Mohammed P. v. M/s Agin Road Ways, C.K. Ussain and United India Insurance Co. Ltd. (MACA No. 1420 of 2009)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 8[TH] DAY OF JULY 2021 / 17TH ASHADHA, 1943** **MACA NO. 1420 OF 2009** **AGAINST THE ORDER/JUDGMENT DATED 10.12.2008 IN OP(MV) 624/2003 OF II ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE APPELLANT/CLAIMANT:** MOHAMMED.P., 45 YEARS, S/O.MARAKKARUTTY, POOVAMPURATH HOUSE,, KARANTHUR P.O., KUNNAMANGALAM, KOZHIKODE. BY ADV SRI.K.M.FIROZ ## **RESPONDENTS/RESPONDENTS:** 1 MANAGING PARTNER, M/S.AGIN ROAD WAYS, NO.37/5,, MOOLAKKADAVU, PANDAKKAL, MAHE. 2 C.K.USSAIN, S/O.POKKER NO.62/02, KARULAM POYIL, KODUVALLY AMSOM DESOM, VENNAKKODE, KODUVALLY P.O. 3 THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO.LTD., WHITE LINES BUILDING, KALLAI ROAD, KOZHIKODE. BY ADVS. SRI.PMM.NAJEEB KHAN SRI.RAJESH THOMAS THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **MACA NO. 1420 OF 2009 2** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.624 of 2003 on the file of the II Additional Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents in the claim petition. 2. The concise facts in the claim petition, relevant for the determination of the appeal are: on 9.11.2002 while the appellant was walking along the Kummangalam - Kozhikode road, a lorry bearing Reg. No.PY-03-2334 driven by the 2nd respondent in a rash and negligent manner ran over the right leg of the appellant. The appellant sustained serious injuries and was treated as an inpatient from 9.11.2002 to 17.1.2003, i.e., for a period of 69 days at the Medical College Hospital, Kozhikode. The 1st respondent was the owner of the lorry and the 3rd respondent was the insurer of ## **MACA NO. 1420 OF 2009 3** the lorry. The appellant was a head load worker by profession and earning a monthly income of Rs.10,000/-. The appellant claimed a total compensation of Rs.3,24,850/-, which was limited to Rs.3,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4. The 3rd respondent filed a written statement denying the insurance coverage of the lorry at the time of accident. Therefore, it was contended that the 3rd respondent was not liable to pay any amount as compensation. 5. Nevertheless, the 3rd respondent subsequently filed an additional written statement admitting the insurance coverage of the lorry. 6. The appellant got himself examined as PW1 and marked Exts.A1 to A6 in evidence. 7. The Tribunal, after evaluating the pleadings **MACA NO. 1420 OF 2009 4** and materials on record, by the impugned award allowed the claim petition in part, by permitting the appellant to recover an amount of Rs.1,06,500/- with interest @ 7 % per annum from the date of filing of the claim petition till the date of payment and Rs.400/- as costs from the 3rd respondent. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard, the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the 3rd respondent/ Insurance Company. 10. The sole question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 11. A constitution Bench of the Hon'ble Supreme Court in _**National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680)**_ , has held that Section 168 **MACA NO. 1420 OF 2009 5** of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equitability. 12. Ext.A1 FIR, Ext.A2 scene mahazar and Ext.A3 wound certificate proves that the accident occurred on account of the negligence on the part of the 2nd respondent, who drew the offending vehicle in a rash and negligent manner. Undisputedly, the 3rd respondent was the insurer of the vehicle and the 1st respondent was the owner. Therefore, the 3rd respondent is liable to indemnify the liability of the 1st respondent to pay the compensation on account of the accident. **Notional Income** ## **MACA NO. 1420 OF 2009 6** 13. The appellant had claimed to be a head load worker by profession and earning an amount of Rs.10,000/- per month. The Tribunal, for want of materials, fixed the notional income of the appellant is Rs.2,500/- per month. 14. The Hon'ble Supreme Court in _**Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd., (2011 (13) SCC 236),**_ the Hon'ble Supreme Court has fixed the notional income of a Coolie Worker in the year 2004 at Rs.4,500/per month. 