P.A. Azeez v. K. Ummer Shereef and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 16[TH] DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943** **MACA NO. 2073 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 345/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA, THRISSUR** ## **APPELLANT/S:** P.A.AZEEZ, S/O.ABDUL KHADER, NEEHARATHIL HOUSE, NETHAJI, ALAPPUZHA 688542. BY ADVS. SRI.V.BINOY RAM SMT.SAJITHA P.SOMAN ## **RESPONDENT/S:** 1 K.UMMER SHEREEF, NAJATH HOUSE, MANAKOTTUTHAZHAM, P.O.GURUVAYOORAPPAN COLLEGE, CALICUT, PIN-673014. 2 RAVI S/O.CHOOLAN NEELITHODY HOUSE AYIKKARAPADY DESOM P.O MALAPPURAM-673637 3 THE UNITED INDIA INSURANCE CO.LTD. BO.1, CHEROOTY ROAD, CALICUT - 673001. 4 SAJEEV KUMAR THUNDUVILA HOUE HOUSE NO.VI/415, KILIKOLLORE,, KOLLAM, PIN - 691004. 5 MOHANAN SO.VISWANATHAN PADINJATTA HOUSE, THEVALLI OLAYIL, KOLLAM 691009. 6 NATIONAL INSURANCE CO.LTD. DIRECT AGENT'S BRANCH, PARAMESWARAN PILLAI BHAVAN,, HOSPITAAL ROAD, KOLLAM 691001. BY ADVS. SMT.DEEPA GEORGE SRI.M.A.GEORGE SMT.T.C.SOWMIAVATHY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2073 OF 2011 3 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.345/2002 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 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 04.07.2002. It was his case that, while he was travelling with his goods in a lorry bearing registration No.KL2/B 9039 from Kunnamkulam to Thrissur, a lorry bearing registration No.KL11/M 5319 (offending lorry) driven by the 2[nd] respondent came from the opposite side and hit the lorry in which the appellant was travelling. The appellant sustained serious injuries including a close fracture to the ulna right fracture to the clavicle left and head injury. He also had a fracture of the teeth upper medial to incisors of upper right lateral incisor tooth. He was treated as an inpatient at Amala Hospital for 14 days. The appellant was a businessman doing business in coconut MACA NO. 2073 OF 2011 4 shells and earning a monthly income of Rs.5,000/-. It is averred that that the accident occurred solely due to the negligence of the 2[nd] respondent. The offending lorry was owned by the 1[st] respondent and insured with the 3[rd] respondent. The respondents 4 to 6 were the owner, driver and insurer of the lorry, in which the appellant was the driver. The appellant claimed a compensation of Rs.3,80,000/- from the respondents but limited it to Rs.2,00,000/-. 3. The other injured in the accident had also filed OP(MV) Nos.343 and 344 of 2002 before the same Tribunal. 4. The 1[st] respondent entered appearance, but did not file any written statement. The respondents 4 and 5 did not contest the proceedings and were set ex-parte. The 3[rd] respondent filed written statement admitting that the offending lorry had a valid insurance policy. Nevertheless, it was contended that the accident did not occur due to the negligence of the 2[nd] respondent. The 3[rd] respondent also disputed the age, income and occupation of the claimants in all cases. The 6[th] respondent, insurer of the lorry, in which the appellant was traveling, contended that the accident MACA NO. 2073 OF 2011 5 occurred due to the negligence on the part of the 2[nd] respondent. Hence, the 6[th] respondent prayed for complete exoneration of liability. 5. The petitioners in the three cases produced and marked Exts.A1 to A24 in evidence. The 3[rd] respondent produced and marked Ext.B1 insurance policy in evidence. 6. The Tribunal after analyzing the pleadings and materials on record, by its common award allowed the captioned claim petition by permitting the appellant to realise an amount of Rs.75,900/- with interest and costs from the 3[rd] respondent. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard Sri.Binoy Ram, the learned counsel appearing for the appellant/petitioner, Smt. T.C.Soumiyavathy, the learned counsel appearing for the 3[rd] respondent insurer of the offending lorry and Smt.Deepa George, the learned counsel appearing for the 6[th] respondent/insurer of the lorry in which the appellant was traveling. 