Moidu K v. Moidu P and others

1 MACA No.2772 of 2012 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 1[ST] DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943 MACA NO. 2772 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 275/2010 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA** ## **APPELLANT/S:** MOIDU K AGED 54 YEARS S/O. RAYIN, KOLAVALLY HOUSE, MATTILAYAM POST, NIRAVILPUZHA, MANANTHAVADY TALUK, PIN-670 731. BY ADV SRI.N.J.ANTONY ## **RESPONDENT/S:** 1 MOIDU P AGED 34 YEARS S/O. PARAKKA AVULLA, KOTTAYAD HOUSE, VELLAMUNDA, MANANTHAVADY TALUK, PIN-670 731. (DRIVER OF BUS NO.KL-10Z/0520. D.L.NO.12/1860/1996). 2 MUHAMMAED ABDULLA AGE AND FATHER'S NAME NOT KNOWN, MUMTHAZ MANZIL, PUTHARIKKAL, MALAPPURAM DISTRICT-676 505. (OWNER OF BUS NO.KL-10Z/0520). 3 UNITED INDIA INSURANCE CO. KALPETTA-673 121. (POLICY NO.1016013109P000246155). BY ADVS. SRI.M.HARISHARMA -R3 SRI.D.NARENDRANATH **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2772 of 2012 ## **C.S.DIAS, J.** ## **====================== MACA No.2772 of 2012 ====================== Dated this the 1[st] day of February, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.275/2010 on the file of the Motor Accident Claims Tribunal, Kalpetta. 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 sustained to him in an accident on 3.5.2010. It was his case that, on the above said date, while he was walking along the public road at Korome, a bus bearing registration No.KL10/Z 0520, driven by the first respondent in a rash and negligent manner, hit the appellant. The appellant was thrown onto the road and he sustained multiple injuries 3 MACA No.2772 of 2012 including a fracture of both bones of his left leg, fracture of pubic ramus and fracture above his right ankle. He was treated at the District Hospital, Mananthavady and at the Leo Hospital, Kalpetta, for a period of 17 days. The second respondent was the owner and the third respondent was the insurer of the bus. The appellant was a coolie worker -cum - toys merchant and was earning a monthly income of Rs.10,000/-. Hence, the appellant claimed a compensation of Rs.3,05,000/- from the respondents, which claim was limited to Rs.2,00,000/-. 3. The respondents 1 and 2 did not contest the proceeding and were set ex parte. 4. The third respondent/insurer had filed a written statement contending that the accident occurred due to the negligence of the appellant. However, the third respondent admitted that the bus had a valid insurance It was also stated that the coverage. 4 MACA No.2772 of 2012 compensation claimed was excessive. 5. The appellant had produced and marked Exts A1 to A9 in evidence. The disability certificate issued by the District Hospital, Mananthavady was marked as Ext C1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to recover from the third respondent an amount of Rs.1,07,380/- with interest and cost . 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.N.J Antony, the learned counsel appearing for the appellant/petitioner and Sri.M.Harisharma, the learned counsel appearing for the third respondent/insurer. 9. The question that arises for consideration in the appeal is whether the quantum of compensation 5 MACA No.2772 of 2012 awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Ext A4 charge-sheet laid by the Vellamunda Police, in crime No.184/2010 proves that the accident occurred due to the negligence of the first respondent. Indisputably, the second respondent was the owner and the third respondent was the insurer of the bus. The respondents have not let in any evidence to discredit Ext A4 charge-sheet. The third respondent has also not proved that the second respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Notional Income** 11. The appellant had claimed that he was a coolie worker cum toys merchant and was earning a monthly income of Rs.10,000/-. For the want of materials, the Tribunal fixed the notional monthly income of the 6 MACA No.2772 of 2012 appellant at Rs.3,000/-. 12. