Rahmath S/o Late Alavi v Subair, Majeed M.M. and United India Insurance Company Ltd.

**MACA NO. 1623 OF 2009** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 15[TH] DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943 MACA NO. 1623 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 2412/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/PETITIONER:** RAHMATH, S/O. (LATE) ALAVI, AGED 33 YEARS, RESIDING AT VILAKKATTUKAVIL HOUSE,, P.O. KAITHAPOYIL, (VIA) THAMARASSERY, KOZHIKODE. BY ADV SRI.V.S.CHANDRASEKHARAN ## **RESPONDENTS/RESPONDENTS:** 1 SUBAIR, S/O.IMBICHAMMED HAJI, AGE NOT KNOWN,RESIDING AT KULATHIL HOUSE, P.O. PUTHUPADI, KOZHIKODE. 2 MAJEED M.M. S/O. ABOOBACKER KUTTY AGE NOT KNOWN, RESIDING AT MAVILATH,, MANNIL HOUSE,P.O. KAITHAPOYIL, THAMARASSERY, KOZHIKODE. 3 UNITED INDIA INSURANCE COMPANY LTD. DIVISIONAL OFFICE, WHITE LINES BUILDING, KALLAI ROADM KOZHIKODE. BY ADV SRI.P.MURALEEDHARAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1623 OF 2009** **2** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.2412/2004 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 2.9.2004. It was his case that, on the abovesaid day, while he was travelling along with his goods in a Lorry bearing Reg.No.KL-8/L-2185 (Lorry) from Kozhikode to Thrissur, when the Lorry reached 'Chundappadam', due to the negligence of the 2[nd] respondent, the lorry capsized. The appellant had sustained serious injuries including fractures of his pelvis and right tibia. He was treated as an inpatient at **MACA NO. 1623 OF 2009** **3** the West Fort Hospital, Thrissur and at the Medical College Hospital, Kozhikode for the period from 2.9.2004 to 23.9.2004. The appellant was a Loading and Unloading worker and was earning a monthly income of Rs.5,000/-. The lorry was owned by the 1[st] respondent and insured with the 3[rd] respondent. Hence, the appellant claimed a compensation of Rs.5,14,000/- from the respondents, which was limited to Rs.3,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4. The 3[rd] respondent had filed a written statement refuting the allegations in the claim petition. It was the case of the 3[rd] respondent that the appellant was a gratuitous passenger, and therefore, the 3[rd] respondent was not liable to pay any amount as compensation. However, the 3[rd ] respondent admitted that the lorry had a valid insurance coverage. **MACA NO. 1623 OF 2009** **4** 5. The appellant had produced and marked Exts.A1 to A3 in evidence. The case records were marked as Ext.C1. The 3[rd] respondent produced the insurance policy, which was marked as Ext.B1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to recover an amount of Rs. 28,000/- with interest from the 2[nd] respondent. 7. Aggrieved by the direction of the Tribunal to the 2[nd] respondent to pay the compensation amount and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.V.S.Chandrasekaran, the learned counsel appearing for the appellant/petitioner and Sri.P.Muraleedharan, the learned counsel appearing for the 3rd respondent- insurer. 9. The questions that arise for consideration in the appeal are: **MACA NO. 1623 OF 2009** **5** (i) whether the direction to the 2[nd] respondent to pay the compensation amount is sustainable in law? (ii) whether quantum of compensation awarded by the Tribunal is reasonable and just? ## **Question No.(i)** 10. Even though the 3[rd] respondent had raised the contentions that the vehicle was covered by an 'Act Policy' and that the appellant was a gratuitous passenger, the Tribunal in paragraph 7 of the impugned award has clearly found that the 3[rd] respondent had collected additional premium so as to cover an employee and his representatives. Therefore, the Tribunal found that the appellant was not a gratuitous passenger. Nonetheless, the Tribunal, presumably, on a mistake, has directed the 2[nd] respondent – the driver of the lorry to pay the compensation amount. The direction is clearly wrong and unsustainable in law because after finding that the lorry was covered by a valid insurance policy, that the 1[st] **MACA NO. 1623 OF 2009** **6** respondent had not violated the insurance policy conditions and that the appellant was not a gratuitous passenger, the Tribunal ought to have directed the 3[rd] respondent – insurer - to indemnify the liability of the 1[st] respondent arising out of the accident. Consequentially, the Tribunal ought to have permitted the appellant to recover the compensation amount from the 3[rd] respondent. Hence, I answer Question No.