Rony Arupathilchira v. The Superintendent of Police, Alappuzha; Kerala State Insurance Alappuzha-branch; and T.R. BijU S/o. Thomas

1 MACA No.2204 of 2011 ## **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. 2204 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 191/2006 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , ALAPPUZHA** ## **APPELLANT/S:** RONY ARUPATHILCHIRA HOUSE, THOTTUVATHALA P.O., KUTTANAD. BY ADVS. SRI.M.V.THAMBAN SRI.B.BIPIN SRI.R.REJI SMT.THARA THAMBAN ## **RESPONDENT/S:** 1 THE SUPERINTENDENT OF POLICE ALAPPUZHA-688001. 2 T.R.BIJU S/O.THOMAS, VARIKONAM PUTHEN VEEDU, NEAR MAHAVISHNU TEMPLE, KATTAKKADA, THIRUVANANTHAPURAM-695572. 3 KERALA STATE INSURANCE ALAPPUZHA-688001 BRANCH. BY ADV.K.G.SAROJINI, GOVERNMENT PLEADER, R1 AND R3 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2204 of 2011 ## **C.S.DIAS, J.** ## **====================== MACA No.2204 of 2011** **====================== Dated this the 15[th] day of November, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.191/2006 on the file of the Additional Motor Accidents Claims Tribunal, Alappuzha. 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 19.2.2005. It was his case that, on the above said day, while he was riding pillion on the motor cycle bearing registration No.KL-J 7902, when he reached the Vazhicherry bridge, a jeep bearing registration No.KL4/E-6236 driven by the second respondent, hit the motor cycle. The appellant and the rider of the motor cycle had 3 MACA No.2204 of 2011 sustained serious injuries. The appellant had sustained a fracture of the shaft of right femur. He was treated as an inpatient for a period of 7 days. The appellant was working as a Salesman in a Jewellery shop at Alappuzha and was earning a monthly income of Rs.5,000/-. The jeep was owned by the first respondent and insured with the third respondent. The appellant claimed a compensation of Rs.1,33,291/- from the respondents. 3. The rider of the motor cycle also filed OP(MV) 305/2006 against the respondents claiming compensation on account of the injuries sustained to him in the accident. 4. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 5. The third respondent had filed written statements refuting the allegations in the claim petitions. The third respondent contended that the accident occurred due to the negligence of the rider of the motor cycle. The third respondent also disputed the age, income 4 MACA No.2204 of 2011 and occupation of the appellant and the other petitioner. 6. The Tribunal consolidated and jointly tried the two claim petitions. 7. The petitioners in the two claim petitions marked Exts A1 to A18 in evidence. The respondents did not let in any evidence. 8. The Tribunal, by its common award, allowed the captioned claim petition, by permitting the appellant to realise from the third respondent an amount of Rs.24,400/with interest and costs. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in the appeal. 10. Heard; Sri.M.V Thamban, the learned counsel appearing for the appellant/petitioner and the learned Government Pleader appearing for the respondents 1 and 3. 11. The question that arises for consideration in the appeal is whether the quantum of compensation awarded 5 MACA No.2204 of 2011 by the Tribunal is reasonable and just. ## **Negligence and liability** 12. Ext A1 final report and FI statement prove that the accident happened due to the negligence of the second respondent. Admittedly, the first respondent was the owner and third respondent was the insurer of the jeep. The third respondent has not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 13. The appellant had claimed that he was a Salesman in a jewellery shop and was earning a monthly income of Rs.5,000/-. The Tribunal, without fixing the notional income of the appellant has awarded a consolidated amount of Rs.10,000/- towards loss of earnings. The course adopted by the Tribunal, according to me, is wrong and unsustainable in law. The Tribunal 6 MACA No.2204 of 2011 ought to have fixed the notional monthly income of the appellant before quantifying the loss of earnings. 14. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 15. Following the yardstick in the aforecited decision and considering the fact that the accident happened in the year 2005, I fix the notional monthly income of the appellant at Rs.5,000/- as claimed in the claim petition. ## **Loss of earnings** 16. The appellant had sustained a fracture of the shaft of the right femur. He was treated as an inpatient for a period from 19.2.2005 to 25.2.2005. Thereafter, he was admitted for the purpose of removing the K-nail. In the said circumstances, I hold that the appellant was indisposed for a period of six months. 7 MACA No.2204 of 2011 17. On a consideration of the notional income of the appellant at Rs.5,000/- and holding him to be indisposed for a period of six months, I refix the compensation for loss of earnings at Rs.30,000/- instead of Rs.10,000/awarded by the Tribunal, i.e., an enhancement of **Rs.20,000/-.** ## **Bystander expenses** 18. It is on record as per Ext A15 that the appellant was treated as an inpatient for a period of 7 days. However, the Tribunal has awarded only an amount of Rs.700/- towards bystander expenses, which according to me is on the lower side. Therefore, I award an amount of Rs.250/- per day for a period of 7 days towards bystander expenses, which amounts to Rs.1,750/-, i.e., an enhancement of **Rs.1,050** /-. ## **Loss of amenities** 19. Even though the appellant had claimed compensation for loss of amenities, the Tribunal has not 8 MACA No.2204 of 2011 awarded any amount under the said head. 20. Taking into account the fact that the appellant had sustained a fracture of the shaft of right femur, he was treated as an inpatient for a period of 7 days and that he was indisposed for a period of six months, I hold that the appellant is entitled for compensation for loss of amenities at **Rs.15,000/-.** ## **Other heads of compensation** 21. With respect to the 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 enhancing the compensation by an amount of **Rs.36,050/-** (Rupees Thirty Six Thousand Fifty only) (Rs.20,000/- under the head 'loss of earnings', Rs.1050/under the head 'bystander expenses' and Rs.15,000/under the head 'loss of amenities') with interest on the said amount at the rate of 7.5% per annum from the date 9 MACA No.2204 of 2011 of claim petition till the date of realisation and a cost of Rs.5,000/-. The third respondent/insurer is ordered to deposit the enhanced compensation amount with interest and costs before the Tribunal within a period of 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. SD/- sks/15.11.2021 **C.S.DIAS, JUDGE**