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 13. Following the yardstick in the above-cited decision, and considering the fact that the accident occurred in the year 2010, I re-fix the notional monthly income of the appellant at Rs.7,500/-. ## **Loss of earnings** 14. As per Ext C1 disability certificate, it is proved that the appellant had sustained fracture of both bones of his right leg lower third and fracture of pubic ramus superior and inferior left and inferior right. Therefore, necessarily, he was indisposed for a period of four months. 7 MACA No.2772 of 2012 15. In view of the refixation of the notional monthly income of the appellant at Rs.7,500/-, I award him an amount of **Rs.30,000/-** under the head 'loss of earnings' instead of Rs.9,000/- awarded by the Tribunal. ## **Multiplier** 16. Admittedly, the appellant was aged 52 years at the time of the accident. In view of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009)** **6 SCC 121]** , the relevant multiplier to be adopted is '11'. ## **Disability** 17. As per Ext C1 the appellant has sustained a permanent disability of 13%. On appreciation of Ext C1, it is seen that the appellant has a malunited fracture of the left side of his pubis. Accordingly the Tribunal fixed his permanent disability at 11%. I confirm the said finding and fix the appellant's functional disability at 8 MACA No.2772 of 2012 11%. ## **Loss due to disability** 18. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.7,500/-, the multiplier at '11 and the functional disability at 11%, I award him an amount of **Rs.1,08,900/-** towards loss due to disability, instead of Rs.51,480/- awarded by the Tribunal. ## **Bystander expenses and Extra Nourishment** 19. It is proved and established as per Ext A7 discharge summary and Ext C1 disability certificate that the appellant was treated as an inpatient for a period of 17 days. The Tribunal has awarded only an amount of Rs.1,700/- each under the heads bystander expenses and extra nourishment. According to me, the amounts awarded is too meagre. 20. On a consideration of the fact that the accident occurred in the year 2010, I award the 9 MACA No.2772 of 2012 appellant an amount of Rs.500/- per day for a period of 17 days towards bystander expenses, which works out to **Rs.8,500/** - and an amount of Rs.250/- per day for a period of 17 days towards extra nourishment, which amounts to **Rs.4,250/-.** ## **Pain and sufferings and Loss of amenities** 21. The Tribunal has awarded only an amount of Rs.10,000/- under the head 'pain and sufferings'. This is abysmally low. 22. Taking note of the fact that the appellant was treated as an inpatient for a period of 17 days; that he was indisposed for a period of four months and that he has suffered a functional disability of 11%, I award him a further amount of Rs.20,000/- under the head 'pain and sufferings' and an amount of Rs.10,000/- under the head 'loss of amenities'. ## **Other heads of compensation** 23. With respect to the other heads of claim, I find 10 MACA No.2772 of 2012 that the Tribunal has awarded reasonable and just compensation. 24. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the aforecited precedents, I hold that the appellant/petitioner is entitled to enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|9,000/-|30,000/-| |2|Transportation expenses|2,000/-|2,000/-| |3|Extra nourishment|1,700/-|4,250/-| |4|Bystander expenses|1,700/-|8,500/-| |5|Medical expenses|31,000/-|31,000/-| |6|Pain and sufferings|10,000/-|30,000/-| |7|Damage to clothing|500/-|500/-| |8|Loss due to disability|51,480/-|1,08,900/-| |9|Loss of amenities etc|Nil|10,000/-| ||Total|1,07,380/-|2,25,150/-| In the result, the appeal is allowed, by enhancing the compensation by an amount of 11 MACA No.2772 of 2012 **Rs.1,17,770/-** (Rupees One Lakh Seventeen Thousand Seven Hundred and Seventy only) with interest at the rate of 7% per annum on the enhanced compensation from the date of claim petition till the date of realisation, after deducting interest for a period of 215 days, i.e., the period of delay in filing the appeal and as ordered by this Court on 20.10.2021 in C.M Appln No.1/2012, and a cost of Rs.10,000/-. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of 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/- sks/1.2.2022 **C.S.DIAS, JUDGE**