(i) in favour of the appellant by permitting the appellant and permit the appellant to recover the compensation amount awarded by the Tribunal from the 3[rd] respondent. ## **Question No.(ii)** ## Income 11. The appellant had claimed that he was a loading and unloading worker and was earning a monthly income of Rs.5,000/-. However, the appellant did not produce any material to substantiate his assertion. Accordingly, the Tribunal fixed the notional monthly income of the appellant **MACA NO. 1623 OF 2009** **7** at Rs.4,500/-. 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 afroecited decision and considering the fact that the accident occurred in the year 2004, I confirm the finding of the Tribunal fixing the notional monthly income of the appellant at Rs.4,500/-. ## **Loss of earnings** 14. It is proved that the appellant had sustained fractures to his pubic ramus and Type I open fracture to the right tibia. He was treated as an inpatient for a period of 21 days. Being a headload worker, necessarily, the appellant is held to be indisposed for a period of three months. **MACA NO. 1623 OF 2009** **8** 15. In view of the fixation of the notional monthly income of the appellant at Rs.4,500/-, I hold that the appellant is entitled for a compensation of Rs.13,500/towards 'loss of earnings', i.e.,an enhancement of Rs.9,000/-. ## **Bystander expenses** 16. The appellant was treated as an inpatient for a period of 21 days. The Tribunal has awarded an amount of Rs.3,000/- towards 'bystander expenses', which according to me is too meager. 17. Considering the fact that the accident occurred in the year 2004, I award the appellant bystander expenses at Rs.250/- per day for a period of 21 days which works out to Rs.5,250/-, i.e. an enhancement by a further amount of Rs.2,250/-. **MACA NO. 1623 OF 2009** **9** ## **Loss of amenities and pain and sufferings.** 18 **.** The appellant had claimed Rs.25,000/- towards 'loss of amenities and Rs.25,000/- towards 'pain and sufferings'. The Tribunal has awarded an amount of Rs.4,000/- under the head ’ loss of amenities’ and an amount of Rs.10,000/- under the head 'pain and sufferings'. 19. On a consideration of the fact that the appellant was treated as an inpatient for a period of 21 days, that he was indisposed for a period of three months, and that he had sustained fractures to his pubic ramus and tibia, I enhance the compensation under the head ‘loss of amenities’ by a further amount of Rs.6,000/- and the compensation under the head 'pain and sufferings' by a further amount of Rs.10,000/-. 20. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. **MACA NO. 1623 OF 2009** **10** In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.27,250/- (i.e an amount of Rs.9,000/- towards loss of earnings, Rs.2,250/- towards 'bystander expenses', Rs.6,000/- towards 'loss of amenities' and Rs.10,000/towards 'pain and sufferings') with interest at the rate of 7% per annum from the date of petition till the date of deposit, after deducting the interest for a period of 74 days and as ordered by this Court on 16.9.2021 in C.M.Appli. No.1 of 2009, and a cost of Rs.5,000/-. The 3[rd] respondent is ordered to deposit the compensation amount of Rs.28,000/- awarded by the Tribunal with interest and costs as ordered by the Tribunal and also the enhanced compensation of Rs.27,250/- with interest and cost awarded in the appeal, totalling to an amount of Rs.55,250/- with interest and costs within a period of two months from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount **MACA NO. 1623 OF 2009** **11** awarded by the Tribunal and the enhanced amount awarded by this Court being deposited, the Tribunal shall disburse the compensation amount to the appellant/petitioner in accordance with law. Sd/- ma/15.11.2021 **C.S.DIAS, JUDGE**