Razak v. Lakshmi Devi and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 22[ND] DAY OF NOVEMBER 2021 / 1ST AGRAHAYANA, 1943** ## **MACA NO. 844 OF 2009** ## **AGAINST THE AWARD IN OPMV 620/2005 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL VADAKARA, KOZHIKODE** ## **APPELLANT/CLAIMANT:** RAZAK, AGED 37 S/O.KUNHIPAKKI, KOTTAKAL METHAL HOUSE, NATERI P.O., KOYILANDI. BY ADVS. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA ## **RESPONDENTS/RESPONDENTS:** 1 LAKSHMI DEVI, W/O VIJAYAN SREPURAM, ERANHIKAL POST, KOZHIKODE (OWNER). 2 PRADEESH KUMAR MALAYIL HOUSE, KAKKODI P.O.,, KOZHIKODE (DRIVER). 3 NATIONAL INSURANCE CO. LTD. P.B.NO.811, NOOR COMPLEX,, MAVOOR ROAD, CALICUT(INSURER). BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No.844 of 2009 ## **Dated this the 22[nd ] day of November, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.620/2005 on the file of the Motor Accidents Claims Tribunal, Vadakara. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Sections 166 and 140 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 19.03.2005. It was his case that, on the aforesaid date, while he had hired an autorickshaw bearing registration No. KL /11 M 336 from Puthenveedue to go to Koyilandy, a bus bearing registration No. KL/11 Q 4367, driven by the 2[nd] respondent in a rash and negligent manner, hit the left 3 MACA No.844 of 2009 side of the autorickshaw. The appellant sustained serious injury, including fracture of the left femur and deformity of his left thigh. He was treated as an inpatient at the Taluk Head Quarters Hospital, Koyilandy and the Medical College Hospital, Calicut from 20.03.2005 to 07.04.2005 i.e. for a period of 18 days. The appellant was a driver of a Goods autorickshaw and earning a monthly income of Rs.5000/-. The 1[st] respondent was the owner and 3[rd] respondent was the insurer of the bus. Hence, the appellant claimed a compensation of Rs.3,11,000/- 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 exparte. 4. The 3[rd] respondent had filed a written statement refuting the allegations in the claim petition. It was contended that there was no negligence on the part of the 2[nd] respondent and that the accident occurred due to the negligence of the driver of the autorickshaw. The 4 MACA No.844 of 2009 3[rd] respondent had also disputed the age, income and occupation of the appellant. 5. The appellant was examined as PW1 and Exhibits A1 to A7 series were marked in evidence. The respondents did not let in any 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 3[rd] respondent an amount of Rs.33,749/-/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard Sri.Dilip Mohan, the learned counsel appearing for the appellant/petitioner and Sri.P.Jacob Mathew, the learned counsel appearing for the 3[rd] respondent/insurer. 9. The question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 5 MACA No.844 of 2009 ## **Negligence and liability** 10. Exhibit A5 charge sheet of the Koyilandy police in Crime No.192/2005 proves that the accident occurred due to the negligence of the 2[nd] respondent. Admittedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the bus. The respondents have not let in any evidence to the contrary to discredit the charge-sheet. Similarly, the 3rd respondent has not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 11. The appellant had claimed that he was a driver by profession and earning a monthly income of Rs.5000/-. The Tribunal, for the want of material, fixed the notional income of the appellant at Rs.2000/- per month. 6 MACA No.844 of 2009 ## 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional monthly income of a coolie worker in the year 2004 at Rs. 4500/- . 13. Following the yardsticks in the afore-cited decision and considering the fact that the accident occurred in the year 2005 and that the appellant had claimed that he was earning a monthly income of Rs.5000/-, I fix the monthly notional income of the appellant at Rs.5000/-. ## **Loss of earnings** 14. It is proved and found by the Tribunal that the appellant was indisposed for a period of four months, which I confirm. 15. In view of the re-fixation of the notional monthly income of the appellant at Rs.5000/-, I hold that the appellant is entitled to ‘loss of earnings’ at Rs.20,000/- 7 MACA No.844 of 2009 i.e. an enhancement by Rs.12,000/- under the head ‘loss of earnings’. 16. The appellant had claimed compensation of Rs.25,000/- towards ‘pain and sufferings’, compensation of Rs.1,15,000/- towards ‘loss of earning power’ and compensation of Rs.10,000/- towards ‘shock and mental agony’. The Tribunal awarded only an amount of Rs.15,000/- under the head ‘pain and sufferings’ and Rs.5000/- under the head ‘shock and mental agony’. 17. Taking into account the fact that the appellant had sustained a fracture of the shaft of the femur that he was treated as an inpatient for a period of 18 days and he was indisposed for a period of four months, I hold that the appellant is entitled to an amount of Rs.15,000/- towards ‘loss of amenities’. 18. With respect to other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed in part, by 8 MACA No.844 of 2009 enhancing the compensation by a further amount of Rs.27,000/- (i.e. Rs.12,000/- towards ‘loss of earnings’ and Rs.15,000/- towards ‘loss of amenities’) with interest on the said amount at the rate of 6% per annum from the date of the claim petition till the date of deposit, after deducting interest for a period of 131 days i.e. the period of delay in preferring the appeal as ordered by this Court on 22.9.2021 in C.M. Application No.970/2009, and a cost of Rs.5000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the compensation amount to the appellant in accordance with law. rmm/23/11/2021