V.V. Charly v. Ashraf Ali & Others and The Reliance General Insurance Co. Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 26[TH] DAY OF AUGUST 2021 / 4TH BHADRA, 1943** **MACA NO. 1639 OF 2011** **AGAINST THE AWARD DATED 27.05.2011 IN OPMV 1614/2009 OF** **MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE,** ## **APPELLANT/PETITIONER IN OP(MV):** **V.V.CHARLY** **S/O VARUNNI, VADAKKE THALAKKAL HOUSE,, P.O KATTAKAMPAL,, THRISSUR DISTRICT.** **BY ADVS.** **SRI.AVM.SALAHUDIN SMT.P.Y.SHEHEERA** ## **RESPONDENTS/RESPONDENTS IN OP(MV):** - **1 ASHARAF ALI & OTHERS KALOTH, KONDOTTY, MALAPPURAM -676 101.** - **2 MUHAMMED ANSIL. V.V. S/O ABDUL NAZER, SABINA MANZIL,, P.O POKKUNNU, KOZHIKKODE-673612** - **3 THE RELIANCE GENERAL INSURANCE CO.LTD 2ND FLOOR, CITADEL ARCADE, OPPOSITE TAGORE CENTENARY HALL, R.C.ROAD, KOZHIKKODE. BY ADV SRI.K.B.RAMANAND** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 26.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No1639 of 2011 -:2:- Dated this the 26[th] day of August,2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.1614/2009 on the file of the Motor Accidents Claims Tribunal,Kozhikode. 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 claiming compensation on account of the injuries that he sustained on 28.10.2008. 3. The facts in brief, relevant for the determination of the appeal, are; on 28.10.2008 while the appellant was riding his motorcycle bearing registration No. KL-11E-2893 from Puthiyapalam to Puthiyara, when he reached the Puthiyara junction, a car bearing registration No. KL -10S- 666 (Car) driven by the 2[nd] respondent in a rash and negligent manner hit the motorcycle of the appellant. The M.A.C.A.No1639 of 2011 -:3:- appellant sustained serious injuries and was treated at the MIMS Hospital, Kozhikode from 28.10.2008 to 16.11.2008. Thereafter, he is continuing treatment as an outpatient. The car was owned by the 1[st] respondent and insured with the 3[rd] respondent. The appellant was a field worker and earning a monthly income of Rs.8500/-. The appellant sustained fractures of the left tibia, fibela middle 3[rd] and an open fracture on the 3[rd] and 4[th] metatarsal. Hence, the appellant claimed a total compensation of Rs.4,47,000/- from the respondents, which was limited to Rs. 2,00,000/-. 4. The respondent Nos.1 and 2 did not contest the proceedings and were set ex parte. 5. The third respondent filed a written statement refuting the allegations in the claim petitions, but admitted that the car had a valid insurance coverage. 6. The appellant produced and marked Exhibits M.A.C.A.No1639 of 2011 -:4:- A1 to A6 in evidence. The certificate of permanent disability issued as per the proceedings of the Medical Board, Medical College Hospital, Calicut, dated 3.3.2011, was marked as Exhibit C-1, wherein the appellant's permanent disability was assessed at 15%. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part by permitting the appellant to recover an amount of Rs.1,22,707/- with interest and cost from the 3[rd] respondent. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Sri. A.V.M. Salahuddeen the learned counsel appearing for the appellant/petitioner and Sri.K.B.Ramanand, the learned counsel appearing for the third respondent/insurer. 10. The sole question that arises for M.A.C.A.No1639 of 2011 -:5:- consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Liability and negligence** 11. Exhibit A5 charge sheet filed by the police proves that accident occurred solely due to the negligence of the 2[nd] respondent. Undisputedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the car. Therefore, the 3[rd] respondent is liable to indemnify the 1[st] respondent of his liability arising out of the accident. ## **Notional Income** 12. The appellant had claimed that he was a field worker by profession and earning a monthly income of Rs.8500/-. Nevertheless, the Tribunal fix his notional income at Rs.3000/- per month. 13. In **Ramachandrappa v. Manager, Royal** ## **Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court M.A.C.A.No1639 of 2011 -:6:- has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 14. Following the ratio in the afore cited decision and keeping in mind the fact that the accident occurred in the year 2008, I am of the firm opinion that the appellant's notional income can safely be fixed at Rs.6500/- per month. Hence, I fix the notional income of the appellant at Rs.6500/- per month. ## **Loss of earnings** 15 **.