Kerala High Court
Abdul Salam vs Abdul Galeel Gadhafi on 7 July, 2021
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MACA No.2942 of 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 7TH DAY OF JULY 2021 / 16TH ASHADHA, 1943
MACA NO. 2942 OF 2009
AGAINST THE ORDER/JUDGMENT IN OPMV 559/2001 OF THE MOTOR
ACCIDENT CLAIMS TRIBUNAL ,KALPETTA, WAYANAD
APPELLANT/S:
ABDUL SALAM, AGED 34 YEARS,S/O.LATE MAMOOTTY,
ODAYOTH HOUSE, KOMMAYAD,, KELLOOR POST,
MANANTHAVAADY TALUK,, WAYANAD DISTRICT.
BY ADV SRI.N.J.ANTONY
RESPONDENT/S:
1 ABDUL GALEEL GADHAFI
S/O.ABDULLA, MINNANKODAN VEEDU, VELLAMUNDA POST,,
MANANTHAVADY, WAYANAD DISTRICT., (DRIVER OF MOTOR
CYCLE NO.KL-11N/5052 D.L.NO., 2496/98 D).
2 C.P.AYOOB AGE NOT KNOWN, S/O.BAVOOTTY
C.P.HOUSE, ENNAPPADAM, WEST KALLAI POST, (OWNER OF
MOTOR CYCLE NO.KL-11N/5052)
3 ORIENTAL INSURANCE CO. LTD.
KINGSWAY BUILDING, MAVOOR ROAD JUNCTION,, KOZHIKODE.
(INSURER OF MOTOR CYCLE NO.KL-11N/5052, POLICY
NO.2002-2363, 2002-2426. VALID FROM, 20.6.2001 TO
19.6.2002)
4 K.K.NAJEEB, AGE NOT KNOWN
S/O.MUHAMMED K.K., KOYAKUNNUMMEL VEEDU,, CHELAVOOR
POST, KOZHIKODE DISTRICT. (DRIVER OF JEEP
NO.KL10D/7907 DL NO.8264/96 D)
5 SHAJI T.V. AGE AND FATHERS NAME NOT
KNOWN, 'GURUKRIPA', THRILLINKERY POST, THALASSERY,
(OWNER OF JEEP NO.KL10D/7907)
BY ADV SRI.VPK.PANICKER
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME
UP FOR ADMISSION ON 07.07.2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
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MACA No.2942 of 2009
C.S DIAS,J.
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MACA No.2942 of 2009
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Dated this the 7th day of July, 2021.
JUDGMENT
The appellant was the petitioner in OP
(MV)No.559/2001 on the file of the Motor Accidents
Claims Tribunal, Kalpetta. The respondents in the appeal
were the respondents in the claim petition.
2. The facts in brief, in the claim petition, relevant
for determination of the appeal, are: on 24.6.2001 while
the appellant was riding pillion on a motor cycle bearing
registration No.KL-11/N 5052, which was ridden by the
first respondent along the Moozhickal Karanthoor road,
the motor cycle was hit by a jeep bearing registration
No.KL-10/D 7907(offending vehicle) driven by the fourth
respondent. The appellant sustained serious injuries and
was treated as an inpatient at Medical College Hospital,
Calicut from the date of accident till 4.7.2001, i.e., for a
MACA No.2942 of 2009
period of 11 days. The offending vehicle was owned by
the fifth respondent and insured with the third
respondent. The appellant was a coolie worker and
earning a monthly income of Rs.3,000/-. The second
respondent was the owner and the third respondent was
the insurer of the motor cycle. The appellant claimed a
total compensation of Rs.2,00,000/- from the respondents.
3. The respondents 1, 2, 4 and 5 did not contest the
proceedings and were set ex parte.
4. The third respondent - Insurance Company filed
a written statement denying the assertions that both the
vehicles have valid insurance policies. It was contended
that the Police had registered a case as against the first
respondent for causing the accident.
