Saibunisa v. Muhammed Shafi and The New India Assurance Company Ltd. and Hayarunisa and Muhammed Hakkim

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 13[TH] DAY OF JULY 2021 / 22ND ASHADHA, 1943** **MACA NO. 128 OF 2009** **AGAINST THE AWARD IN OP(MV)NO. 2424/2004 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANT/PETITIONER:** **SAIBUNISA, KANJIRANKALAYIL, OMANAMUKKU BHAGOM, PADINJATTUM BHAGOM, ATHIRAMPUZHA VILLAGE,, KOTTAYAM.** **BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE** ## **RESPONDENTS:** - **1 MUHAMMED SHAFI,KANJIRANKALAYIL, OMANAMUKU BHAGOM, ATHIRAMPUZHA.** - **2 THE NEW INDIA SSURANCE COMPANY LTD. KOTTAYAM.** - ***3 MUHAMMED RAFI, KANJIRAMKALAYIL OMANAMUKU BHAGOM, ATHIRAMPUZHA. (DELETED)** - ***4 MUHAMMED HASIM, KANJIRAMKALAYIL OMANAMUKU BHAGOM, ATHIRAMPUZHA KOTTAYAM.(DELETED)** **(THE RESPONDENTS 3 AND 4 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 08.04.2021 IN IA NO.1 OF 2021)** - **5 HAYARUNISA, KANJIRAMKALAYIL OMANAMUKU BHAGOM, ATHIRAMPUZHA, KOTTAYAM.** MACA.No.218 of 2009 _2_ **6 MUHAMMED HAKKIM, KANJIRAMKALAYIL OMANAMUKU BHAGOM, ATHIRAMPUZHA, KOTTAYAM.** **BY ADV SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.218 of 2009 _3_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No.128 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of July, 2021 ## **JUDGMENT** The appellant was the petitioner in OP(MV)No.2424 of 2004 on the file of the Motor Accidents Claims Tribunal, Kottayam. The respondents in the appeal were the respondents before the Tribunal. Pursuant to the orders of this Court on 08.04.2021 in IA No.1 of 2021, the respondents 3 and 4 were deleted from the party array. The parties are, for the sake of convenience, wherever the context so requires are referred to as per their status in the claim petition, 2. The facts in brief in the claim petition, relevant for the determination of the appeal, are : on 27.01.2004 while the petitioner was a riding pillion on MACA.No.218 of 2009 _4_ motorcycle bearing registration No.KL 5L/471 driven by the 1[st] respondent, when the vehicle reached Kavalabhagam, the 1[st] respondent lost control of the vehicle, which turned turtle. The petitioner sustained serious injuries and was treated as an in-patient at Carithas Hospital, Kottayam from 27.01.2004 to 04.02.2004. She sustained a 1 Type compound fracture both knees (right) leg lower 1/3 region. The petitioner was a Tailor by profession and was also doing poultry business. She was earning a monthly income of Rs.4,000/-. The accident occurred on account of the negligence on the part of the 1[st] respondent. The 2[nd] respondent was the owner of the vehicle and the 3[rd] respondent was the insurer. As the 2[nd] respondent died, the supplemental respondents 4 to 7 were impleaded as his legal representatives. 3. The respondents 1 and 5 did not contest the MACA.No.218 of 2009 _5_ ## proceedings and were set ex-parte. 4. The 3[rd] respondent filed a written statement disputing the age, occupation and income of the petitioner. It was contended that the rider of the motorcycle did not hold a valid insurance policy and hence there was a violation of the policy conditions. Therefore, the 3[rd] respondent prayed that the petition be dismissed. 5. The respondents 4, 6 and 7 filed a joint written statement stating that the 1[st] respondent drove the vehicle with due care and caution. The accident did not occur due to the negligence on the part of the 1[st] respondent. The 1[st] respondent had a valid driving license bearing No.4056/1996. Hence, the 3[rd] respondent is liable to indemnify the liability of the owner of the vehicle. 6. The petitioner marked Exts.A1 to A10 in MACA.No.218 of 2009 _6_ evidence. The 3[rd] respondent marked Ext.B1 and B2 in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the petitioner to recover an amount from the 3[rd] respondent of Rs.45,165/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation along with cost of Rs.2,500/-. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner/appellant is in appeal. 9. Heard the learned Counsel appearing for the appellant/petitioner and the learned Counsel appearing for the 2[nd] respondent – insurance company. 