Kerala High Court
V.P. Anilkumar vs Babu Pathelil & Another 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. 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 1st respondent and insured with
the 2nd 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
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 1st respondent did not contest the
proceedings and was set ex parte. The 2nd
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 2nd
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
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 2nd respondent was
exonerated of its liability to pay compensation.
6. Aggrieved by the exoneration of the 2nd
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 2nd respondent.
8. The questions that arise for consideration in
this appeal are:
MACA NO. 1313 OF 2009
(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 1st
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
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 2nd
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
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
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
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 1st 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
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
