Kerala High Court

P.K.Suresh vs K.T.Ummer on 4 August, 2021

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
               THE HONOURABLE MR.JUSTICE C.S.DIAS
 WEDNESDAY, THE 4TH DAY OF AUGUST 2021 / 13TH SRAVANA, 1943
                      MACA NO. 966 OF 2009
    AGAINST THE AWARD IN OP(MV)NO. 147/2004 OF THE MOTOR
        ACCIDENT CLAIMS TRIBUNAL ,KALPETTA, WAYANAD
APPELLANT/PETITIONER:

         P.K.SURESH, S/O.RAMANKUTTY,
         SANTHA NIVAS,M.M.QUARTERS,,
         NEAR DWARAKA TOURIST HOME,,
         SULTHAN BATHERY,WAYANAD.

         BY ADV SRI.LALJI P.THOMAS
RESPONDENTS:

    1    K.T.UMMER, S/O.MOIDU,
         12/100,ROACKOOD ESTATE,
         NELLAKOTTAI P.O.,, GUDALUR TALUK,
         NILGIRI,TAMIL NADU.,
         (OWNER OF JEEP TN 43/6519)

   *2    M.SHIHABUDDIN, S/O.KUHAMMED (DELETED)
         12/100,ROACKOOD ESTATE,,
         P.O.NELLAKOTTAI,GUDALUR TALUK,,
         NILGIRI,(OWNER OF JEEP TN 43/6519)

         (THE SECOND RESPONDENT DELETED FROM THE PARTY
         ARRAY AS PER ORDER DATED 22.06.2021 IN I.A.NO.1 OF
         2021)

    3    MS.NEW INDIA INSURANCE CO.LTD.
         2ND FLOOR,MOOSA SAIT COMPLEX,,
         COMMERCIAL ROAD,OOTTY,,
         (POLICY NO.721000/31/03/01853)

         BY ADV SRI.PMM.NAJEEB KHAN


     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.966 of 2009

                                   2




                             C.S.DIAS,J
              ------------------------
                   MACA No. 966 of 2009
              ------------------------
            Dated this the 4th day of August, 2021

                             JUDGMENT

The appellant was the petitioner in OP (MV)

No.147 of 2004 on the file of the Motor Accidents

Claims Tribunal, Kalpetta. The respondents in the

appeal were the respondents before the Tribunal.

Pursuant to the order dated 22.06.2021 in I.A.No. 1

of 2021, the 2nd respondent has been deleted from the

party array. Hence, the parties are referred to as per

their status in the claim petition.

2. The brief facts in the claim petition, relevant

for the determination of the appeal, are: on

12.01.2004, while the petitioner was riding his

motorcycle bearing TN 43 / 8624 from Gudalur to

Ambalavayal, when he reached a place named MACA No.966 of 2009

Nellakottai, a Jeep bearing registration No.TN 43/

6519, driven by the 2nd respondent in a rash and

negligent manner came from the opposite direction

and hit the motorcycle of the appellant. The petitioner

sustained serious injuries and was treated as an in-

patient at the Assumption Hospital, Sulthan Batheri,

and thereafter, at the Medical College Hospital,

Kozhikode for a period of 30 days. The petitioner

sustained an open fracture cummunited right tibia,

and an abrasion on the right leg. The petitioner also

sustained permanent disability. The petitioner was a

Cable TV operator and earning a monthly income of

Rs.6,000/-. The Jeep was owned by the 1st respondent

and insured with the 3rd respondent. Hence, the

petitioner claimed a total compensation of

Rs.3,00,000/- from the respondents.

3. The respondents 1 and 2 did not contest the

proceedings and were set ex-parte. MACA No.966 of 2009

4. The 3rd respondent filed a written statement

admitting that the Jeep had a valid insurance

coverage. However, it was contended that the

accident occurred on account of the negligence of the

rider of the motorcycle. The claim petition was bad

for non-joinder of necessary parties.

5. The petitioner was examined as PW1 and

Exts.A1 to A11 were marked in evidence.

6. The respondents did not let in any evidence.

7. The Tribunal, after analysing the pleadings

and materials on record, allowed the claim petition, in

part, by permitting the petitioner to realise an

amount of Rs.56,020/- with interest at the rate of 6%

per annum from the date of petition till the date of

payment. The 3rd respondent was directed to pay the

compensation amount .

8. Dissatisfied with the quantum of compensation

awarded by the Tribunal, the petitioner/appellant is in MACA No.966 of 2009

appeal.