9. The sole question that emerges for consideration in the appeal is whether the quantum of compensation MACA NO. 2073 OF 2011 6 awarded by the Tribunal is reasonable and just. ## **Negligence and Liability** 10. It is proved by Ext.A5 final report filed by the Peramangalam Police in Crime No.173/2001 that the accident occurred solely due to the negligence of the 2[nd] respondent/driver of the offending lorry. Admittedly, the 1[st] respondent was the owner and was vicariously liable for the acts of the driver. As the 3[rd] respondent was the insurer of the offending lorry and had not alleged any violation of the policy conditions, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent. ## **Notional Income** 11. The appellant had claimed that he was a businessman by profession earning a monthly income of Rs.5,000/-. The Tribunal, for want of materials fixed the notional income of the appellant at Rs.2,000/- per month. 12. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd.** : (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. MACA NO. 2073 OF 2011 7 13. Following the bench mark fixed by the Honourable Supreme Court in the afore-cited decision and keeping in mind that the accident occurred in the year 2001, I am of the opinion that the appellant’s notional income can safely be fixed at Rs.3,000/- per month. ## **Loss of earnings** 14. The Tribunal found that the appellant was indisposed for a period of four months. Accordingly, an amount of Rs.8,000/- was awarded under the head loss of earnings. 15. In view of re-fixation of the notional income of the appellant at Rs.3,000/-, I enhance the compensation under the head loss of earnings by a further amount of Rs.4,000/i.e., a total amount of Rs.12,000/-. ## **Disability of the appellant** 16. The appellant had produced Ext.A19 disability certificate issued by a Doctor, wherein the appellant’s permanent disability was assessed at 20%. It is on record that the said certificate was marked subject to proof. Therefore, it was the bounden duty of the appellant to MACA NO. 2073 OF 2011 8 examine the Doctor who issued Ext.A19 to prove the contents of the documents, which he has not done. In the said circumstances, the Tribunal rightly held that there was no materials on record to prove the disability of the appellant. The said finding is perfectly correct and justifiable because the appellant ought to have summoned the Doctor and examined him to prove the disability which has not been done. ## **Loss of amenities** 17. The appellant had claimed an amount of Rs.40,000/towards compensation for loss of amenities. It is proved through Ext.A17 certificate issued on 17.01.2002 that the appellant developed organic mood disorder as a result of the accident and was continuing in treatment. Thereafter, as per Ext.A16 certificate dated 02.06.2002, it was found that the appellant was having a depression disorder following the road accident. It is these disorders that was assessed by the Doctor who issued Ext.A19 certificate. Hence, it is on record that after the accident, the appellant has a traumatic brain syndrome involving partial log function. He is said to be on anti convulsant drugs which has to be continued for a long MACA NO. 2073 OF 2011 9 time. In the said circumstances, I am of the opinion that a further amount of Rs.20,000/- has to be awarded under the head loss of amenities, since the appellant has to pull along with his life with the above medical problems. 18. With respect to the other heads of compensation, I find that the Tribunal has awarded, reasonable and just compensation. On a re-appreciation of the pleadings and materials on record, I hold that the appellant is entitled for enhancement of compensation by a further amount of Rs.24,000/- ie. Rs.20,000/- towards loss of amenities and Rs.4,000/- towards loss of income. In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.24,000/- with interest at the rate of 7% per annum from the date of petition till the date of realization after deducting interest for a period of 1140 days i.e., the period of delay in filing the appeal and as ordered by this Court on 13.12.2011 in C.M.Appln. No.3074/2011 and a cost of Rs.4000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation before the Tribunal within 60 days from the date of receipt of a certified copy of this judgment. The Tribunal shall MACA NO. 2073 OF 2011 10 disburse the enhanced compensation to the appellant in accordance with law. All pending interlocutory applications will stand closed. SD/- **C.S.DIAS, JUDGE** rkc