Nawas v. Kunjumon @ Moidunny Haji and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 3[RD] DAY OF FEBRUARY 2022 / 14TH MAGHA, 1943** ## **MACA NO.2433 OF 2009** **AGAINST THE AWARD IN O.P.(MV) NO.3176/2002 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR. APPELLANT:** **NAWAS,** **MALIYEKKAL HOUSE, KOONAMMOOCHY P.O., TRICHUR.** **BY ADV SRI.SHEJI P.ABRAHAM** **RESPONDENTS:** - **1 KUNJUMON @ MOIDUNNY HAJI, S/O.VEERANKUTTY, CHEERAMPARAMBIL HOUSE, P.O.KAVUKODE, CHALASSERY, PALAKKAD.** - **2 MUSTHAFAL FAIZY, PADINKARPATTAYIL HOUSE, PURAYAR, MALAPPURAM.** - **3 THE NEW INDIA ASSURANCE CO.LTD., K.H.BUILDING, THAZHAPADAM, TIRUR.** - **4 KUNJUMON MOIDUNNY HAJI S/O.VEERANKUTTY, CHEERAMPARAMBIL HOUSE, P.O.KAVUKODE, CHALASSERY, PALAKKAD.** - **5 ORIENTAL INSURANCE CO.LTD., PRANAVAM, MELE PATTAMBI, PATTAMBI. BY ADVS.SRI.GEORGE CHERIAN THIRUVALLA SRI.V.C.MADHAVANKUTTY SRI.SANTHEEP ANKARATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.S. DIAS, J. ----------------------------------------------------MACA No.2433 of 2009 ----------------------------------------------------Dated this the 3[rd] day of February, 2022** ## **JUDGMENT** The appellant was the petitioner in O.P.(MV) No.3176/2002 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed a 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 12.11.2002. It was his case that, on the aforesaid date, while he was riding his motorcycle bearing registration No.KL-10/M-3832, when he reached a place name Koonammoochi, another motorcycle bearing registration No.KL-9/F6283 (offending motorcycle), driven by the first respondent in a rash and negligent manner, hit the motorcycle of the appellant. The appellant fell to the ground and suffered multiple injuries including a **MACA NO.2433 OF 2009** -3- fracture of the mandible, head injury and loss of three teeth. The motorcycle was owned by the additional fourth respondent and insured with the additional fifth respondent. Though the appellant had impleaded as additional respondents 2 and 3 as parties before the Tribunal, they were deleted from the party array. But, the Tribunal had in the impugned award showed them as parties in the claim petition. The appellant stated that he was a mechanic in a workshop at Guruvayoor and earning a monthly income of Rs.3,500/-. Hence, the appellant claimed a compensation of Rs.2,75,000/- from the respondents, which claim was limited to Rs.1,50,000/-. 3. The respondents 1 and 2, though entered appearance, did not file any written statement. The third respondent had filed a written statement denying issuing an insurance policy in favour of the offending **MACA NO.2433 OF 2009** -4- vehicle. 4. The fourth respondent had filed a written statement contending that the accident occurred due to the negligence of the appellant. The fourth respondent also disputed the age, income and occupation of the appellant. 5. The fifth respondent had filed a written statement admitting that the offending motorcycle had a valid insurance coverage. The fifth respondent also denied negligence on the part of the first respondent and disputed the age, income and occupation of the appellant. 6. The appellant produced and marked Exts.A1 to A10 in evidence. The fifth respondent produced and marked Exts.B1 and B2 in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, **MACA NO.2433 OF 2009** -5- by permitting the appellant to recover from the fifth respondent an amount of Rs.22,300/- with interest and cost. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Sri. Sheji P. Abraham, the learned counsel appearing for the appellant/petitioner, Sri. Sandeep Ankarath, the learned counsel appearing for respondents 1 and 4 and Smt. K.S. Santhi, the learned counsel appearing for the fifth respondent insurer. 