Praneesh v. T.M. Vijayan, P. Usman and The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 4[TH] DAY OF OCTOBER 2021 / 12TH ASWINA, 1943** **MACA NO. 1309 OF 2011** **AGAINST THE AWARD DATED 27.10.2010 IN OP(MV)NO.1498/2006 OF II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE,** ## **APPELLANT/PETITIONER:** **PRANEESH, AGED 29 YEARS, SON OF PRAKASHAN, RESIDING AT THAIKOTTAMPARAMBIL, P.O.WEST HILL, KOYA ROAD BEACH, KOZHIKODE DISTRICT.** **BY ADV ANOOP PULLERY** ## **RESPONDENTS/RESPONDENTS:** **1 T.M. VIJAYAN, THANNERI HOUSE, AYODHYA NAGAR, MOORIYADUE, KOOTHUPARAMBA-670643.** **2 P.USMAN, S/O.ABU HAJI D.NO.227, SUKHAN ROAD, JAGAN MOHAN PALACE, N.H.ROAD, MYSORE-560076.** **3 THE ORIENTAL INSURANCE CO. LTD., E.M.S. BUILDING, P.B.NO.437, SOUTH BAZAR, KANNUR-670002.** **BY ADV M.JACOB MURICKAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1309/2011 -:2:- _Dated this the 4[th] day of October, 2021_ ## **J U D G M E N T** The appellant was the petitioner in O.P.(MV) No.1498/2006 on the file of the II[nd] Additional 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 26.10.2005. It was his case that, while he was driving a goods auto rickshaw bearing registration No.KL-11/U-330 from Tirur to Kozhikode, when he reached a place named a Thirurangadi, lorry bearing registration No.KL-09/A-7299(lorry), hit the auto rickshaw. The lorry was driven by the first respondent in a negligent manner. The appellant sustained serious injuries and M.A.C.A.No.1309/2011 -:3:- was treated at the M.K. Haji Orphanage Hospital as an inpatient for a period of 24 days. The appellant was a driver by profession and earning a monthly income of Rs.5,000/- per month. The first respondent was the owner and the third respondent was the insurer of the lorry. Hence, the appellant claimed a compensation of Rs.2,32,500/- from the respondents, which was limited to Rs.2,00,000/- 3. The respondent Nos.1 and 2 did not contest the proceedings and were set _ex parte_ . 4. The third respondent filed a written statement, contending that the accident occurred due to the negligence of the appellant. It was also contended that the compensation claimed by the appellant was highly excessive. 5. The appellant produced and marked Exts.A1 to A6 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings M.A.C.A.No.1309/2011 -:4:- and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.35,957/- with interest at the rate of 7% per annum from the date of petition till the date of realisation and a cost of Rs.800/- . 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri. Anoop Pullery, the learned counsel appearing for the appellant/petitioner and Sri. M. Jacob Murickan, the learned counsel appearing for the third respondent/insurer. 9. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Liability and negligence:** 10. Ext.A1 First Information Statement(FIS) and M.A.C.A.No.1309/2011 -:5:- Ext.A3 Scene Mahazar clearly substantiate the fact that the accident occurred due to negligence of the first respondent. Admittedly, the second respondent was the owner and the third respondent was the insurer of the lorry. The third respondent has admitted that the lorry had a valid insurance coverage and had not contended that the second respondent has violated the policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent. ## **Notional income:** 11. The appellant had claimed that he was a goods auto driver by profession and earning a monthly income of Rs.5,000/-. Nonetheless, the Tribunal fixed the notional income of the appellant at Rs.3,000/- per month. 12. In _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year M.A.C.A.No.1309/2011 -:6:- ## 2004, at Rs.4,500/- per month. 13. Following the yardstick in the afore-cited decision and taking into account the fact that the accident occurred in the year 2005, I re-fix the notional income of the appellant at Rs.5,000/- per month. ## **Loss of earnings:** 14. It is proved through Ext. A2 wound certificate and Ext.A5 medical bills that the appellant had sustained a fracture of the shaft of the tibia middle 3[rd] of the right leg and fracture tibia spine. He was treated as an inpatient for a period of 24 days from the date of accident. He had expended an amount of Rs.15,957/- towards his 'medical expenses'. All these aspects prove that the appellant was indisposed. 15. Taking into account the fact that the appellant was a goods auto driver by profession, I hold that he was indisposed for a period of six months. In such circumstances, I re-fix the quantum of M.A.C.A.No.1309/2011 -:7:- compensation for loss of earnings at Rs.30,000/instead of Rs.6,000/- awarded by the Tribunal. ## **Bystander expenses:** 16. It is averred in the claim petition that the appellant was treated as an inpatient from the date of accident for a period of 24 days. Taking into account the said uncontroverted assertion, I hold that the appellant is entitled for 'bystander expenses' at Rs.7,200/-. ## **Pain and sufferings:** 17. Even though the appellant had claimed an amount of Rs.40,000/- as compensation for 'pain and sufferings', the Tribunal awarded only an amount of Rs.10,000/- 18. Taking into consideration the fact that the appellant sustained two fractures, that he was treated as an inpatient for a period of 24 days and he was indisposed for a period of six months, I award a further amount of Rs.10,000/- to the appellant, as M.A.C.A.No.1309/2011 -:8:- compensation towards 'pain and sufferings'. 19. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 20. On a overall re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decision, I hold that the appellant/petitioner is entitled for enhancement of compensation by a further amount of Rs.41,200/- i.e., Rs.24,000/- towards 'loss of earnings', Rs.7,200/towards 'bystander expenses' and Rs.10,000/- towards 'pain and sufferings'. In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.41,200/-** with interest at the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.3,000/-. The third respondent is ordered to deposit the enhanced compensation with interest and costs before the Tribunal within a period of sixty days from M.A.C.A.No.1309/2011 -:9:- the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance with law All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST/04.10.2021 //True copy/ P.A.To Judge