Nasar v. MaharooF P.P and The New India Assurance Co. Ltd.

``` 2025:KER:22390 ``` **==> picture [58 x 58] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` FRIDAY, THE 7[TH] DAY OF MARCH 2025 / 16TH PHALGUNA, 1946 ``` ## **`MACA NO. 1318 OF 2015`** ``` AGAINST THE ORDER DATED 23.04.2008 IN OPMV NO.959 OF 2005 OF ``` ``` MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA ``` ## **`APPELLANT/PETITIONER:`** ``` NASAR AGED 38 YEARS S/O. MOOSA,KUTTIYIL HOUSE, CHORODE AMSOM,VAIKKILASSERI DESOM, VATAKARA TALUK,KOZHIKODE DISTRICT ``` ``` BY ADVS. U.P.BALAKRISHNAN C.H.ABDUL RASAC(K/912/2005) ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 MAHAROOF P.P S/O. MAMMED KOYA,PANDAKKALAKAM , KUTTICHIRA,KOZHIKODE 673 304`** - **`2 THE NEW INDIA ASSURANCE CO.LTD, REPRESENTED BY ITS MANAGER, AL-MUBARAK BUILDING,EDODI,VATAKARA, KOZHIKODE 673 101`** ``` BY ADV, SMT. M. MEERA JOHN SRI. VIJU THOMAS ``` **MACA No.1318 of 2015** ``` 2 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:22390 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **MACA No.1318 of 2015** ``` 3 ``` **==> picture [58 x 58] intentionally omitted <==** ## **`2025:KER:22390`** ## **J U D G M E N T** Dated this the 07[th] day of March, 2025 The petitioner in O.P.(M.V.) No.959/2005, on the file of the Motor Accident Claims Tribunal, Vatakara, is the appellant herein. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal). 2. The petitioner filed the above O.P. under Sections 166 and 140 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 05.12.2004. According to the petitioner, on 05.12.2004, while he was riding pillion on a motorcycle bearing No. KL-11-E-2410, the motorcycle overturned and the petitioner, sustained injuries. According to the petitioner the accident occurred due to the negligence of the rider of the Motorcycle. 3. The 1[st] respondent is the owner, and the 2[nd] respondent is the insurer of the Motorcycle. According to the petitioner, the accident occurred due to the negligence of the driver of the offending vehicle. The quantum of compensation claimed in the O.P. is Rs.1,25,000/-. 4. The insurance company filed a written statement, admitting the accident as well as the policy, but disputing the negligence on **MACA No.1318 of 2015** ``` 4 ``` **==> picture [58 x 58] intentionally omitted <==** ## **`2025:KER:22390`** the part of the rider of the offending vehicle. 5. The evidence in the case consists of the documentary evidence Exts.A1 to A4, and B1. No oral evidence was adduced by both sides. 6. After evaluating the evidence on record, the Tribunal found negligence on the part of the driver of the offending vehicle, awarded a total compensation of Rs. 62,587/-, and directed the 1st respondent to pay the same, as the policy was only an act only policy. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner preferred this appeal. 8. Now the point that arises for consideration is the following: _Whether the quantum of compensation awarded by the Tribunal is just and reasonable?_ 9. Heard Sri. U. P Balakrishnan, the learned Counsel appearing for the petitioner/appellant, and Smt. M. Meena John and Sri.Viju Thomas, the learned Standing Counsel for the 2[nd] respondent. 10. The Point: In this case the accident as well as involvement of the offending vehicle are admitted. The Tribunal exonerated the insurer and directed the 1st respondent to pay the compensation, as the **MACA No.1318 of 2015** ``` 5 ``` **==> picture [58 x 58] intentionally omitted <==** ## **`2025:KER:22390`** policy was only act only policy. 11. One of the contentions raised by the learned counsel for the petitioner is regarding the notional income of the petitioner fixed by the Tribunal at Rs.2,000/-. According to the petitioner, he is a salesman in a shop getting a monthly income of Rs.5,000/-. However, the Tribunal fixed the income at Rs.2,000/-. The petitioner could not proved his job or income as claimed in the Original Petition and as such in the light of _**Ramachandrappa**_ _**v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ [2011 (13) SCC 236], the income of the petitioner is fixed as that of a coolie, at Rs.4,500/-. 