V.P. Anilkumar v. Babu Pathelil and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 4[TH] DAY OF AUGUST 2021 / 13TH SRAVANA, 1943** ## **MACA NO. 1313 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1517/2002 OF ADDITIONAL DISTRICT** **COURT & ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,THALASSERY, KANNUR APPELLANT/PETITIONER:** **V.P. ANILKUMAR,S/O.NANU, AGED 32 YEARS, SCHEDULED CASTE PROMOTER, RESIDING AT VALIYAPARAMBATH, PANOOR AMSOM, ELANGODE DESOM, P.O.ELANGODE, PANOOR. BY ADV SRI.K.P.HAREENDRAN** ## **RESPONDENTS/RESPONDENTS NOS.1&2:** **1 BABU PATHELIL, S/O.JOHN, AGED 38 YEARS, PATHELIL, PAYAM AMSOM,, MUNDAYAMPARAMBA, P.O.MUNDAYAMPARAMBA, (OWNER AND DRIVER OF MAHINDRA GOODS JEEP, KL.13/B 8521). 2 THE NEW INDIA ASSURANCE CO. LTD. BRANCH OFFICE, ARTISTO COMPLEX, MAIN ROAD, MAHE-673 310 (INSURER). BY ADV SRI.N.S.MOHAMMED USMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 1313 OF 2009** **2** ## **JUDGMENT** The appellant was the petitioner in O.P.(MV) No.1517/2002 on the file of the Additional Motor Accidents Claims Tribunal, Thalassery. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief, relevant for the determination of the appeal, are: on 03.03.2002 while the appellant was traveling in a goods Jeep bearing registration No.KL-13B/8521, due to the sudden brake applied by the driver of the jeep, the appellant fell down and sustained serious injuries. The jeep was owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. The appellant sustained a compound fracture on the left elbow and a fracture to the left hand radious. He was treated as an inpatient at the Nirmala Hospital from 03.03.2002 to 08.03.2002. The appellant **MACA NO. 1313 OF 2009** **3** was working as a Scheduled Caste Promoter and was also an agriculturist by profession. He was earning a monthly income of Rs.3,000/-. The appellant, hence, claimed a total compensation of Rs.1,05,000/- from the respondents. 3. The 1[st] respondent did not contest the proceedings and was set ex parte. The 2[nd] respondent filed a written statement contending that the appellant was a gratuitous passenger, in the goods vehicle. Therefore, as per the terms of the insurance policy, the 2[nd] respondent was not liable to pay any amount as compensation in view of the contractual stipulation in the insurance policy and as provided under Section 147 of the Motor Vehicles Act, 1988. 4. The appellant examined himself as PW1 and marked Exts.A1 to A8 in evidence. The 2[nd] respondent produced Exts.B1-copy of the **MACA NO. 1313 OF 2009** **4** insurance policy, and marked it in evidence. 5. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part by permitting the appellant to realise an amount of Rs.30,000/- from the 1[st] respondent with interest @ 7% per annum from the date of petition till the date of deposit and proportionate cost. The 2[nd] respondent was exonerated of its liability to pay compensation. 6. Aggrieved by the exoneration of the 2[nd] respondent and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 7. Heard Sri.K.P.Hareendran, the learned counsel appearing for the appellant and Sri.N.S.Mohammed Usman, the learned counsel appearing for the 2[nd] respondent. 8. The questions that arise for consideration in this appeal are: **MACA NO. 1313 OF 2009** **5** - (i) Whether the exoneration of the 2[nd] respondent of its liability to indemnify the 1[st] respondent is justifiable? - (ii) Whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Question No.(i)** 9. Ext.A1 FIR and Ext.A2 Scene Mahazar prepared by the Aaralam Police in Crime No.71/2002 prove that the accident occurred due to the negligent driving of the jeep by the 1[st] respondent. However, Ext.B1 policy is an 'Act Policy'. There is no material on record to substantiate that the appellant was the owner of the goods or the authorised representative of the owner of the goods that was carried in the jeep. In view of the mandate under Section 147 of the Motor Vehicles Act and the law laid down by the Honourable Supreme Court in **New** : **India Assurance Company Ltd. v. Asharani** [2003 (1) KLT 165 (SC)], which has been **MACA NO. 1313 OF 2009** **6** recently reiterated by this Court in **New India** : **Assurance Company Ltd. v. Daizy Paul** [ 2021 (2) KHC 449], I do not find any error or illegality in the finding arrived at by the Tribunal. Since the appellant was a gratuitous passenger in a goods vehicle, the 2[nd] respondent was not liable to indemnify the 1[st] respondent. Hence, I answer question No.(i) against the appellant. ## **Question No.(ii).** 10. The appellant had claimed that he was a Scheduled Caste Promoter and was also an agriculturist by profession, earning a monthly income of Rs.3,000/-. The Tribunal, fixed the notional income of the appellant at Rs.2,000/per month. 11. In **Ramachandrappa v. Manager, Royal** **Sundaram Alliance Insruance Company** **Ltd.** [(2011) 13 SCC 236], the Honourable Supreme court had fixed the notional income of **MACA NO. 1313 OF 2009** **7** a coolie worker in the year 2004 at Rs.4,500/per month. ## **Notional Income** : 12. Following the ratio in the afore-cited decision and taking note of the fact that the accident occurred in the year 2002, I re-fix the notional monthly income of the appellant at 'Rs.3,000/-' per month. ## **Loss of earnings** 13. It is on record that the appellant had a compound fracture on the left elbow and a fracture to the left hand radious. Therefore, necessarily his hand was put in a cast. Hence, he was indisposed for a period of six months. He was also treated as an inpatient for five days in the Nirmala Hospital. In such circumstances, I hold that the appellant was indisposed for a period of three months. 14. In view of the re-fixation of the notional income of the appellant at Rs.3,000/- per month, **MACA NO. 1313 OF 2009** **8** I hold that the appellant is entitled for loss of earnings at 'Rs.12,000/-' instead of Rs.2,000/awarded by the Tribunal. ## **Loss of amenities** 15. Even though the appellant had claimed an amount of Rs.32,000/- as loss of amenities, the Tribunal did not award any amount under the said head. Taking into account the injuries that the appellant sustained, that he was indisposed of for a period of six months and that he was treated as an inpatient for a period of five days, I hold that the appellant is entitled for compensation under the head loss of amenities at 'Rs.9,000/-'. 16. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 17. On an overall re-appreciation of the pleadings and materials on record and the law **MACA NO. 1313 OF 2009** **9** laid down in the aforesaid decision, I am of the definite opinion that the appellant/petitioner is entitled for compensation as modified and recalculated above i.e., an enhancement by a further amount of 'Rs.16,000/-' i.e., 'Rs.7,000/-' under the head loss of earnings and 'Rs.9,000/-' under the head loss of amenities. 18. In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of 'Rs.16,000/-' with interest @ 7% per annum from the date of petition till the date of deposit, after deducting the period of 66 days i.e., the period of delay in preferring the appeal and as ordered by this Court on 01.07.2021 in C.M.Appln.No.1489 of 2009, and proportionate cost. The 1[st] respondent is ordered to deposit the enhanced compensation with interest and proportionate cost, before the Tribunal within a period of 60 days from the date of receipt of a copy of this judgment. **MACA NO. 1313 OF 2009** **10** 19. On such deposit being made, the Tribunal shall disburse the enhanced compensation to the appellant in accordance with law. Sd/- **C.S.DIAS, JUDGE** AMV/05/08/2021