Shamveel T.K. v. M.K. Sobhana, Sudeep P, Oriental Insurance Company Ltd., Muhammed Subair A.P. and Reliance General Insurance Company Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943** ## **MACA.No.440 OF 2013** **AGAINST THE AWARD IN OPMV 1026/2010 DATED 13-08-2012 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/PETITIONER:** **SHAMVEEL T.K. S/O.HASSAN RESIDING AT SHAMNA MANZIL P.O KOMMERI KOZHIKODE** **BY ADV. SRI.AVM.SALAHUDIN** ## **RESPONDENT/S:** |**1**|**M.K.SOBHANA**| |---|---| ||**W/O.SURENDRAN ,**| ||**89/10 CHIRAKKAL GP**| ||**SUREKHA P.O CHIRAKKAL**| ||**KANNUR 670 011**| |**2**|**SUDEEP P**| ||**S/O.SURENDRAN,**| ||**RESIDING AT SUREKHA,P.O**| ||**CHIRAKKAL**| ||**KANNUR 670 011**| |**3**|**ORIENTAL INSURANCE COMPANY LTD**| ||**DIVISIONAL OFFICE NO 1,**| ||**2ND FLOOR UNITY COMPLEX**| ||**S.N.PARK RIOAD**| ||**CANNORE 670 001**| |**4**|**MUHAMMED SUBAIR A.P**| ||**S/O.AHAMMEDKUTTY K**| ||**SAFEEDA MANZIL ALANKIYIL P.O**| ||**NARATH KANNUR 670 603**| |**5**|**RELIANCE GENERAL INSURANCE COMPANY LTD**| ||**ADITHYA TOWERS**| ||**THAVAKKARA ROAD**| ||**OPP.RTO OFFICE COLLECTORATE**| ||**KANNUR 670 001**| MACA.No.440 OF 2013 2 **R1, R3 BY ADV. SRI.M.JACOB MURICKAN R1, R5 BY ADV. SRI.K.B.RAMANAND** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.440 OF 2013 3 ## **`P.V.KUNHIKRISHNAN, J --------------------------------------M.A.C.A. No. 440 of 2013`** ``` ------------------------------------------ Dated this the 25[th] day of March 2021 ``` ## **`JUDGMENT`** ``` The appellant is the petitioner in O.P(M.V). No. 1026/2010 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The above claim petition was filed under Section 166 of the Motor Vehicles Act claiming compensation for the personal injuries sustained to the petitioner in the accident. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal) ``` ``` 2. The short facts are like this: - On 29.10.2009, while the petitioner was travelling in his Indica Car bearing Registration No. KL-13-S/9819 from Puthiyatheru to Kannur and when the vehicle reached at Chettipeedika junction, it collided with ``` MACA.No.440 OF 2013 4 `another car bearing Registration No. KL-13-T/8415. The petitioner sustained serious injuries and was admitted at AKG Hospital, Kannur. Thereafter, he was treated at Baby Memorial Hospital, Kozhikode. According to the petitioner, the accident occurred due to the negligent driving of the Indica car by the Second respondent. First respondent is the owner and 3[rd] respondent is the insurer of the said vehicle at the relevant time. Later the 4[th] and 5[th] respondents who were the RC Owner and insurer of the car were also impleaded as respondents.` ``` 3. To substantiate the case, Exhibits A1 to A5 were marked on the side of the petitioners and Exhibit B1 charge sheet is marked on the side of the respondents. Exhibit C1 is the disability certificate. After going through the evidence and documents, the Tribunal found that, both drivers of the vehicle contributed equally for the accident. Therefore, the Tribunal found that the petitioner is entitled an ``` MACA.No.440 OF 2013 **==> picture [8 x 9] intentionally omitted <==** ``` amount of Rs.3,65,441/- (Rupees Three Lakhs Sixty Five Thousand Four Hundred and Forty One Only) with interest at the rate of 7% p.a. The Tribunal directed Respondent Nos. 3 and 5 to pay the compensation equally. Aggrieved by the quantum of compensation, petitioner filed this appeal. ``` `4. Heard the learned counsel for the petitioner` `and the learned counsel for respondent Nos. 3 and 5.