P. Dinesh Kumar v. Bhoopesh Kumar and Anoop B and National Insurance Company Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 17[TH] DAY OF DECEMBER 2021 / 26TH AGRAHAYANA, 1943 ``` ``` MACA NO. 400 OF 2011 ``` ``` AGAINST THE AWARD DATED 16.12.2009 IN OP(MV)NO.1313/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE ``` ``` APPELLANT/PETITIONER: ``` ``` P.DINESH KUMAR AGED 47 YEARS, S/O. SREEDHARAN.P., PARAKKAL HOUSE, POST PUTHIYARA, NEAR DISTRICT JAIL, KOZHIKODE-673004. ``` ``` BY ADVS.SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1BHOOPESH KUMAR, S/O. NARAYANA KURUP, 28/2350, PURAKKADANKANDI PARAMBA, KOZHIKODE-673001. ``` ``` 2ANOOP.B., S/O. BHOOPESH KUMAR, ANUPRIYA THONDAYAD, NELLIKODE POST, KOZHIKODE-673016. ``` ``` 3NATIONAL INSURANCE COMPANY.LTD. NOOR COMPLEX, ARAYADATHPALAM, MAVOOR ROAD,KOZHIKODE-673001. ``` ``` BY ADVS.SMT.DEEPA GEORGE SRI.M.A.GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.400/2011 -:2:- Dated this the 17[th] day of December, 2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV)No.1313/2007 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. 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 30.09.2006. It was his case that, on the above day, while he was riding his scooter bearing registration No.KL-11/K-4074 along the Kozhikode side to the Medical College side, a motorcycle bearing registration No.KL-11/V-8183 (motorcycle), driven by the second respondent in a rash and negligent manner, hit the scooter of the M.A.C.A.No.400/2011 -:3:- appellant. The appellant sustained serious injuries, including a fracture of the Lateral condyle left Tibia. He was treated as an inpatient at the Medical College Hospital, Kozhikode for a period of 23 days. The appellant was the Manager in Navodaya Films, Calicut, and was earning a monthly income of Rs.6,000/-. The motorcycle was owned by the first respondent and insured with the third respondent. Hence, the appellant claimed a compensation of Rs.1,85,000/- from the respondents, which claim was restricted to Rs.1,50,000/-. 3. The respondent Nos.1 and 2 did not contest the proceedings. 4. The third respondent had filed a written statement, admitting that the motorcycle had a valid insurance coverage. However, it disputed the fact that the motorcycle was involved in the accident. 5. The appellant had produced and marked M.A.C.A.No.400/2011 -:4:- Exts.A1 to A7 series in evidence. The third respondent had produced the A.M.V.I. Report as Ext.B1 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.31,045/- with interest at the rate of 7% per annum from the date of petition till the date of realisation and a cost of Rs.750/-. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Smt. M. Manju, the learned counsel appearing for the appellant/petitioner and Smt. Deepa George, the learned counsel appearing for the third respondent-insurer. 9. The sole question that arises for M.A.C.A.No.400/2011 -:5:- consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability:** 10. Ext.A1 First Information Report (FIR) and First Information Statement(FIS) proves that the accident occurred due to negligence of the second respondent. The respondents have not let in any evidence to controvert the pleadings in the claim petition. Admittedly, the first respondent was the owner and the third respondent was the insurer of the motorcycle. The third has not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income of the appellant:** 11. The appellant had claimed that he was the M.A.C.A.No.400/2011 -:6:- Manager in Navodaya Films and earning a monthly income of Rs.6,000/-. Even though he produced Ext.A4 salary certificate, the Tribunal fixed the notional monthly income of the appellant at Rs.3,000/-. 12. As the appellant has not proved Ext.A4 salary certificate through its author, I am not inclined to accept Ext.A4 in its entirety. Nevertheless, as the accident occurred in the year 2006, I fix the notional monthly income of the appellant at Rs.5,500/-, following the principles in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236] **.** ## **Loss of earnings:** 13. Even though the appellant had claimed that he was indisposed for a period of six months, the Tribunal awarded only an amount of Rs.3,000/-, which according to me, is too low and improper. Since the appellant had sustained a fracture of the Lateral M.A.C.A.No.400/2011 -:7:- condyle of left Tibia, and he was treated as an inpatient for a period of 23 days, I hold that he was indisposed for a period of six months, 14. In view of the re-fixation of the notional income of the appellant at Rs.5,500/- per month, I award him Rs.33,000 towards compensation for 'loss of earnings' i.e., an enhancement by Rs.30,000/-. ## **Bystander expenses:** 15. It is proved as per Ext.A3 treatment card that the appellant was treated as an inpatient for a period of 23 days. The Tribunal has awarded an amount of Rs.1,000/- towards 'bystander expenses, which is meagre. Taking into account the fact that the accident was occurred in the year 2006, I award the appellant an amount of Rs.300/- per day for a period of 23 days towards ‘bystander expenses’ which amounts to Rs.6,900/- i.e., an enhancement by Rs.5,900/-. M.A.C.A.No.400/2011 -:8:- ## **Loss of amenities** 16. The appellant had claimed an amount of Rs.25,000/- towards 'loss of amenities'. The Tribunal awarded only an amount of Rs.2,000/-, which is also on the lower side. 23. Taking into account the fact that the appellant was treated as an inpatient for a period of 23 days, that he was indisposed for a period of six months, and that he had sustained a fracture, I hold that the appellant is entitled for a further amount of Rs.13,000/- under the head ‘loss of amenities’. 24. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed, by enhancing the compensation by a further amount of **Rs.48,900/-** (Rs.30,000/- towards ‘loss of earnings’, Rs.5,900/towards ‘bystander expenses’ and Rs.13,000/- towards M.A.C.A.No.400/2011 -:9:- ‘loss of amenities’) with interest on the enhanced compensation at the rate of 7% per annum from the date of petition till the date of deposit, after deducting interest for a period of 105 days i.e., the period of delay in preferring this appeal and as ordered by this Court on 29.09.2021 in C.M.Appln.No.1/2011, and a cost of Rs.5,000/-. The third respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of 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** DST/17.12.2021 //True copy/ P.A.To Judge