimant in O.P.(M.V). No. 129/2005 on the file of the Motor Accidents Claims Tribunal, Ottappalam. The above claim petition is filed under Section 166 of the Motor Vehicles Act, claiming compensation for the injuries sustained to him in a road traffic accident. The above claim petition was disposed by the Tribunal along with O.P(M.V). No. 130/2005. ``` ``` 2. The short facts are like this:- The petitioner in O.P(M.V). No. 130/2005 was driving vehicle from Karipoor to Palakkad and the petitioner in O.P(M.V). No. 129/2005 was a passenger in the above vehicle. When they reached at the place of accident, the offending lorry bearing Registration No. KL-11/G-7191 driven by the 2[nd] respondent in a rash and negligent manner came from the opposite ``` MACA.No.753 OF 2010 4 ``` direction through the wrong side of the road and dashed against the vehicle bearing Registration No. KL-9/D-7450 and thus the petitioner sustained serious injuries. According to the petitioner, the accident occurred solely due to the rash and negligent driving of the 2[nd] respondent, even though the Police laid charge sheet against drivers of both vehicles, i.e., R2 and R4. R1 is the owner of the lorry bearing Registration No. KL-11/G-7191, R3 and R5 are the insurer of both the vehicles. ``` ``` 3. To substantiate the case, the appellant produced Exhibits A1 to A29 and one witness was examined on the side of the appellant. Exhibits B1 to B3 were also marked on the side of the respondents. After going through the evidence and documents, the Tribunal passed an award allowing the petitioner to recover and realise a sum of Rs. 1,16,780/- (Rupees One Lakh Sixteen Thousand Seven Hundred and Eighty Only) with interest at the rate of 8% p.a., from the date of petition till the date of realisation. Respondent No.4 is directed to pay the amount. The ``` MACA.No.753 OF 2010 5 ``` Tribunal found that the 5[th] respondent is not liable to indemnify the 4[th] respondent. Aggrieved by the above award, this appeal is filed. ``` `4. Heard the learned counsel for the appellant and the` `learned counsels for the Insurance Companies.` ``` 5. The learned counsel submitted that the Tribunal ought not have exonerated the Insurance Company. The Tribunal after considering the entire evidences in the case, came to a definite conclusion that the Insurance Company is not liable to indemnify Respondent No.4. The Tribunal found that the petitioner was travelling in the vehicle with load. Exhibit B1 is a 'liability only Policy' issued by the 5[th] respondent. No evidence is adduced to prove that petitioner was accompanying goods as owner or representative. Therefore, the Tribunal concluded in the following manner:- ``` ``` “So from the FI statement, and scene mahazar, it is evident that the accident was due to the entire negligence of R4 in this ``` MACA.No.753 OF 2010 6 ``` case. Hence, I hold that the accident was due to the negligence of R4, driver-cum- owner of vehicle No.KL-9/D-7450. As per the petitioner, the petitioner was travelling in the vehicle with load. Contention of R5 is that the petitioner was a gratuitous passenger, and hence the company is not liable to indemnify R4. Ext.B1 is a liability only policy issued by R5. No evidence adduced to prove that the petitioner was accompanying goods as owner or representative. Hence, I hold that R5 is not liable to indemnify R4. So R4 alone is liable to pay compensation to the petitioner. R1 to R3 in O.P 129/05 are exonerated from the liability.” ``` ``` 6. I see no reason to interfere with the above finding. Next point raised by the appellant is that the compensation awarded by the Tribunal is too low. According to the appellant he was working as a Manager in a sale shop. The learned counsel submitted that the Tribunal fixed the monthly income of the appellant as Rs. 3,000/-, whereas, his ``` MACA.No.753 OF 2010 7 ``` claim was Rs.7000/- per month. The accident happened in the year 2004. InRamachandrappa v. The Manager, Royal Sundaram [2011(13) SCC 236], the Apex Court fixed the monthly income of a coolie as Rs.4,500/- in the year 2004. In the facts and circumstances of the case, I think, the monthly income can be enhanced to Rs.4,500/- per month. If that is the case, the compensation for disability is to be recalculated like this:- ``` ``` 4500x12x13x6/100=Rs.42,120 /- ``` ``` From the above amount, Rs.28,080/- which is the amount already granted by the Tribunal is to be deducted. Therefore, the enhanced amount, the appellant entitled towards disability is Rs.14,040/- (Rupees Fourteen Thousand and Forty Only). ``` ``` 7. As far as the loss of earning is concerned, the Tribunal taken an amount of Rs.3,000/- for a period of three months. In the light of the fixation of monthly income as Rs.4,500/- loss of earnings can be reassessed in the following manner:- ``` MACA.No.753 OF 2010 8 ## `4500x3=13,500/-.` ``` The Tribunal already awarded an amount of Rs.9,000/-, which is to be deducted from the above amount. Hence, the appellant is entitled an enhanced amount of Rs.4,500/- (Rupees Four Thousand and Five Hundred Only). ``` ``` 8. Even though, the learned counsel argued that the appellant is entitled more amount as compensation on other heads also, I think that the Tribunal considered all the aspects and passed a just and reasonable compensation. No interference is necessary in any other heads. ``` `9. Therefore, the enhanced compensation entitled by` `the appellant can be summarised like this:-` ``` HeadAmount Compensation for disabilityRs.14,040/- Loss of earningsRs.4,500/- TotalRs.18,540/- ``` `10. The appellant is entitled an enhanced` `compensation of Rs.18,540/- (Rupees Eighteen Thousand` MACA.No.753 OF 2010 9 ``` Five Hundred and Forty Only) with interest at the rate of 8% p.a. ``` ``` Therefore, this appeal is allowed in part and the impugned award is modified. The appellant is entitled an amount of Rs.18,540/- (Rupees Eighteen Thousand Five Hundred and Forty Only) as enhanced compensation, with interest at the rate of 8% p.a., from the date of the petition till realisation. Respondent No.4 is directed to pay the enhanced compensation with interest. ``` ``` Sd/- ``` ## **`P.V.KUNHIKRISHNAN`** ## **`JUDGE`** ``` avs ```