10. The point that emanates for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## Negligence and Liability 11. Ext.A5 final report filed by Chalissery Police in Crime No.229 of 2002 proves that the accident occurred **MACA NO.2433 OF 2009** -6- due to the negligence of the first respondent. Indisputably, the fourth respondent was the owner and the fifth respondent was the insurer of the offending motorcycle. The respondents have not let in any evidence to discredit Ext.A5 final report. The fifth respondent has also not proved that the fourth respondent had violated the insurance policy conditions. Therefore, the fifth respondent is to indemnify the liability of the fourth respondent arising out of the accident. ## **Income** 12. The appellant had claimed that he was a mechanic by profession and earning a monthly income of Rs.3,500/-. For want of materials, the Tribunal fixed the monthly income of the appellant on notional basis at Rs.2,000/-. 13. In **Ramachandrappa v. Manager, Royal** **MACA NO.2433 OF 2009** -7- **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.4,500/- per month. 14. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2002 . I re-fix the notional monthly income of the appellant at Rs.3,500/- as claimed in the claim petition. ## **Loss of earnings** 15. It is proved and established as per Ext.A6 discharge summary and Ext.A10 treatment certificate that the appellant had suffered a fracture of the mandible and had lost 3 teeth in the accident. Being a mechanic by profession and the injuries suffered to the mandible has impaired the appellant from carrying on his avocation. Therefore, I hold that the appellant was **MACA NO.2433 OF 2009** -8- ## indisposed for a period of three months. 16. In view of the re-fixation of the notional monthly income of the appellant at Rs.3,500/-, I award him an amount of Rs.10,500/- towards 'loss of earnings' instead of Rs.4,000/- awarded by the Tribunal. ## **Bystander expenses** 17. The Tribunal has awarded an amount of Rs.400/- towards 'bystander expenses'. The said amount is too meager. Considering the fact that the appellant was treated as an inpatient for a period of 5 days and the accident occurred in the year 2002, I award him an amount of Rs.300/- per day for a period of 5 days, towards 'bystander expenses', which works out to Rs.1,500/-. ## **Pain and sufferings and Loss of amenities** 18. The appellant had claimed an amount of Rs.50,000/- under the head 'pain and sufferings' and **MACA NO.2433 OF 2009** -9- Rs.25,000/- towards 'loss of amenities'. The Tribunal has awarded an amount of Rs.6,000/- and Rs.5,000/respectively, under the two heads. 19. Taking into account the nature of injuries suffered by the appellant, that he was only 19 years at the time of accident and that he was indisposed for a period of three months, I award him a further amount of Rs.14,000/- under the head 'pain and sufferings' and Rs.15,000/- under the head 'loss of amenities'. 20. With respect to the other heads of compensation, I find the same to be reasonable and just. 21. On a re-appreciation of the pleadings and materials on record and the law referred to in the aforecited decision, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given under the table below for easy reference. **MACA NO.2433 OF 2009** -10- |**Sl.**<br>**No**|**Head of claim**|**Amount awarded**<br>**by**<br>**the**<br>**Tribunal(Rs.)**|**Amount**<br>**modified**<br>**and**<br>**recalculated by**<br>**this Court (Rs.)**| |---|---|---|---| |1.|Loss of earnings|4,000/-|10,500/-| |2.|Expenses for transportation|500/-|500/-| |3|Damage to clothing|500/-|500/-| |4|Expenses for treatment|4,900/-|-| |5|Expenses for Bystander|400/-|1,500/-| |6|Expenses for extra<br>nourishment|1,000/-|1,000/-| |7|Pain and sufferings|6,000/-|20,000/-| |8|Loss of amenities|5,000/-|20,000/-| ||**Total**|**22,300/-**|**54,000/-**| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.31,700/- with interest at the rate of 7% per annum from the date of petition till the date of deposit, after deducting interest for the period of 66 days i,e., the period in filing the appeal and as ordered by this Court on 26.10.2021 in C.M. Application No.1 of 2009, and a **MACA NO.2433 OF 2009** -11- cost of Rs.5,000/-. The fifth respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. Sd/- **C.S. DIAS JUDGE** bpr