Muhammedkutty S/O Moideen Bava v. P.M. Shamsu and The New India Assurance Co. Ltd.

1 **MACA.No.2063 OF 2011** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942** ## **MACA.No.2063 OF 2011** **AGAINST THE AWARD IN OPMV 715/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR DATED 6.7.2010** ## **APPELLANT/S:** **MUHAMMEDKUTTY S/O. MOIDEEN BAVA, PUTHENPURAYIL HOSUE, VELLYAMCODE, AYYOLLICHIRA PONNANI, MALAPPURAM.** ## **BY ADV. SRI.T.C.SURESH MENON** ## **RESPONDENT/S:** |**1**|**P.M.SHAMSU**| |---|---| ||**S/O. HAMSA MAKKINTEPURAKKAL HOUSE,**| ||**PUTHUPONNANI.P.O., PONNANI SOUTH, MALAPUPRAM**| ||**DISTRICT. PIN-679577.**| |**2**|**NOUSHAD, S/O. USMAN**| ||**KOYANIKANGATH HOUSE, PUTHUPONNANI, MALAPPURAM**| ||**DISTRICT-679577.**| |**3**|**THE NEW INDIA ASSURANCE CO.LTD.**| ||**BRANCH OFFICE 1ST FLOOR, TARRIFF BAZAR, OPP: TOWN**| ||**HALL, TIRUR-676101.**| ||**R1 BY ADV. SRI A.A ZIYAD RAHMAN BY ORDER NO MEMO**| ||**R1 BY ADV. SRI.P.K.BABU**| ||**R3 BY ADV. SRI A.A ZIYAD RAHMAN (BY ORDER) NO MEMO**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 1.3.2021, THE COURT ON 01-03-2021 DELIVERED THE FOLLOWING:** 2 **MACA.No.2063 OF 2011** ## **C.S.DIAS, J. ====================== MACA No.2063 of 2011** **====================== Dated this the 1[st] day of March, 2021** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.715/2009 on the file of the Motor Accidents Claims Tribunal, Tirur. The respondents in the appeal were the respondents in the claim petition. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The concise case of the petitioner in the claim petition was that, on 11.10.2008 while he was travelling as pillion rider on a motor cycle bearing registration No.KL-54A-865, an auto rickshaw bearing registration No.KL-8D-9913 driven by the second respondent, in a rash and negligent manner, hit the motor cycle and the petitioner was thrown on the road. The petitioner sustained serious injuries and he was treated as an inpatient for 20 days. The first respondent is the registered owner of the auto rickshaw and the third respondent is the insurer. Hence, the petitioner is entitled for a compensation of 3 **MACA.No.2063 OF 2011** Rs.1,71,000/- under various heads. 3. The respondents 1 and 2 were set ex parte. 4. The third respondent filed a written-statement admitting the insurance policy of the offending vehicle. However, the third respondent contended that it had not verified the driving licence of the second respondent and that the accident occurred due to the rash and negligent driving of the petitioner. Hence, the third respondent prayed that the claim petition be dismissed. 5. The petitioner produced and marked Exts A1 to A8 in evidence. Neither party adduced any oral evidence. 6. The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by directing the third respondent to pay the petitioner an amount of Rs.34,500/- with interest and costs as compensation. 7. The comparative table of compensation that was claimed by the petitioner and that was awarded by the Tribunal is as follows:- |SI<br>No|Head of claim|Amount claimed<br>(in rupees)|Amount awarded by<br>the Tribunal(in<br>rupees)| |---|---|---|---| |1|Loss of earnings (Total)|24,000/-|9,900/-| 4 ## **MACA.No.2063 OF 2011** |2|Loss of earnings<br>(Partial)|Nil|Nil| |---|---|---|---| |3|Medical and miscellaneous<br>expenses|10,000/-|4,301/-| |4|Future treatment|5,000/-|Nil| |5|Bystander expenses|6,000/-|3,000/-| |6|Transportation expenses|3,000/-|1,000/-| |7|Extra nourishment|2,000/-|2,000/-| |8|Damage to clothing, etc|1,000/-|300/-| |9|Pain and sufferings|20,000/-|12,000/-| |10|Loss of dependency|Nil|Nil| |11|Loss of consortium|NIl|Nil| |12|Loss of love and affection|Nil|Nil| |13|Loss of earning power|Nil|Nil| |14|Compensation<br>towards<br>loss of permanent/partial<br>disability|1,00,000/-|Nil| |15|Loss of amenities and<br>conveniences etc.|Nil|2,000/-| |16|Any other heads|Nil|Nil| ||Total claim|1,71,000/-|34,501/- rounded to<br>34,500/-| 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in the appeal. 9. As the third respondent – the Insurance Company – had admitted the insurance policy, notice to the respondents 1 and 2 was dispensed with by order dated 31.1.2012. 10. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the third respondent – the Insurance Company. 11. The question that emanates for consideration in this 5 **MACA.No.2063 OF 2011** appeal is whether the quantum of compensation awarded by the Tribunal is just and reasonable. 12. 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 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 non-violation of the principle of equitability. 13. It is an undisputed fact that the petitioner sustained injuries on account of the accident on 11.10.2008 due to the rash and negligent driving by the second respondent. The petitioner was 45 years at the time of accident. 14. When this appeal came up for consideration on 23.12.2011, the appellant/petitioner was directed to be present before this Court. A Division Bench of this Court after seeing the petitioner assessed his permanent disability at 15%. The said order has become final. 