12. In the accident he sustained the following injuries. _“Communitted fracture of tibia with inter condyler extension and fracture of posterior condyle tibia and pain and deformity of right leg, abrasion on right side of the face, multiplier abrasion on right knee.”_ 13. The petitioner was treated as inpatient for 15 days. However, the petitioner has not produced any Disability Certificate. Therefore, he is not entitled to get any compensation on the head loss of disability. 14. Towards loss of earning, the tribunal has awarded Rs.8000/- being the income for 4 months @ Rs.2000/-. Considering the nature **MACA No.1318 of 2015** ``` 6 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:22390 ``` of the injuries sustained and the percentage of disability suffered by the petitioner, the petitioner might have lost income at least for a period of 6 months. Therefore, towards 'loss of income' the petitioner is entitled to get a sum of Rs.27,000/- (4,500 x 6 months) 15. Towards the head ‘Pain and sufferings’, the Tribunal has awarded Rs.15,000/-, towards the head “Bystander expenses and extra nourishment” Rs.5,400/- was awarded. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side. Nothing was awarded towards loss of amenities. 16. The petitioner sustained serious injuries in the accident and was treated as inpatient for 15 days. Because of the injuries sustained, the percentage of disability suffered and the length of treatment undergone by the petitioner, I hold that the compensation awarded by the Tribunal on the heads ‘pain and sufferings’, and ' bystander expenses and extra nourishment' are on the lower side and hence they are enhanced to Rs.40,000/- and Rs.7,000/respectively. Towards ‘loss of amenities of life' a sum of Rs.30,000/- is awarded. 17. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable. **MACA No.1318 of 2015** ``` 7 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:22390 ``` 18. The Tribunal has exonerated the 2nd respondent from the liability and the 1st respondent was directed to pay the compensation as he was a pillion rider and the vehicle had only act only policy. I do not find any grounds to interfere with the above finding of the Tribunal and as such the 1 st respondent is directed to pay the compensation. 19. Therefore, the petitioner/appellant is entitled to get a total compensation of Rs.1,38,687/-, as modified and recalculated above and given in the table below, for easy reference: |Sl.<br>No.|Head of Claim|Amount awarded by<br>Tribunal (in Rs.)|Amount Awarded in<br>Appeal (in Rs.)| |---|---|---|---| |**1**|**Loss of earning**|**8,000/-**|**27,000/-**| |2|Bystander expenses|5,400/-|7,000/-| |3|Extra nourishment||| |**4**|**Pain and suffering**|**15,000/-**|**40,000/-**| |**5**|**Loss of amenities**|Nil|**30,000/-**| |6|Transportation|2,000/-|2,000/-| |7|Clothing|Nil|500/-| |8|Future medical expense|27,187/-|27,187/-| |9|Mental Shock|5000/-|5,000/-| ||Total|62,587/-|1,38,687/-| ||Enhanced|Rs.76,100/-|| 20. In the result, this Appeal is allowed in part, and Respondent No.1 is directed to deposit a total sum of Rs.1,38,687/- (Rupees **MACA No.1318 of 2015** ``` 8 ``` **==> picture [58 x 58] intentionally omitted <==** **`2025:KER:22390`** One Lakh Thirty Eight Thousand Six Hundred and Eight Seven Only), less the amount already deposited, if any, along with interest @8% per annum, from the date of the petition till deposit/realisation, excluding interest for a period of 2455 days, the period of delay in filing the appeal, with proportionate costs, within a period of two months from today. On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioner, excluding court fee payable, if any, without delay, as per rules. **Sd/C. PRATHEEP KUMAR, JUDGE** HKH/07.03.2025