15. Following the parameters laid down in the aforesaid decision, I refix the notional income of the appellant at Rs.4,000/- per month, considering the fact that the accident occurred on 9.11.2002. ## **Loss of earnings** 16 **.** Undisputedly, the appellant was hospitalised for **MACA NO. 1420 OF 2009 7** a period of 69 days. He was advised complete bed rest for a period of six months. Therefore, he was indisposed for the said period. In view of the refixation of the notional income of the appellant at Rs.4,000/-, I hold that he is entitled for 'loss of earnings' at Rs.24,000/-, i.e, an enhancement of Rs.9,000/-. ## **Disability** 17. Even though the appellant had not produced any documents to prove his disability, the Tribunal based on the available materials and after seeing the appellant, who was examined as PW1, fixed the disability of the appellant at 10%. In view of the assessment made by the Tribunal, after seeing the appellant, I confirm the finding of the Tribunal with regard to fixation of the disability of the appellant at 10%. ## **Multiplier** 18. It is seen that the Tribunal has adopted the **MACA NO. 1420 OF 2009 8** multiplier at '16'. In view of the law laid down in _**Sarala Verma v. Delhi Transport Corporation (2009) 6 SCC**_ _**121)**_ and in _**Pranay Sethi**_ (supra), the correct multiplier is '15'. Thus, I fix the disability at '15'. ## **Loss due to disability** 19. In view of the fixation of the notional income of the appellant at Rs.4,000/-, the multiplier at 15% and the disability at 10%, I refix the compensation for 'loss due to disability' at Rs.72,000/-, instead of Rs.48,000/-, i.e, an enhancement of Rs.33,000/-. ## **Loss of amenities** 20. The appellant had claimed an amount of Rs.75,000/- under the head 'loss of earning power/amenities'. The Tribunal awarded only an amount of Rs.5.000/-, which according to me is on the lower side. Taking into consideration the fact that the appellant sustained serious injuries on his leg and was hospitalised ## **MACA NO. 1420 OF 2009 9** for a period of 69 days and incapacitated for 6 months, I refix the compensation under the head 'loss of amenities' at Rs.15,000/-, i.e an enhancement of Rs.10,000/-. ## **Pain and sufferings** 21 **.** The appellant had claimed an amount of Rs.50,000/- towards pain and sufferings. The Tribunal awarded only an amount of Rs.15,000/-. Again taking into account the above mentioned factors, especially the injury sustained by the appellant and that he was incapacitated for a period of six months, I enhance the compensation by a further amount of Rs.7,000/-. ## **Bystander expenses** 22. It is on record that the appellant was hospitalized for a period of 69 days at the Medical College Hospital, Kozhikode. The Tribunal has awarded only an amount of Rs.7,000/-, which is on the lower side. Taking into consideration the period of hospitalisation, I ## **MACA NO. 1420 OF 2009 10** fix the 'bystander expenses' at Rs.250/- per day for a period of 69 days, i.e., a total amount of Rs.17,250/-, namely, an enhancement of Rs.10,250/-. 23. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 24. On an over all re-appreciation of the pleadings and materials on record, the law laid down in the aforecited decisions, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Head of claim|Amount<br>Awarded by<br>the Tribunal<br>(in Rs.)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---| |Transportation<br>expenses|500/-|500/-| ## **MACA NO. 1420 OF 2009 11** |Extra nourishment|1,500/-|1,500/-| |---|---|---| |Bystander<br>expenses|7,000/-|17,250/-| |Damages<br>to<br>clothing|500/-|500/-| |Pain and sufferings|15,000/-|22,000/-| |Loss of earnings|15,000/-|24,000/-| |Medical Expenses|14,000/-|14,000/-| |Loss of amenities|5,000/-|15,000/-| |Loss<br>due<br>to<br>dissability|48,000/-|72,000/-| |Total|1,06,500/-|1,66,750/-| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.60,250/- with interest at the rate of Rs.7% per annum from the date of petition till the date of deposit after deducting a period of 43 days, i.e., the period of delay in filing the appeal, as ordered by this Court in order dated **MACA NO. 1420 OF 2009 12** 30.3.2021 in C.M.Appln.No.1 of 2009, and proportionate costs. The 3rd respondent shall deposit the enhanced compensation with interest and costs before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** pm