Shamsudheen v. Jaimson Job Bhavan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 5[TH ] DAY OF JULY 2021 / 14TH ASHADHA, 1943** **MACA NO. 1174 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 610/2004 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL ,KALPETTA, WAYANAD** ## **APPELLANT/S/PETITIONER:** **SHAMSUDHEEN AGED 30 YEARS, S/O MOIDU,** **KAIPPRAVAN HOUSE, MAKKIYAD POST,, THONDERNADU VILLAGE, MANANTHAVADI TALUK, WYNAD.** **BY ADV SRI.RAJESH CHAKYAT** ## **RESPONDENT/S/RESPONDENTS:** **1 JAIMSON JOB BHAVAN, THAZHATHUVADAKKU P.O., ENATHU, KOLLAM DISTRICT, NOW WORKING AS TEACHER AT M.T.D.M.HIGH SCHOOL, THONDERNADU POST, THONDARNADU, MANANTHAVADI, S/O. JOSE, PADAYATTIL, HOUSE, ANGAMALY P.O.** - **2 RASHEED** **S/O.ERAMULLAN EKARATH HOUSE** **HOUSE NO.1/327, MAZHAKKUNNU POST, THALASSERRY, KANNUR DISTRICT.** **3 THE BRANCH MANAGER NATIONAL INSURANCE CO.LTD. DIVISIONAL OFFICE, KANNUR.** **BY ADVS.** **SRI.ABRAHAM MATHEW (VETTOOR) SMT.DEEPA GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 05.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.1174 of 2009 -2- ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 1174 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of July, 2021 ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.610 of 2004 on the file of the Motor Accidents Claims Tribunal, Kalpatta. The respondents in the appeal were the respondents before the Tribunal. 2. The concise case of the appellant in the claim petition, relevant for the determination of the appeal was that: on 16.11.2003, while the appellant was riding a motorcycle bearing registration No. KL12B/4135 from Korome to Makkiyad, an Ambassador car bearing Registration No.KL11A/4816 (offending vehicle) driven by the first respondent in a rash and negligent manner hit the motorcycle of the appellant. ## M.A.C.A. No.1174 of 2009 -3- The appellant sustained serious injuries and was admitted in the Fathima Mission Hospital, Kalpatta, where he had treated as an in-patient for a period of eight days till 24.11.2003. The offending vehicle was owned by the second respondent and insured with the third respondent. The appellant was a business man by profession and earning a monthly income of Rs.5,000/-. He contended that the respondents were jointly and severally liable to pay compensation to him, which he quantified at Rs.2,51,000/-, but limited to Rs.1,50,000/-. 3. The second respondent did not contest the proceedings and was set ex-parte. 4. The first respondent filed a written statement denying the fact that the accident occurred due to negligence of the first respondent. It was also contended that the claim petition was bad for nonjoinder of necessary parties. M.A.C.A. No.1174 of 2009 -4- 5. The third respondent – Insurance company filed a written statement admitting that the offending vehicle had a valid insurance policy. However, it was contended that the amount of compensation claimed under different heads was excessive. 6. The appellant marked Exts.A1 to A4 in evidence. Ext.C1, Medical Certificate issued by the District Medical Board, Wayanad was marked as Ext.C1. 7. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by permitting the appellant to realise an amount of Rs.4,125/- with interest at the rate of 6% per annum from the date of petition till the date of payment along with proportionate costs from third respondent. The Tribunal also found that the appellant was guilty for contributory negligence as he failed to produce the M.A.C.A. No.1174 of 2009 -5- final report and it was discernible from Ext.A2 Scene Mahazar that the appellant was also negligent in causing the accident. 8. Aggrieved by the finding of the Tribunal that the appellant was guilty for contributory negligence and also dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard the learned counsel for the appellant and the learned counsel appearing for the third respondent - insurance company. 10. The questions that arise for consideration in this appeal is: - i, Whether the appellant is guilty for contributory negligence? ii, Whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## M.A.C.A. No.1174 of 2009 -6- 11. The appellant had specifically averred in the claim petition that while he was travelling on his motor cycle on 16.11.2003, the offending vehicle driven by the first respondent in a rash and negligence manner came from the opposite side and hit the appellant, causing him serious injuries. The appellant had produced Ext.A1 FIR and Ext.A2 Scene Mahazar. 12. The appellant had not produced the final report. The third respondent had filed a written statement admitting that the offending vehicle had a valid insurance policy. The third respondent also did not have a case that the appellant was guilty for contributory negligence. Nevertheless, the Tribunal, based on the fact that the appellant had failed to implead the owner and insurer of the motorcycle, based on Ext.A2 scene mahazar held that the appellant and the first respondent were guilty for contributory M.A.C.A. No.1174 of 2009 -7- negligence. This, according to me, is patently wrong and erroneous. 