9. Heard the learned counsel for the

appellant/petitioner and the learned counsel

appearing for the 3rd respondent - insurer

10. The sole question that emerges for

consideration in the appeal is whether the quantum of

compensation awarded by the Tribunal is reasonable

and just?

11. Ext.A10 charge-sheet filed by the police

after investigation proves that the accident occurred

solely on account of the negligence of the 2nd

respondent, who drove the Jeep in a negligent

manner. Undisputedly, the 1st respondent was the

owner and the 3rd respondent was the insurer of the

Jeep. Therefore, it is the 3rd respondent who is to

indemnify the 1st respondent of his liability.

12. The petitioner had claimed that he was a

Cable TV operator by profession and earning a MACA No.966 of 2009

monthly income of Rs.6,000/-. The Tribunal fixed the

notional income of the appellant at Rs.2,100/- per

month.

13. In Ramachandrappa v. Manager, Royal

Sundaram Alliance Insurance Company Limited

[(2011) 13 SCC 236], the Hon'ble Supreme Court has

fixed the notional income of a Coolie worker in the

year 2004, at Rs.4,500/- per month.

Notional income

14. Following the ratio in the afore-cited decision

and taking into account the fact that the accident

occurred in the year 2004, I re-fix the notional

income of the petitioner at Rs.4,500/- per month.

Loss of earnings

15. It is on record that the petitioner was

indisposed for a period of three months due to the

fracture that he sustained.

16. In view of the re-fixation of the notional MACA No.966 of 2009

income of the petitioner at Rs.4,500/-, I re-fix the

compensation for 'loss of earnings' at Rs.13,500/,

instead of Rs.5,000/- awarded by the Tribunal.

Multiplier

17. As the petitioner was aged 32 years at the

time of accident, the relevant multiplier is '16' as laid

down in Sarala Varma and others v. Delhi

Transport Corporation and others [(2010) 2 KLT

802].

Loss due to disability

18. In view of the afore-stated factors namely,

the fixation of the notional income of the petitioner at

Rs.4,500/- per month, the multiplier at '16' and the

disability at 5%, I re-fix the compensation for 'loss

due to disability' at Rs.43,200/- instead of Rs.21,420/-

awarded by the Tribunal.

Loss of amenities

19. The petitioner had claimed an amount of MACA No.966 of 2009

Rs.5,000/- towards 'loss of amenities'. The Tribunal

did not award any amount under the said head.

20. Taking into account the fact that the

petitioner was indisposed for a period of three

months, he was hospitalized for a period of 30 days

and that he had suffered fractured on his leg and that

he had suffered a permanent disability at 5%, I am of

opinion that the petitioner is entitled for

compensation for 'loss of amenities' at Rs.5,000/-.

Other heads of claim

21. With respect to the other heads of

compensation, I find that the Tribunal has awarded

reasonable and just compensation.

22. On an overall re-appreciation of the

pleadings, materials on record and the law referred to

in the afore-cited decision, I am of the definite opinion

that the appellant/petitioner is entitled for

enhancement of compensation as modified and MACA No.966 of 2009

recalculated above and given in the table below for

easy reference.

Sl.   Heads of claim                             Amount awarded by     Amounts
No                                                the Tribunal (in   modified and
                                                      rupees)        recalculated
                                                                     by this Court
1     Loss of earning                                  5000            13,500/-

2     Transport                                        500/-            500/-

3     Damages to clothing                              250/-            250/-

4     Bye-stander expenses                             500/-            500/-

5     Expenses for extra nourishment                   500/-            500/-

6     Medical expenses                                22,850/-         22,850/-

7     Compensation      for    pain    and            5,000/-           5,000/-
      sufferings
8     Compensation      for     loss    of              nil             5,000/-
      amenities
9     Loss due to disability                          21,420/-         43,200/-

                                                      56020/-          91300/-

In the result, the appeal is allowed, in part, by

enhancing the compensation by a further amount of

Rs.35,280/- with interest at the rate of 6% per annum

on the enhanced compensation, from the date of

petition till the date of deposit, after deducting 155

days, i.e. the period of delay in preferring the appeal

and as ordered by this Court on 22.06.2021 in MACA No.966 of 2009

C.M.Appl.No.1144 of 2009, and proportionate costs.

The 3rd respondent is ordered to deposit the enhanced

compensation awarded in the appeal before the

Tribunal with interest and proportionate costs within

a period of sixty days from the date of receipt of a