15. The Tribunal by the impugned award has not awarded 6 **MACA.No.2063 OF 2011** any amount towards the permanent disability of the petitioner, on the ground that the petitioner had not produced any records to substantiate his disability. In view of the present evaluation and assessment made by the Division Bench, the petitioner's disability is fixed at 15%. 16. The Tribunal by the impugned award after finding that the petitioner was a fish merchant fixed his notional income at Rs.3,300/- per month. 17. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC** **735]** has fixed the notional income of a coolie worker at Rs.4,500/- in the year 2004 and that of a vegetable vendor at Rs.6,500/- in the year 2006, respectively. Similarly, this Court in **Soman vs. Jinesh James and others [ILR 2020 (3) Kerala 1003]** has fixed the notional income of a coolie worker at Rs.7,500/- in the year 2010. 18. Following the parameters laid down by the Hon'ble Supreme Court and this Court in the aforecited decisions and taking into consideration the fact that the petitioner was 45 7 **MACA.No.2063 OF 2011** years of age at the time of accident and was a fish merchant, I am of the considered opinion that the petitioner's notional income can safely be fixed at Rs.6,500/- per month. 19. In view of the refixation of the notional income of the petitioner and his disability being fixed at 15% by a Division Bench of this Court, I am of the firm opinion that the petitioner is entitled for compensation for loss due to permanent disability. 20. In view of the refixation of the notional income of the petitioner, the compensation under the head loss of earnings of the petitioner is refixed at Rs.19,500/- instead of Rs.9,900/fixed by the Tribunal. 21. Going by the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121], National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** and **Pappu Deo Yadav Vs. Naresh Kumar and others [AIR 2020 SC 4424]** , I hold that the petitioner is also entitled for compensation for future prospects. Taking into consideration that the petitioner was aged 45 years at the time of accident and that the relevant multiplier is 14, the petitioner is entitled for future prospects at 25%. 8 **MACA.No.2063 OF 2011** 22. In light of the refixation of petitioner's notional income and disability being fixed at 15% and that he is entitled for compensation for future prospects, I hold that the petitioner is entitled to compensation under the head loss of disability with future prospects @ Rs.2,04,750/-. ## **Other heads of claim** 23. With respect to other heads of claim, I find that the Tribunal has awarded reasonable and just compensation to the petitioner. 24. On an overall appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court and this Court in the aforecited decisions, I am of the firm opinion that the petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |SI<br>No|Head of claim|Amount claimed<br>(in rupees)|Amount<br>awarded by the<br>Tribunal(in<br>rupees)|Amounts<br>modified and re<br>calculated by<br>this Court<br>(in rupees)| |---|---|---|---|---| |1|Loss of earnings<br>(Total)|24,000/-|9,900/-|19,500/-| |2|Loss of<br>earnings<br>(Partial)|Nil|Nil|Nil| |3|Medical<br>and<br>miscellaneous<br>expenses|10,000/-|4,301/-|4,301/-| 9 ## **MACA.No.2063 OF 2011** |4|Future treatment|5,000/-|Nil|Nil| |---|---|---|---|---| |5|Bystander expenses|6,000/-|3,000/-|3,000/-| |6|Transportation<br>expenses|3,000/-|1,000/-|1,000/-| |7|Extra nourishment|2,000/-|2,000/-|2,000/-| |8|Damage to clothing,<br>etc|1,000/-|300/-|300/-| |9|Pain and sufferings|20,000/-|12,000/-|12,000/-| |10|Loss of dependency|Nil|Nil|Nil| |11|Loss of consortium|Nil|Nil|Nil| |12|Loss of love and<br>affection|Nil|Nil|Nil| |13|Loss<br>of<br>earning<br>power|Nil|Nil|Nil| |14|Compensation<br>towards<br>loss<br>of<br>permanent/partial<br>disability|1,00,000/-|Nil|Nil| |15|Loss of amenities and<br>conveniences etc.|Nil|2,000/-|2,000/-| |16|Any other heads|Nil|Nil|Nil| |17|Loss due to disability<br>with future prospects|Nil|Nil|2,04,750/-| ||Total claim|1,71,000/-|34,501/-<br>rounded to<br>34,500/-|2,48,851/-| 25. The petitioner had claimed only an amount of Rs.1,71,000/- in the claim petition. However, after following the aforecited decisions, I find that the petitioner is entitled to a compensation of Rs.2,48,851/- . The Hon'ble Supreme Court in **Nagappa vs. Gurudayal Singh [ 2003 (1) KLT 115(SC)** has held that there is no restriction in awarding more compensation than the amount claimed in the claim petition. In light of the above pronouncement of law, I hold that the petitioner is 10 **MACA.No.2063 OF 2011** entitled for the aforesaid amount as compensation,which is just and reasonable. In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.2,14,350/- (Rupees Two Lakh Fourteen Thousand Three Hundred and Fifty only) with interest @ of 9% p.a on the enhanced compensation from the date of petition till the date of realisation with proportionate costs. The third respondent shall deposit the additional compensation granted in this appeal, before the Tribunal with interest and proportionate costs, within a period of two months from the date of receipt of a certified copy of the judgment, after deducting the liability, if any, of the appellant/petitioner towards balance court fee and legal benefit fund. The disbursement of compensation to the appellant/petitioner shall be made, in accordance with law. **Sd/-** **C.S.DIAS JUDGE** SKS/1.3.2021