V. Shahul Hameed v. K. Ganesan and Others and United India Insurance Co. Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2021-11-15
Court Decision / Holding: The appeal is allowed in part. The court enhances the compensation by Rs. 31,000, comprising Rs. 21,700 for loss of earnings, Rs. 2,300 for by-stander expenses, and Rs. 7,000 for loss of amenities, with interest at 7.5% per annum from the petition date to deposit, and costs of Rs. 5,000. The 3rd respondent/insurer is directed to deposit the enhanced amount with interest and costs before the Tribunal within sixty days from receipt of a certified copy of the judgment; upon deposit, the Tribunal shall disburse the enhanced amount to the appellant in accordance with law.
Final Disposition: Appeal allowed in part; enhanced compensation with directions for deposit and disbursement.

Parties to the Case

Appellants / Petitioners

V. Shahul Hameed

Respondents

K. Ganesan and Others
S. Anand Kumar
United India Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. A.R. Gangadas

Counsels for Respondents

• P.K. Manojkumar

Case Synopsis & Summary

The appeal arises from a Motor Accidents Claims Tribunal Palakkad award under Section 166 of the Motor Vehicles Act, 1988, in which V. Shahul Hameed claimed compensation for injuries from a road accident on 25 May 2002 involving his motorcycle and another ridden by the 2nd respondent. The Tribunal, consolidating two claims, allowed the petition against the insurer for Rs. 70,396 with 7.5% interest from the petition date and Rs. 400 as costs, while the first and second respondents were ex parte. The appellant’s evidence showed serious injuries, including a comminuted fracture of both bones of the right leg, with inpatient treatment for 23 days; he claimed Rs. 5,10,000, capped at Rs. 3,00,000. The Tribunal fixed a notional monthly income of Rs. 2,300, though the appellant asserted Rs. 4,000 as owner-driver of a tractor. The insurer (3rd respondent) disputed the appellant’s age, income and occupation and pleaded that the accident arose from the appellant’s negligence. In exercising appellate jurisdiction, the High Court re-examined income, relying on Chameli Devi and Chanda (Supreme Court) to fix Rs. 4,000 as notional income for 2002, and computed enhanced compensation. The court allowed the appeal in part, increasing the total by Rs. 31,000, with 7.5% interest and costs, directing deposit by the insurer before the Tribunal for disbursement to the claimant.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in fixing the notional monthly income at Rs. 2,300 and under-compensated for heads such as loss of earnings, by-stander expenses and loss of amenities. Relying on Chameli Devi and Chanda v. Mukesh Kumar to support a higher notional income of Rs. 4,000 for the year 2002, he asserts that the evidence warrants enhanced compensation and urges the court to adopt higher figures for the relevant heads of loss and to direct an overall increase in the award.

