Premarajan v. Surendran and Oriental Insurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 12[TH] DAY OF NOVEMBER 2021 / 21ST KARTHIKA, 1943 ``` ## `MACA NO. 794 OF 2011` ``` AGAINST THE AWARD DATED 17.06.2010 IN OP(MV)NO.276/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE. ``` ## `APPELLANT/PETITIONER:` ``` PREMARAJAN, AGED 42 YEARS, KANCHIRANCHERA HOUSE, KANNANKARA POST, CHELANNUR, KOZHIKODE. ``` ``` BY ADVS.SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1V.SURENDRAN, S/O. BHASKARAN, KORNOZHI HOUSE, MULLANKUNNU, MARUTHOMKARA POST, KUTTIYADI, KOZHIKODE DISTRICT. ``` - `2 T.K.ANEESH, PANIKAR VEETTIL, PALLISSARY POST, THRISSUR, PIN-680 027.` ``` 3THE MANAGER ORIENTAL INSURANCE CO. LTD., JOTHI SUPER BAZAR, THODUPUZHA, IDUKKI DISTRICT, PIN-685 584. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.794/2011 -:2:- Dated this the 12[th] day of November,2021 ## **J U D G M E N T** The appellant was the petitioner in O.P(MV) No.276/2009 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 13.01.2008. It was his case that, on the above said day, while he was driving a Quails taxi jeep bearing registration No.KL-11/P-105 (jeep) from Calicut to Guruvayur and when the vehicle reached the place named Athirumada in Malappuram District, a bus bearing registration M.A.C.A.No.794/2011 -:3:- No.KL-8-AJ-3141(bus), driven by the first respondent in a negligent manner, hit the jeep. The appellant and the six passengers in the jeep sustained injuries. The appellant was treated at the Almas Hospital, Kottakkal and the Baby Memorial Hospital, Kozhikode. He had to undergo a maxillofacial surgery. The appellant was a jeep driver by profession and was earning a monthly income of Rs.6,000/-. The appellant has become permanently disabled due to the accident. The bus was owned by the second respondent and insured with the third respondent. Hence, the appellant claimed a . compensation of Rs.2,00,000/- from the respondents 3. The respondent Nos.1 and 2 did not contest the proceedings and were set ex parte. 4. The third respondent had filed a written statement, refuting the allegations in the claim petition. It was contended that the accident occurred due to the negligence of the appellant. The third M.A.C.A.No.794/2011 -:4:- respondent also disputed the age, income and occupation of the appellant. 5. The appellant examined himself and a witness as PWs1 and 2, and marked Exts.A1 to A5 in evidence. Ext.X1 was marked as a court exhibit. The respondents did not let it any evidence. 6. The Tribunal, after analysising the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to realise from the third respondent an amount of Rs.13,250/- with interest at the rate of 7% per annum from the date of petition till the date of realisation and a cost of Rs.350/- 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri. V.T. Madhavanunni, the learned counsel appearing for the appellant/petitioner and M.A.C.A.No.794/2011 -:5:- Smt. Latha Susan Cherian, the learned counsel appearing for the third respondent -insurer. 9. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability:** 10. Ext.A4 chargesheet filed by the Police establishes that the accident happened due to negligence of the first respondent – the driver of the bus. Admittedly, the second respondent was the owner and the third respondent was the insurer of the bus. The third respondent has not proved that the second respondent has violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Income:** 11. The appellant had claimed that he was a M.A.C.A.No.794/2011 -:6:- driver by profession and earning a monthly income of Rs.6,000/-. However, the Tribunal, for the want of materials, fixed the notional income of the appellant at Rs.3,000/-. 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 2004, at Rs.4,500/- per month. 13. Following the yardstick in the afore-cited decision and keeping in mind the fact that the accident occurred in the year 2008, I fix the notional monthly income of the appellant at Rs.6,000/-. ## **Loss of earnings:** 14. It is proved by Exts.A2 and A3 wound certificates that the appellant was treated as an inpatient for a period of three days. It is also seen from the wound certificates that the appellant sustained M.A.C.A.No.794/2011 -:7:- to his face and he had to a injuries undergo maxillofacial surgery. As the appellant was a driver by profession and he had to undergo a surgery, I hold that the appellant was indisposed for a period of two months. 15. In view of the re-fixation of the notional monthly income of the appellant at Rs.6,000/-, I award the appellant an amount of Rs.12,000/- towards ‘loss of earnings’ i.e., an enhancement by Rs.10,500/-. ## **Medical expenses:** 16. Although the Tribunal has on the basis of Ext.A5 series of medical reports arrived at a conclusion that the appellant is entitled for reimbursement of Rs.7,000/- towards ‘medical expenses’, in the table in the impugned award, the Tribunal has only awarded an amount of Rs.5,000/-. Therefore, I award a further amount of Rs.2,000/under the said head. M.A.C.A.No.794/2011 -:8:- ## **Extra nourishment and bystander expenses:** 17. The appellant had claimed an amount of Rs.3,000/- towards ‘extra nourishment’. The Tribunal only awarded an amount of Rs.200/- under the head ‘extra nourishment’ and Rs.300/- under the head ‘bystander expenses’. 18. On a consideration of the fact that the appellant was treated as an inpatient for a period of three days; that he had undergone a surgey and that he was indisposed for a period of two months, I award the appellant a consolidated amount of Rs.2,500/under the heads ‘extra nourishment’ and ‘bystander expenses’. ## **Pain and sufferings:** 19. The appellant had claimed an amount of Rs.25,000/- as compensation for ‘pain and sufferings’. It is proved by Ext.A2 accident-cum-wound certificate that the appellant was admitted as an inpatient on M.A.C.A.No.794/2011 -:9:- 13.01.2008 and was discharged on 16.01.2008. He underwent a maxillofacial surgery in order to correct the disfigurement sustained to his face. He was indisposed for a period of two months. 20. Taking into consideration the above said aspects, I award the appellant a further amount of Rs.10,000/- under the said head. 21. 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 in part, by enhancing the compensation by a further amount of **Rs.25,000/-** (i.e., Rs.10,500 towards ‘loss of earnings’, Rs.2,000/- towards ‘medical expenses’, Rs.2,500/towards ‘extra nourishment’ and ‘bystander expenses’ and Rs.10,000/- towards ‘pain and sufferings’) with interest on the said amount at the rate of 7% per annum from the date of petition till the date of deposit M.A.C.A.No.794/2011 -:10:- and a cost of Rs.3,000/-. The third respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant, in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/12.11.2021 //True copy/ P.A.To Judge