Sivasankaran v. Mansoor and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 25[TH] DAY OF JANUARY 2022 / 5TH MAGHA, 1943** **MACA NO.2798 OF 2012** **AGAINST THE AWARD DATED 28.07.2012 IN O.P.(MV) NO.1251/2008 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI. APPELLANT/PETITIONER:** **SIVASANKARAN,** **S/O.VELAYUDHAN,** **PANGIL HOUSE, EDAKKARA AMSOM, WEST PERUMKULAM, NILAMBUR TALUK, MALAPPURAM DISTRICT.** **BY ADVS. SRI.P.VENUGOPAL (1086/92) SMT.T.J.MARIA GORETTI** ## **RESPONDENTS/RESPONDENTS:** **1 MANSOOR, S/O. MOHAMMEDKUTTY,** **THUPPILIKKADAN HOUSE, EDAKKARA AMSOM, KARAPPURAM, KALKKULAM, MOOTHEDAM P.O., NILAMBUR TALUK,MALAPPURAM DISTRICT, PIN-679 331.** **2 SHAIJU, S/O.PRABHAKARAN,** **VALAYIL HOUSE, KARAPPURAM, MOOTHEDAM P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-679 331.** **3 MS.UNITER INDIA INSURANCE CO. LTD., BRANCH OFFICE, AM BUILDING,POST BOX NO.5, HOSPITAL ROAD, NILAMBUR P.O., MALAPPURAM DISTICT, PIN-679 329.** ## **BY ADV SMT.T.C.SOWMIAVATHY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO.2798 OF 2012** -2- **C.S. DIAS, J. ----------------------------------------------------MACA No.2798 of 2012 ----------------------------------------------------Dated this the 25[th] day of January, 2022** ## **JUDGMENT** The appellant was the petitioner in O.P.(MV) No.1251 of 2008 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 a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 10.09.2006. It was his case that, while he was waiting at the Bus stand on the NilamburVazhikkadavu road, a motorcycle bearing registration No.KL-10/X-1460, ridden by the first respondent in a rash and negligent manner, hit the appellant. The appellant sustained serious injuries, including four fractures and was treated as an inpatient for a period of ## **MACA NO.2798 OF 2012** -3- 4 days. The motorcycle was owned by the second respondent and insured with the third respondent. The appellant was a watchman and was earning a monthly income of Rs.3,000/-. Hence, the appellant claimed a compensation of Rs.1,00,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceeding and were set ex-parte. 4. The third respondent had filed a written statement, admitting that the motorcycle had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the appellant. 5. The appellant had produced and marked Exts.A1 to A3 series in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the **MACA NO.2798 OF 2012** -4- third respondent an amount of Rs.30,575/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri. P. Venugopal, the learned counsel appearing for the appellant/petitioner and Sri. T. C. Sowmiavathy, the learned counsel appearing for the third respondent insurer. 9. The point that emanates for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. The specific case of the appellant was that the accident occurred due to the negligence of the first respondent. The appellant produced Ext.A1 FIR to substantiate his claim. The respondents did not let in any evidence. In view of the uncontroverted averments on record read with Ext.A1, I am of the view that the ## **MACA NO.2798 OF 2012** -5- accident occurred due to the negligence of the first respondent. Admittedly, the second respondent was the owner and the third respondent was the insurer of the motorcycle. 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** 11. The appellant had claimed that he was a watchman by profession and earning a monthly income at Rs.3,000/-. The Tribunal fixed the notional monthly income of the appellant at Rs.2,500/-. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** **[(2011) 13 SCC 236]** , the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. **MACA NO.2798 OF 2012** -6- 13. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2006, I re-fix the notional monthly income of the appellant at Rs.3,000/- as claimed in the claim petition. ## **Loss of earnings** 14. It is proved that the appellant had sustained a Type III compound fracture of both bones of his right leg, fracture of the spine of the right scapula, fracture of the acromian right and fracture of the superior angle of the right scapula. Even though he was treated as an inpatient for a period of 4 days, taking into account the fact that he was a watchman by profession, I hold that he was indisposed for a period of six months. 15. In view of the re-fixation of the notional monthly income of the appellant at Rs.3,000/-, I award him a further amount of Rs.18,000/- under the head 'loss of income' i.e., an enhancement by Rs.10,500/-. **MACA NO.2798 OF 2012** -7- ## **Pain and suffering and loss of amenities** 16. The Tribunal has awarded only an amount of Rs.12,500/- towards 'pain and suffering' and has not awarded any amount towards 'loss of amenities'. Taking into account the serious injuries sustained by the appellant, that he was indisposed for a period of six months and he was treated as an inpatient for a period of 4 days, I award the appellant a further amount of Rs.7,500/- under the head 'pain and suffering' and Rs.7,500/- under the head 'loss of amenities'. 17. With respect to the other heads of compensation awarded by the Tribunal, I find the same to be reasonable and just. In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.25,500/- (i.e, a further amount of Rs.10,500/towards 'loss of earning', a further amount of Rs.7,500/towards 'pain and suffering' and an amount of **MACA NO.2798 OF 2012** -8- Rs.7,500/- towards 'loss of amenities') with interest and at the rate of 7% per annum from the date of petition till the date of date of deposit, after deducting the interest for a period of 46 days, i.e, the period of delay in filing the appeal and as ordered by this Court on 20.10.2021 in C.M. Application No.1 of 2012, and a cost of Rs.5,000/-. The third respondent is directed to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. Sd/- **C.S. DIAS JUDGE** bpr