Ouseph K.K. v. Shiju and The National Insurance Co. Ltd.

1 MACA No.2118 of 2009 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 26[TH] DAY OF OCTOBER 2021 / 4TH KARTHIKA, 1943 MACA NO. 2118 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1542/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA, THRISSUR APPELLANT/S:** OUSEPH K.K., S/O.KOCHAPPU KAREDAN HOUSE, THAZHEKAD DESOM & VILLAGE,, KALLETTUMKARA PO, MUKUNDAPURAM TALUK. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENT/S:** 1 SHIJU, S/O.VARGHESE 3/333, KAREDAN HOUSE, ALLOR, 2 THE NATIONAL INSURANCE CO.LTD MALIYAKAL BUILDINGS,MAIN ROAD, IRINJALAKUDA. BY ADVS. SMT.DEEPA GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No.2118 of 2009 ## **C.S.DIAS, J.** ## **====================== MACA No.2118 of 2009** **====================== Dated this the 26[th] day of October, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) 1542/2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda. The respondents in the appeal were the respondents in the claim petition. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 14.7.2004. It was his case that on the above said date, while he was travelling pillion on a motor cycle bearing registration No.KL-8/P 1633, driven by the first respondent, due to the negligence of the first respondent, the appellant's right foot got caught in between the stoker of the motor cycle. He sustained a heel pad avulsion and other injuries. He was treated as 3 MACA No.2118 of 2009 an inpatient at the St.James Hospital, Chalakkudy. The accident occurred due to the negligence of the first respondent, who was also the owner of the motor cycle. The second respondent was the insurer of the motor cycle. The appellant was a manual labourer and was earning a monthly income of Rs.4,500/-. Hence the appellant claimed a total compensation of Rs.2,10,000/from the respondents, which was limited to Rs.1,50,000/-. 3. The respondents 1 and 2 had filed separate written statements. 4. The first respondent contended that the motor cycle had a valid insurance policy with the second respondent. Therefore, it was the second respondent who was to indemnify the liability of the first respondent. 5. The second respondent contended that even though the motor cycle had a valid insurance coverage, the second respondent was not liable to cover the liability of the appellant, who was a pillion rider. 4 MACA No.2118 of 2009 6. The appellant produced and marked Exts A1 to A6 in evidence. The second respondent marked Ext B1 insurance policy schedule in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by permitting the appellant to realise from the second respondent an amount of Rs.36,900/- with interest at the rate of 7% per annum from the date of petition till the date of realisation and proportionate costs. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in the appeal. 9. Heard; Sri.P.V Baby, the learned counsel appearing for the appellant/petitioner and Smt.Deepa George, the learned counsel appearing for the second respondent-insurer. 10. The question that arises for consideration in the 5 MACA No.2118 of 2009 appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 11. Ext A2 charge-sheet filed by the Irinjalakkuda Police in crime No.439/2004 proves that the accident occurred due to the negligence of the first respondent. Admittedly, the second respondent was the insurer of the motor cycle. The second respondent had not proved that the first respondent had violated the policy conditions. Therefore, the second respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Notional income** 12. The appellant had claimed that he was a manual labourer by profession and earning a monthly income of Rs.4,500/-. However, the Tribunal fixed the notional monthly income of the appellant at Rs.2,000/-. 13. The Hon'ble Supreme Court in 6 MACA No.2118 of 2009 **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. 14. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2004, I fix the monthly notional income of the appellant at Rs.4,500/-, as claimed in the claim petition. ## **Loss of earnings** 15. It is proved as per Ext A3 wound certificate, Ext A4 discharge summary and Ext A5 disability certificate that the appellant had sustained a fracture of supra molleolar of the right ankle. He was treated as an inpatient for a period of 24 days. Being a manual labourer, certainly, he would have been indisposed for a period of three months. In such circumstances, I hold that the appellant is entitled for loss of earnings for a period of three months. 7 ## MACA No.2118 of 2009 16. In view of refixing the notional income of the appellant at Rs.4,500/-, I hold that the appellant is entitled for compensation under the head 'loss of earnings' at Rs.13,500/-, instead of Rs.5,000/- awarded by the Tribunal, i.e., an enhancement by **Rs.8,500/-** . ## **Bystander expenses** 17. It is proved that the appellant was treated as inpatient for a period of 24 days. The Tribunal awarded bystander expenses at Rs.2,400/-, i.e., Rs.100/- per day, which according to me is on the lower side. 18. Considering the fact that the accident occurred in the year 2004, I enhance the compensation under the head 'bystander expenses' at Rs.200/- per day for 24 days, i.e., a further enhancement of **Rs.2,400/** -. ## **Compensation for pain and sufferings and loss of amenities** 19. It is substantiated by Ext A3 wound certificate, 8 MACA No.2118 of 2009 Ext A4 discharge summary and Ext A5 disability certificate that the appellant had sustained a fracture of supra molleolar of the right ankle, had sufferred a Tendo Achilles Avulsion and underwent Tendon repair treatment. He also has stiffness of the ankle and partial ankylosis. He is stated to be having 5% permanent disability due to the partial ankylosis. Admittedly, he was treated as an inpatient for a period of 24 days and he was indisposed for a period of three months. In the said circumstances, I hold that the appellant is entitled for enhancement of compensation by **Rs.10,000/-** under the heads ' pain and sufferings' and 'loss of amenities'. ## **Other heads of compensation** 20. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of 9 MACA No.2118 of 2009 **Rs.20,900/-** (Rupees Twenty Thousand Nine Hundred only) (i.e., Rs.8,500/- towards loss of earnings, Rs.2,400/towards bystander expenses and Rs.10,000/- towards compensation under the heads 'loss of amenities' and 'pain and sufferings'). The second respondent-insurer is ordered to deposit the enhanced compensation of Rs.20,900/- with interest at the rate of 7% per annum from the date of claim petition till the date of deposit, and a cost of Rs.4,000/- before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the deposit being made, the Tribunal shall disburse the enhanced compensation to the appellant, in accordance with law. sd/- sks/26.10.2021 **C.S.DIAS, JUDGE**