Shareef v. Murukanandan; M/s Associated Cement Company Limited; New India Assurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 7[TH] DAY OF JANUARY 2022 / 17TH POUSHA, 1943 ``` ``` MACA NO. 529 OF 2009 ``` ``` AGAINST THE AWARD DATED 19.09.2007 IN OPMV 92/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI ``` ## **`APPELLANT:`** ``` SHAREEF, AGED 28 YEARS S/O. HAMZA HAJI, MAMPADAN HOUSE, NEELANCHERI P.O., NILAMBUR TALUK, MALAPPURAM DIST. BY ADVS. SRI.K.SHIBILI NAHA SMT.A.LOWSY ``` ## **`RESPONDENTS:`** ``` 1MURUKANANDAN, S/O PAZHANI CHETTIAR, 133, MARAKKAMBANI, P.O. MADHUKARA,, VIA COIMBATORE, TAMILNADU STATE (DRIVER) 2M/S ASSOCIATED CEMENT COMPANY LIMITED MADHUKKARAI CEMENT WORKS, P.O. MADHUKKARAI,COIMBATORE, TAMILNADU STATE (OWNER) 3NEW INDIA ASSURANCE CO. LTD. 863, BIG BAZAR STREET, COIMBATORE (INSURER). ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 529 OF 2009 2 ``` ## **Dated this the 7[th] day of January, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.141/2003 on the file of the Motor Accidents Claims Tribunal, Manjeri. 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 01.03.2002. It was his case that, on the aforesaid date, while he was travelling in a van bearing registration No. KL 9F 7177 from Kochi to Ootty,, when they reached Kamchikode, a lorry bearing registration No. TN 37 S/7364 (lorry), driven by the first respondent in a negligent manner, hit the van. The lorry was owned by the second respondent and insured with the third respondent. The appellant was the Managing Director of a Travel Agency in the Kingdom of Saudi Arabia and was ## **`MACA NO. 529 OF 2009 3`** earing a monthly income equivalent to Rs.24,000/-. The appellant had sustained serious injuries including three fractures and was treated as an inpatient for a period of 18 days at the Fort Hospital, Palakkad and the Al-shifa Hospital, Perinthalmanna. Hence, the appellant claimed a compensation of Rs.3,16,000/- from the respondents. 3. The other injured in the same accident had also filed O.P.(M.V) No.92/2003 before the same Tribunal. 4. The first respondent had filed separate written statements in the two claim petitions admitting the accident. However, it was contended that the accident occurred due to the negligence of the appellant. 5. The third respondent had filed separate written statements in the claim petitions admitting that the lorry had a valid insurance coverage, but the third respondent disputed the age, income and occupation of the petitioners in the two claim petitions. 6. The Tribunal consolidated and jointly tried the ## **`MACA NO. 529 OF 2009 4`** two claim petitions. 7. The petitioners in the two claim petitions produced and marked Exhibits A1 to A5 in evidence. The respondents did not let in any evidence. 8. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.66,412/- with interest and cost. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Smt.Lowsy A., the learned counsel appearing for the appellant/petitioner and Sri. Lal K. Joseph the learned counsel appearing for the third respondent/insurer. 11. The question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ``` MACA NO. 529 OF 2009 5 ``` ## **Negligence and Liability** 12. Exhibit A3 charge sheet filed by the police proves the fact that the accident occurred due to the negligence of the first respondent. Admittedly, the respondents 2 and 3 were the owner and insurer of the lorry. The respondents have not let in any evidence to discredit Exhibit A3 charge sheet. The third respondent has also not proved that the second respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Income** 13. The appellant had claimed that he was working as the Managing Director of a Travel Agency in the Kingdom of Saudi Arabia and that he was earning a monthly income equivalent to Rs.24,000/-. Nonetheless, the appellant did not produce any material to substantiate ``` MACA NO. 529 OF 2009 6 ``` his income. Accordingly, the Tribunal fixed the notional monthly income of the appellant at Rs.2500/-. 14. In **Chameli Devi and others v. Jivrail Mian and others** [(2019) KHC 5352], the Honourable Supreme Court has the notional income of a fixed monthly carpenter in the year 2001 at Rs.5000/-. Similarly, in Chandra @ **Chnada @ Chandraram v. Mukesh Kumar Yadav** [2021 SCC Online SC 850], the Honourable Supreme Court has fixed the notional monthly income of a driver in the year 2004 at Rs.6000/-. 15. Following the yardsticks in the above-cited decisions and considering the fact that the accident occurred in the year 2002, I fix the notional monthly income of the appellant at Rs.5000/-. ## **Loss of earnings** 16. It is on record, as per Exhibit A2 wound certificate and Exhibit A4 discharge summary, that the appellant was treated as an inpatient for a period of 18 ``` MACA NO. 529 OF 2009 7 ``` days in two hospitals. He had suffered a fracture of both bones of his right leg and a head injury. In the above circumstances, I confirm the finding of the Tribunal that the appellant was indisposed for a period of four months. In view of the re-fixation of the notional monthly income of the appellant at Rs.5000/-, I award him a further amount of Rs.10,000/- towards ‘loss of earnings’ ## **- By stander expenses and extra nourishment.** 17. The Tribunal has awarded the appellant an amount of Rs.1800/- under the above two heads, which according to me is on the lower side. Considering the fact that the appellant was treated as an inpatient for a period of 18 days and has suffered two fractures and a head injury, I award him an amount of Rs.3600/- each towards ‘by-stander expenses’ and ‘extra nourishment’, totalling to Rs.72,000/- ## **Pain and suferings and loss of amenities** 18. The Tribunal has awarded the appellant only an ## **`MACA NO. 529 OF 2009 8`** amount of Rs.10,000/- towards ‘pain and sufferings’. 19. Going by the nature of injuries sustained by the appellant, that he was treated as an inpatient for a period of 18 days and that he was indisposed for a period of four months, I award the appellant a further amount of Rs.20,000 under the head ‘pain and sufferings’ and an amount of Rs.10,000 under the head ‘loss of amenities’. 20. With respect to the amounts awarded under the heads transportation expenses, review expenses and medical expenses, I find that the Tribunal has awarded reasonable and just compensation. 21. On an over all re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. ## **`MACA NO. 529 OF 2009 9`** |SI.<br>No|Head of claim|Amount awarded<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Transportation|1000|1000| |2|Review expenses|2000|2000| |3|Damage to clothing|250|250| |4|By-stander expenses|1800|3600| |5|Extra nourishment|0|3600| |6|Pain and sufferings|10000|30000| |7|Loss of amenities|0|10000| |8|Medical expenses|41362|41362| |9|Loss of earnings|10000|20000| ||Total|66412|111812| In the result the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.45,400/- with interest at the rate of 7% per annum from the date of petition till the date of deposit, after deducting interest for a period of 416 days i.e the period of delay and as ordered by this Court on 28.03.2019 in C.M.Application No. 560/2009, and a cost of Rs.8000/-. ``` MACA NO. 529 OF 2009 10 ``` The third 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/petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** rmm7/1/2021