Mumthas v United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 2[ND] DAY OF SEPTEMBER 2021 / 11TH BHADRA, 1943** **MACA NO. 975 OF 2011** **AGAINST THE AWARD IN OPMV 1363/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI, MALAPPURAM** **APPELLANT/PETITIONER:** **MUMTHAS, AGED 45 YEARS,W/O ABDUL HAMEED ANUGRAAM HOUSE, POITHINI, PARAKKALATHINGAL,, KANCHIRAPARAMBA P.O., AIR PORT KONDOTTY. BY ADV SRI.P.SAMSUDIN** ## **RESPONDENT/3RD RESPONDENT:** **UNITED INDIA INSURANCE CO. LTD. BRANCH OFFICE, PANDI AUTOMOBILE BUILDING,, MALAPPURAM-679 505.** **BY ADV SRI.A.A.MOHAMMED NAZIR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.975/2011 -:2:- Dated this the 2[nd] day of September, 2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.1363/2006 on the file of the Motor Accidents Claims Tribunal,Manjeri. The respondent in the appeal was the 3rd respondent before the Tribunal. As the respondent had admitted the insurance policy, the appellant has not impleaded the respondents 1 and 2 before the Tribunal as parties in the appeal. Therefore, the parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioner had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that she sustained in an accident on 09.03.2006. 3. The concise case of the petitioner in the claim petition, relevant for the determination of the appeal is that; on 09.03.2006, while she was travelling in an autorickshaw bearing registration No. KL 10V 3162 M.A.C.A.No.975/2011 -:3:- (autorickshaw) from Calicut Airport to Kondotty, the autorickshaw was hit by a car bearing registration No. KL 11 B 6525 (car) driven by the 1st respondent in a rash and negligent manner. The petitioner sustained serious injuries and was rushed to the Medical College Hospital, Kozhikode, where she was treated as inpatient for a period of 55 days. The car was owned by the 2nd respondent and insured with the 3[rd] respondent. The petitioner was a coolie worker and earning a monthly income of Rs.3000/-. The petitioner claimed an amount of Rs.2,50,000/- as compensation from the respondents. 4. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 5. The third respondent filed a written statement, admitting that the car had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the driver of the autorickshaw. M.A.C.A.No.975/2011 -:4:- 6. The petitioner produced and marked Exhibits A1 to A8 series in evidence. The disability certificate issued by the Medical Board was marked as Exhibit ‘X1’. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by holding that the petitioner was entitled for compensation of Rs.1,03,735/- with interest and cost. However, the Tribunal held that, as the driver of the autorickshaw had contributed to the accident, 50% of the compensation has to be deducted towards contributory negligence. Accordingly, the petitioner was permitted to realise only an amount of Rs.51,868/with interest at the rate of 9% per annum from the date of petition till the date of realisation. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal and the finding of the Tribunal that the petitioner is guilty for contributory negligence, the petitioner is in appeal. M.A.C.A.No.975/2011 -:5:- 9. Heard; Sri.P.Samsudin, the learned counsel appearing for the appellant/petitioner and Sri.A.A.A Mohammed Nazir, the learned counsel appearing for the respondent/insurer. 10. The questions that arise for consideration in the appeal are :- (i) whether the finding of the Tribunal that the petitioner was guilty for composite negligence is justifiable? - (ii) whether the quantum of compensation - awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 11. The petitioner had produced Exhibit A1 FIR to prove that the accident occurred due to the negligence of the 1st respondent - the driver of the car. Admittedly, the respondents have not let in any contra evidence. However, the Tribunal for the reason that there was a collusion between two vehicles, fixed M.A.C.A.No.975/2011 -:6:- contributory negligence on the driver of the autorickshaw and accordingly held that 50% of the compensation amount payable to the petitioner has to be deducted. 12. On a re-appreciation of the pleadings and materials on record, I am of the firm opinion that the course adopted by the Tribunal is erroneous and wrong. 13. Firstly, there is no pleading or proof regarding contributory or composite negligence in the case. Without such material, the Tribunal could not have deducted 50% of the compensation amount payable to the petitioner on the ground of contributory negligence on the side of the driver of the autorickshaw. 14. Thus, I set aside the finding that there was contributory negligence on the part of the driver of the autorickshaw, and answer question No.(i) in favour of the petitioner by holding that she is entitled to the M.A.C.A.No.975/2011 -:7:- entire amount of compensation awarded in this judgment. ## **Notional Income** 15. The petitioner claimed that she was a coolie worker by profession and earning a monthly income of Rs.3000/-. The Tribunal fixed the monthly income of the petitioner at Rs.2500/- 16. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 17. Following the ratio in the afore-cited decision and keeping in mind the fact that the accident occurred in the year 2006, I re-fix the notional income of the petitioner at Rs.3000/- per month, as claimed in the claim petition. M.A.C.A.No.975/2011 -:8:- ## **Loss of earnings** 18. It is on record, that the petitioner was indisposed for a period of six months due to the accident. In view of the re-fixation of the notional monthly income of the petitioner at Rs.3000/-, I hold that she is entitled to an amount of Rs.18,000/towards loss of earnings. ## **Loss due to disability** 19. It is proved by Exhibit X1 that the petitioner has a permanent disability of 10%. The petitioner was admittedly, 40 years at the time of accident. Therefore, the relevant multiplier is ‘15’. 20. Keeping in mind, the above parameters, namely, the age of petitioner at 40, monthly income at Rs.3000/-, the disability at 10% and the multiplier at ‘15’, I re-fix the compensation for loss due to disability at Rs.54,000/-, instead of 45,000/- fixed by the Tribunal. 21. With respect to the other heads of M.A.C.A.No.975/2011 -:9:- compensation, I find that the Tribunal has awarded reasonable and just compensation. 22. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decision, I hold that the petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. Accordingly, I answer question No.(ii) in favour of the petitioner. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modifed<br>and<br>recalculated<br>by this<br>Court| |---|---|---|---| |1|Loss of earnings|15000|18000| |2|Transport<br>expenses|1000|1000| |3|Damage<br>to<br>clothing|250|250| |4|Bystander expense|5500|5500| |5|Extra nourishment|250|250| |6|Medical expenses|6735|6735| |7|Pain and suferings|25000|25000| |8|Loss of amenities|5000|5000| M.A.C.A.No.975/2011 -:10:- |9|Loss<br>due<br>to<br>disability|45000|54000| |---|---|---|---| ||**Total **|**1,03,735-50%**<br>**=51,868**|**1,15,735**| In the light of the setting aside of the contributory negligence of 50% fixed by the Tribunal, I hold that the appellant/petitioner is entitled for a further amount of Rs.63,867/- (i.e.,balance amount of Rs.51,868/- which was deducted towards contributory negligence and an amount of Rs.12,000/towards enhanced compensation) with interest at the rate of 7% per annum from the date of petition till the date of deposit, after deducting interest for a period of 51 days i.e., the period of delay in filing the appeal and as ordered by this Court on19.03.2021 in C.M.Appln. No.1518/2011, and a cost of Rs.3000/-. The respondent/insurer shall deposit the enhanced compensation amount 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. The M.A.C.A.No.975/2011 -:11:- Tribunal shall disburse the above compensation amount to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS,JUDGE** rmm