Contentions of Respondents

The insurer contends liability and quantum are subject to policy terms and the insured’s liability; the 1st and 2nd respondents were ex parte, while the 3rd respondent disputed the appellant’s age, income and occupation and contested the amount awarded; liability to indemnify remains at issue, and the quantum should reflect the contested facts and statutory framework.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Chameli Devi and others v. Jivrail Mian and others	2019 KHC 5352	Positive	Cited to justify notional income fixation and used as a yardstick to support Rs. 4000/month in 2002.
Chanda @ Chandra v. Mukesh Kumar	LL 2021 SC 531	Positive	Noted as Supreme Court guidance for fixing driver’s notional income in the relevant year; used to justify the higher notional income.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 15[TH] DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943 MACA NO. 499 OF 2009** ## **AGAINST THE AWARD DATED 08.07.2008 IN OPMV 737/2003 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT/PETITIONER:** V.SHAHUL HAMEED, S/O VELLAPPARAWTHER MUTHAMTHODE, KUTTIPPALLAM P.O., CHITTUR TALUK, PALAKKAD DISTRICT BY ADV SRI.A.R.GANGADAS ## **RESPONDENTS/RESPONDENTS:** - 1 K.GANESAN AND OTHERS,S/O KRISHNAMURTHY 17/1, POLICE QUARTERS, POLLACHI, COIAMBATORE DISTRICT. - 2 S.ANAND KUMAR, S/O.SUBRAMANIAN 132, KOVAI ROAD, BC BANGUVALAKAM,, POLLACHI, COIMBATORE DISTRICT - 3 UNITED INDIA INSURANCE CO.LTD. POLLACHI, COIMBATORE DIST. BY ADV P.K.MANOJKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 499 OF 2009 2** ## **Dated this the 15[th] day of November, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) 737/2003 on the file of the Motor Accidents Claims Tribunal, Palakkad. 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 25.05.2002. It was his case that, on the aforesaid date, while he was riding his motorcycle bearing registration No. TN38 M 8637 from Udumali – Chittur via Pollachi, another motorcycle bearing registration No. TN 41 H 8464 (offending motorcycle) ridden by the 2[nd] respondent in a negligent manner, hit the motorcycle of the appellant. The appellant and the pillion rider fell on the road and sustained injuries. The appellant was treated at the Sindhia Ortho Clinic, Pollachi for the period **MACA NO. 499 OF 2009 3** from 25.02.2005 to 15.03.2002 i.e. for a period of 23 days. The offending motorcycle was owned by the 1[st] respondent and insured with the 3[rd] respondent. The appellant sustained serious injuries including comminuted fracture of both bones of his right leg. He was a driver cum owner of a tractor and was earning a monthly income of Rs.4000/-. Hence, the appellant claimed compensation of Rs.5,10,000/- from the respondents, which was limited to Rs.3,00,000/-. 3. Another injured in the same accident also filed O.P. (M.V) No.738/2003 before the same Tribunal. 4. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 5. The 3[rd] respondent had filed written statements in both the claim petitions, inter alia, refuting the allegations in the claim petitions. It was contended that the accident occurred due to the negligence of the appellant. The 3[rd] respondent also disputed the age, ## **MACA NO. 499 OF 2009 4** income and occupation of the appellant. 6. The Tribunal consolidated and jointly tried the two claim petitions. 7. The petitioners in the two claim petitions produced and marked Exhibits A1 to A20 in evidence. The respondents did not let in any evidence. 8. The Tribunal, by its common award, allowed the captioned claim petition, by permitting the appellant to realise from the 3[rd] respondent an amount of Rs.70,396/with interest at the rate of 7.5 % per annum from the date of petition till the date of realisation and a cost of Rs.400/-. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; A. R. Gangadas, the learned counsel appearing for the appellant/petitioner and Sri.P.K. Manoj Kumar, the learned counsel appearing for the third respondent/insurer. ## **MACA NO. 499 OF 2009 5** 11. The question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 12. Exhibit A15 charge sheet filed by the police substantiates that the accident occurred due to the negligence of the 2[nd] respondent/rider of the offending motorcycle. Admittedly, the first respondent was the owner and the 3[rd] respondent was the insurer of the offending motorcycle. The 3[rd] respondent has not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 13. The appellant had claimed that he was a owner cum driver of a tractor and he was earning a monthly income of Rs.4000/- However, the Tribunal, for the want **MACA NO. 499 OF 2009 6** of material, fixed the notional monthly income of the appellant at Rs.2300/- 14. In **Chameli Devi and others v. Jivrail Mian and others** [2019 KHC 5352], the Honourable Supreme Court has fixed the notional income of a carpenter in the year 2001 at Rs.5000/- per month. Similarly, in **Chandra** **@ Chanda v. Mukesh Kumar** [LL 2021 SC 531], the Honourable Supreme Court has fixed the notional monthly income of a driver in year 2004 at Rs.6000/-. 15. Following the yardsticks in the afore-cited decisions and considering the fact that the accident occurred in the year 2002, I re-fix the notional monthly income of the appellant at Rs.4000/- as claimed in the claim petition. ## **Loss of earnings** 16. It is proved by Exhibit A2 wound certificate and A6 and A7 discharge cards that the appellant had sustained comminuted fracture of both bones of his right ## **MACA NO. 499 OF 2009 7** leg and also a fracture of MPX right F3. Being a driver by profession, I hold that the appellant was indisposed for a period of six months. 17. In view of the re-fixation of the notional monthly income of the appellant at Rs.4000/-, I award the appellant an amount of Rs.24,000/- towards ‘loss of earnings’ i.e. an enhancement by an amount of Rs.21,700/- under the said head. ## **- By stander expenses** 18. The appellant has established that he was treated as inpatient for a period of 23 days as reflected from Exhibits A6 and A7 discharge cards. The Tribunal has awarded only an amount of Rs.3,450/- towards by-stander expenses, which according to me is on the lower side. 19. Taking into account the fact that the appellant was treated as inpatient for a period of 23 days, I award him an amount of Rs.250/- per day, which amount to Rs.5750/-, i.e., an enhancement by an amount of ## **MACA NO. 499 OF 2009 8** Rs.2300/-. ## **Loss of amenities** 20. The appellant had claimed an amount of Rs.10,000/- towards ‘loss of amenities’. However, the Tribunal has awarded only an amount of Rs.3000/- under the said head. 21. Keeping in mind the fact that the appellant was treated as inpatient for a period of 23 days and he was indisposed for a period of six months, I award him a further amount of Rs.7000/- under the said head. 22. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.31,000 **/-** (i.e. Rs.21,700/- towards loss of earnings, Rs.2,300/- by-stander expenses and Rs.7000/- towards loss of amenities)with interest at the rate of 7.5% per **MACA NO. 499 OF 2009 9** annum, from the date of petition till the date of deposit, and a cost of Rs.5000/-. 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 enhanced compensation amount being deposited, the Tribunal shall disburse the same to the appellant in accordance with law. Sd/- **C.S.DIAS, JUDGE** rmm15/11/2021