` ``` 5. The learned counsel for the petitioner submitted that the accident occurred in this case on 29.10.2009. The petitioner was aged 24 years at the time of accident and he sustained 37% permanent disability as per Exhibit C1 disability certificate issued by the Medical Board. The Tribunal fixed the monthly income of the petitioner as Rs.3,000/-. According to the learned counsel, petitioner was a business man and was getting a monthly income of Rs.10,000/-. The learned counsel relied on the judgment of the Apex Court inRamachandrappa v. ``` MACA.No.440 OF 2013 6 **`The Manager, Royal Sundaram [2011(13) SCC`** ``` 236], and contended that his notional income fixed by the Tribunal is not correct. ``` ``` 6. The learned counsel for the respondent Nos. 3 and 5 contended that in the appeal memorandum, it is stated that his monthly income is Rs.6,000/-. This Court may not re-fix the monthly income of the petitioner. ``` ``` 7. I perused the claim petition. In the claim petition, the monthly income claimed by the petitioner is Rs.10,000/-. In the appeal memorandum, it is prayed that the monthly income of the petitioner - may be taken as atleast Rs.6,000/. In ``` ``` Ramachandrappa v. The Manager, Royal Sundaram [2011(13) SCC 236], the Apex Court fixed the monthly income for a coolie in the year 2004 as Rs.4,500/-. If the principle laid down by the Apex Court in the year 2004 is taken as a basis, this Court can safely fix the monthly income of the petitioner as ``` MACA.No.440 OF 2013 7 ``` Rs.7,000/- in the year 2009. If that is the case, the permanent disability is to be reassessed in the following manner:- ``` ``` 7000x12x18x37/100=Rs. 5,59,440/- ``` ``` The Tribunal awarded an amount of Rs. 2,39,760/- and that is to be deducted. Therefore, the petitioner is entitled an additional amount of Rs.3,19,680/- (Rupees Three Lakhs Nineteen Thousand Six Hundred and Eighty Only) towards loss of disability. ``` ``` 8. The Tribunal not awarded any amount for loss of earnings. Considering the serious injuries sustained by the petitioner, he may not be able to work atleast for a period of three months. Therefore, the appellant is entitled an amount of Rs.21,000/- (Rupees Twenty One Thousand Only) towards loss of earnings. ``` `9. Similarly, for loss of amenities, no amount is` `awarded by the Tribunal. After hearing both sides, I` MACA.No.440 OF 2013 8 ``` find that, for loss of amenities an amount of Rs.15,000/- (Rupees Fifteen Thousand Only) can be granted. ``` ``` 10. Towards bystander’s expenses also no amount is awarded by the Tribunal. The petitioner was in hospital for 15 days. Bystanders expenses can be granted at the rate of Rs.200/- per day for a period of 15 days. Therefore, an amount of Rs.3,000/- (Rupees Three Thousand Only) is also entitled by the appellant for bystander’s expenses. ``` `11. The enhanced compensation entitled by the` `appellant can be summarised like this:-` ``` HeadAmount CompensationforRs.3,19,680/- disability Loss of earningsRs.21,000/- Loss of amenitiesRs.15,000/- Bystanders’ expensesRs.3,000/- ``` ``` TotalRs.3,58,680/- ``` ``` Therefore, this appeal is allowed in part. The ``` MACA.No.440 OF 2013 **==> picture [8 x 9] intentionally omitted <==** ``` impugned award is modified and the appellant is entitled an enhanced compensation of Rs.3,58,680/- (Rupees Three Lakhs Fifty Eight Thousand Six Hundred and Eighty Only) with interest at the rate of 7% p.a, from the date of application till realisation. The respondent Nos. 3 and 5 are directed to pay the enhanced compensation with interest equally. ``` ## **`Sd/-`** ``` P.V.KUNHIKRISHNAN ``` ``` JUDGE ``` ``` avs ```