13. Firstly, there is no pleading from the part of any of the respondents that the appellant was guilty for contributory negligence. Secondly, it was the specific case of the appellant that it was the first respondent who was negligent in causing the accident, therefore, the appellant did not implead the owner and rider of the motorcycle that he was riding. According to me, there is no necessity to implead the owner and insurer of the motorcycle, unless the respondents had a case that the appellant was also guilty for contributory negligence. Thus, I answer question No.1 in favour of the appellant and set aside the finding of contributory negligence as against the appellant. 14. Now coming to the question of compensation awarded by the Tribunal. ## M.A.C.A. No.1174 of 2009 -8- 15. The appellant had claimed that he was a business man by profession and earning a monthly income of Rs.5,000/- per month. The Tribunal, fixed the notional income of the appellant at Rs.1,000/- per month. 16. 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. 17. Following the parameters laid down in the above decision and considering the fact that the appellant was 26 years at the time of the accident and the accident occurred on 16.11.2003, I fix the notional income of the appellant at Rs.4,000/- per month. **Loss due to disability** 18. Although the Tribunal had referred the appellant to the duly constituted Medical Board, which ## M.A.C.A. No.1174 of 2009 -9- by Ext.C1 has certified that the appellant has a permanent disability of 4%, the Tribunal did not award any compensation under the head, loss due to disability. This, according to me, is improper and wrong and against the settled proposition of law. The Tribunal, though had marked Ext.C1 in evidence, has not adverted to the same, and has not awarded compensation for the loss due to disability. Taking into consideration the fact that the appellant was aged 26 years at the time of the accident, the relevant multiplier being '17', his disability at 4% as certified in Ext.C1, and his notional income being 4,000/-, I fix the compensation for loss due to disability at Rs.32,640/-. ## **Loss of earnings** 19. As per Ext.C1, the Medical Board has found that the appellant sustained a fracture inferior pole of patella left. However, the Tribunal, in the impugned M.A.C.A. No.1174 of 2009 **==> picture [21 x 7] intentionally omitted <==** award has not adverted to any fracture sustained by the appellant as seen in Ext.C1. 20. As the appellant had sustained a fracture and was treated as an in-patient for a period of eight days, I hold that the appellant was incapacitated for a period of three months. Therefore, I fix the compensation under the head 'loss of earnings' at Rs.12,000/- instead of Rs.1,000/- fixed by the Tribunal. ## **Bystander Expenses** 21. Admittedly, the appellant was treated as an inpatient for a period of eight days. The Tribunal, awarded only an amount of Rs.500/- towards bystander expenses, which according to me is on the lower side. Taking into account the fact that the appellant was hospitalised for a period of eight days, I fix the by-stander expenses at Rs.250 for a period of eight days, i.e., an amount of Rs.2,000/-. M.A.C.A. No.1174 of 2009 -11- ## **Loss of Amenities** 22. Although the appellant had claimed an amount of Rs.50,000/- towards loss of amenities, no amount was awarded by the Tribunal. Considering the fact that the appellant had sustained a fracture and he was hospitalised for a period of eight days and incapacitated for a period of three months, I fix the compensation on his loss of amenities at Rs.5,000/-. 23. With respect to the other heads of compensation, I find that the Tribunal had awarded reasonable and just compensation. 24. On an overall re-appreciation of the pleadings, materials on record and the law referred in the aforecited decision, I am of the firm opinion that the petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. M.A.C.A. No.1174 of 2009 -12- |Sl.No.|Heads of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---| |1|Loss of earning|1,000/-|12,000/-| |2|Transport|500/-|500/-| |3|Damages to clothing|250/-|250/-| |4|By-stander expenses|500/-|2,000/-| |5|Expenses<br>of<br>extranourishment|1,500/-|1,500/-| |6|Medical expenses|-|-| |7|Extranourishment|500/-|500/-| |8|Compensation for pain<br>and sufferings|5,000/-|5,000/-| |9|Compensation for loss<br>of amenities|Nil|5,000/-| |10|Loss due to disability|Nil|32,640/-| |||**8,250/-**|**59,390/-**| |||8,250-<br>50%=4,125|| ## M.A.C.A. No.1174 of 2009 -13- In the result, the appeal is allowed, in part, permitting the appellant to realise from the third respondent the balance amount of Rs.4,125/-, the amount that was deducted towards contributory negligence and the enhanced compensation of Rs.59,390/-, totalling to an amount of Rs.63,515/(Rupees Sixty Three Thousand Five Hundred and Fifteen only) with interest at the rate of 6% per annum from the date the appeal was admitted i.e., 30.03.2021 till the date of deposit. I am limiting the interest from the date of admission because although the appeal was filed on 10.06.2009, no steps were taken to issue notice to the respondents. It was only on 30.03.2021 steps were taken and the appeal was admitted. The appellant would also be entitled to proportionate costs on the above fixed compensation. The third respondent shall deposit the enhanced compensation awarded in the appeal with interest and proportionate costs before M.A.C.A. No.1174 of 2009 -14- the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the deposited amount to the appellant, in accordance with law. **Sd/-** **C.S.DIAS JUDGE** **RK**