5. The appellant marked Exts A1 to A5 in evidence.
6. The Tribunal, after analysing the pleadings and
materials on record, by the impugned award allowed the
claim petition, in part, by permitting the appellant to
MACA No.2942 of 2009
realise an amount of Rs.4050/- with interest at the rate of
6% per annum from the respondents 2 and 5. The Tribunal
found that the driver of the motor cycle and driver of the
offending vehicle were negligent. It was also found that
both the vehicles did not posses valid insurance policies as
contended by the third respondent. Accordingly, the
Tribunal directed the owners of both the vehicles to pay
the compensation.
7. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioner is in appeal.
8. Heard Sri.N.J.Antony, the learned counsel
appearing for the appellant and Sri.V.P.K Panicker, the
learned counsel appearing for the third respondent -
Insurance Company.
9. The sole question that emerges for consideration
in this appeal is whether the quantum of compensation
awarded by the Tribunal is reasonable and just.
10. The Tribunal on the basis of Exts A1 FIR, A2
MACA No.2942 of 2009
scene mahazar and A3 AMVI report arrived at a
conclusion that the first respondent and the fourth
respondent were equally negligent in driving their
respective vehicles and causing the accident. Hence, it
was found that there was contributory negligence on the
part of both the drivers of the vehicles. It was found that
both the vehicles did not possess valid insurance policies.
Ergo, the Tribunal held that the owners of the vehicle, viz.,
respondents 2 and 5 were vicariously liable to indemnify
the liability of the respondents 1 and 4.
Notional Income
11. The appellant had claimed that he was a coolie
worker and earning a monthly income of Rs.3,000/-.
However, the Tribunal fixed the notional income of the
appellant at Rs.2,100/-.
12. The Hon'ble Supreme Court in
Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Company Limited [(2011) 13 SCC
MACA No.2942 of 2009
236] has fixed the notional income of a coolie worker in
the year 2004 at Rs.4,500/- per month.
13. Following the parameters in the aforecited
decision and considering the fact that the appellant was
26 years of age at the time of accident, I refix the notional
income of the appellant at Rs.3,000/- per month.
Loss of earnings
14. The Tribunal found that the appellant was
indisposed for a period of one month. Therefore, in view
of the refixation of the notional income of the appellant at
Rs.3,000/-, I hold that the appellant is entitled for
compensation under the head 'loss of earnings' at
Rs.3,000/-.
Pain and sufferings
15. The Tribunal as per Ext A4 wound certificate
found that the appellant had sustained a lacerated wound
over left patella and punctured wound over left patella.
He was hospitalised for a period of 11 days and was
MACA No.2942 of 2009
incapacitated for a period of one month.
16. Taking note of all these factors, I hold that the
appellant is entitled for enhancement of compensation
under the head 'pain and sufferings' by a further amount
of Rs.10,000/-.
Other heads of claim
17. With respect to the other heads of claim, I find
that the Tribunal has awarded reasonable and just
compensation.
18. On an overall re-appreciation of the pleadings,
materials on record and the law laid down by the Hon'ble
Supreme Court in the afore-cited decision, I am of the
definite opinion that the appellant/petitioner is entitled for
enhancement of compensation as modified above, i.e., an
amount of Rs.3,000/- under the head 'loss of earnings'
and an enhancement by Rs.10,000/- under the head 'pain
and sufferings'.
In the result, the appeal is allowed, in part, by
MACA No.2942 of 2009
enhancing the compensation by a further amount of
Rs.13,000/- (Rupees Thirteen Thousand only) with
interest on the enhanced compensation at the rate of 6%
per annum from the date of petition till the date of
realisation. The respondents 2 and 5 shall deposit the
enhanced compensation with interest as ordered above
before the Tribunal within a period of two moths from the
date of receipt of a copy of this judgment. The Tribunal
shall disburse the enhanced compensation to the
appellant/petitioner, in accordance with law.
Sks/7.7.2021 C.S.DIAS, JUDGE