** It is proved as per Exhibit A6 that the appellant had partial ankylosis of the hip, left knee and ankle following the fracture of the tibia, fibela and 3[rd] and 4[th] metatarsal and he has permanent disability of 15%. Exhibit A2 wound certificate also corroborates with Exhibit C1 disability certificate. Therefore, it can be safely concluded that the appellant was indisposed for a period of five months. 16. In view of the re-fixation of the notional M.A.C.A.No1639 of 2011 ## -:7:- monthly income of the appellant at Rs.6500/- and the fact that he was indisposed for a period of five months, I refix his loss of earnings at Rs.32,500/instead of Rs.6000/- awarded by the Tribunal. ## **Loss due to disability** 17. The appellant was aged 34 years on the date of accident. In view of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another** [2010 (2) KLT 802 SC], the relevant multiplier adopted is ‘16’. 18. As the appellant has been certified to having a permanent disability of 15% and the relevant multiplier being ‘16’ and his notional monthly income fixed at Rs.6500/-, the appellant is entitled for compensation of Rs.1,87,200/- for loss due to disability, instead of Rs.86,400/- fixed by the Tribunal. ## **Pain and suferings** 19. The appellant had claimed an amount of M.A.C.A.No1639 of 2011 -:8:- Rs.30,000/- as compensation towards pain and sufferings. However, the Tribunal awarded only an amount of Rs.18,000/- under the said head. 20. Taking into account the grievous injuries sustained by the appellant, he was indisposed for a period of five months, he was treated as inpatient for a period of 22 days and he has suffered a permanent disability of 15%, I am of the firm opinion that the appellant is entitled for a further amount of Rs.7000/under the head pain and sufferings i.e. a total of Rs.25,000/- ## **Loss of amenities** 21. The appellant had claimed a total compensation of Rs.10,000/- towards loss of amenities. Nevertheless, the Tribunal awarded only an amount of Rs.3000/- under the said head. 22. Keeping in mind the factors mentioned under the head pain and sufferings, I hold that the appellant is also entitled for an enhancement of compensation M.A.C.A.No1639 of 2011 -:9:- under the above head by a further amount of Rs.7000/- i.e. total of Rs.10,000/- for compensation for ‘loss of amenities’. ## **By stander expenses** 23. It is on record that the appellant was treated as an inpatient for a period of 22 days, as evidenced by Exhibits A3 and A4 discharge summaries. However, the Tribunal fixed the period of hospitalisation only for a period of 11 days and awarded Rs.150/- per day, which according to me is on the lower side. 24. Hence, I re-fix the by-stander expenses at Rs.300/- per day for 22 days amounting to Rs.6600/i.e. an enhancement of Rs.4950/-. 25. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 26. On a comprehensive re-appreciation of the pleadings, materials on record and the law laid down M.A.C.A.No1639 of 2011 -:10:- in the afore-cited precedents, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modifed<br>and<br>recalculate<br>d by this<br>Court| |---|---|---|---| |1|Loss of earnings|6000|32500| |2|Transportation<br>expenses|1000|1000| |2|Damage<br>to<br>clothing|500|500| |3|By<br>stander<br>expenses|1650|6600| |4|Extra nourishment|1000|1000| ||Medical treatment|5157|5157| |5|Pain and suferings|18000|25000| |6|Loss of amenities|3000|10000| |7|Loss<br>due<br>to<br>disability|86400|187200| ||**Total**|**122707**|**268957**| ## 27. Even though the appellant had claimed a total amount of Rs.4,47,000/- as compensation but M.A.C.A.No1639 of 2011 -:11:- limited the claim to Rs.2,00,000/-for the purpose of payment of court fee, in the light of the law laid down by the Honourable Supreme Court in **Nagappa v. Gurudayal Singh [2003 (1) KLT 115 SC] and Rajesh v. Rajbir Singh [2013 (3) KLT 89 SC]** there is no legal impediment or restriction in awarding more compensation than what is claimed in the claim petition, as what is contemplated under the Motor Vehicles Act is just and reasonable compensation. Hence, I enhance the compensation more than what was claimed in the claim petition. In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.1,46,250/-. with interest at the rate of 7% per annum from the date of petition till the date of payment and a cost of Rs.3000/-. The third respondent shall deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of M.A.C.A.No1639 of 2011 -:12:- this judgment. The Tribunal shall disburse the enhanced compensation amount to the appellant, after deducting his liability, if any, towards the court fee and in accordance with law. Sd/- **C.S.DIAS,JUDGE** rmm