10. The sole question that emerges for consideration in this appeal is whether the quantum of MACA.No.218 of 2009 _7_ compensation awarded by the Tribunal is reasonable and just? 11. A Constitution Bench of the Hon'ble Supreme Court in **v. National Insurance Company Ltd. Pranay Sethi** [(2017) 16 SCC 680], has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 12. Ext.A3 charge-sheet filed by the Ettumanur police in Crime No.55 of 2004 substantiates that the accident occurred on account of the negligence on part of the 1[st] respondent. Undisputedly, it was the MACA.No.218 of 2009 _8_ deceased 2[nd] respondent who was the owner of the vehicle and the 3[rd] respondent was the insurer of the vehicle. Therefore, it is the 3[rd] respondent who is liable to indemnify the liability of the 2[nd] respondent arising out of the accident. ## **Notional income** 13. The petitioner had claimed that she was a Tailor by profession and also doing poultry farming and earning a monthly income of Rs.4,000/-. The Tribunal fixed the notional income of the appellant at Rs.2,000/- per month. 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. Following the ratio in the afore-cited decision, I am of MACA.No.218 of 2009 _9_ the opinion that the petitioner's income has to be fixed at Rs.4,000/- as claimed in the claim petition. ## **Loss of earnings** 15. Ext.A7 discharge summary and Ext.A8 disability certificate proves that the petitioner had suffered a Type 1 compound fracture both knees (right) leg lower 1/3 region and also there was a punctured wound on the right leg. Therefore, the petitioner was necessarily incapacitated for a period of three months. In the said circumstances and in view of the re-fixation of the income of the petitioner at Rs,4,000/-, I re-fix the compensation under the head ‘loss of earnings’ at Rs. 12,000/- instead of Rs.2,000/fixed by the Tribunal ## **Byestander expenses** 16. It is on record that the petitioner was treated as an in-patient for the period from 27.01.2004 to MACA.No.218 of 2009 _10_ 04.02.2004 i.e., the period of 9 days. The Tribunal fixed the 'byestander expenses' at Rs.1,000/-, which according to me is on the lower side. Hence, I re-fix the 'byestander expenses' at Rs.200/- per day for a period of 9 days, i.e., an amount of Rs.1,800/-, which is an enhancement by Rs.800/-. ## **Loss of amenities** 17. The petitioner had claimed an amount of Rs.60,000/- towards 'loss of amenities'. However, the Tribunal only awarded an amount of Rs.6,000/-, which again according to me is on the lower side. Considering the fact that the appellant had sustained a compound fracture as mentioned above and that she was incapacitated for a period of three months, I am of the opinion that the compensation under the head 'loss of amenities' has to be enhanced by a further amount of Rs.8,000/-, i.e., a total of Rs.14,000/-. MACA.No.218 of 2009 _11_ ## **Loss due to disability** 18. Although, the petitioner had claimed that she has suffered permanent disability at 8% as per Ext.A8 disability certificate, the petitioner did not examine the Doctor who authored the said certificate as per the mandate in **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)]. Hence, it has to be inferred that the petitioner does not have any disability. 19. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 20. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the afore-relied decision, I am of the opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above, that is enhancement by a further amount of Rs.18,800/-, MACA.No.218 of 2009 _12_ namely, Rs.10,000/- towards 'loss of earnings' and Rs.800/- towards 'bye-stander expenses' and Rs.8,000/towards 'loss of amenities'. In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.18,800/- with interest on the enhanced compensation at the rate of 7.5% per annum from the date of petition till the date of deposit and proportionate costs. The 2[nd] respondent shall deposit the enhanced compensation awarded in this appeal with interest and proportionate 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/petitioner in accordance with law. ## **C.S.DIAS,JUDGE** dlk 13.07.2021