Kerala High Court
Mohammed.P vs Managing Partner on 8 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 8TH DAY OF JULY 2021 / 17TH ASHADHA, 1943
MACA NO. 1420 OF 2009
AGAINST THE ORDER/JUDGMENT DATED 10.12.2008 IN OP(MV) 624/2003 OF II
ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT/CLAIMANT:
MOHAMMED.P., 45 YEARS,
S/O.MARAKKARUTTY, POOVAMPURATH HOUSE,, KARANTHUR P.O.,
KUNNAMANGALAM, KOZHIKODE.
BY ADV SRI.K.M.FIROZ
RESPONDENTS/RESPONDENTS:
1 MANAGING PARTNER,
M/S.AGIN ROAD WAYS, NO.37/5,, MOOLAKKADAVU, PANDAKKAL,
MAHE.
2 C.K.USSAIN, S/O.POKKER
NO.62/02, KARULAM POYIL, KODUVALLY AMSOM DESOM,
VENNAKKODE, KODUVALLY P.O.
3 THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO.LTD., WHITE LINES BUILDING,
KALLAI ROAD, KOZHIKODE.
BY ADVS.
SRI.PMM.NAJEEB KHAN
SRI.RAJESH THOMAS
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 08.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NO. 1420 OF 2009 2
JUDGMENT
The appellant was the petitioner in OP(MV) No.624
of 2003 on the file of the II Additional Motor Accidents
Claims Tribunal, Kozhikode. The respondents in the
appeal were the respondents in the claim petition.
2. The concise facts in the claim petition, relevant
for the determination of the appeal are: on 9.11.2002
while the appellant was walking along the
Kummangalam - Kozhikode road, a lorry bearing Reg.
No.PY-03-2334 driven by the 2nd respondent in a rash
and negligent manner ran over the right leg of the
appellant. The appellant sustained serious injuries and
was treated as an inpatient from 9.11.2002 to 17.1.2003,
i.e., for a period of 69 days at the Medical College
Hospital, Kozhikode. The 1st respondent was the owner
of the lorry and the 3rd respondent was the insurer of
the lorry. The appellant was a head load worker by
profession and earning a monthly income of Rs.10,000/-.
The appellant claimed a total compensation of
Rs.3,24,850/-, which was limited to Rs.3,00,000/-.
3. The respondents 1 and 2 did not contest the
proceedings and were set ex parte.
4. The 3rd respondent filed a written statement
denying the insurance coverage of the lorry at the time
of accident. Therefore, it was contended that the 3rd
respondent was not liable to pay any amount as
compensation.
5. Nevertheless, the 3rd respondent subsequently
filed an additional written statement admitting the
insurance coverage of the lorry.
6. The appellant got himself examined as PW1 and
marked Exts.A1 to A6 in evidence.
7. The Tribunal, after evaluating the pleadings
and materials on record, by the impugned award allowed
the claim petition in part, by permitting the appellant to
recover an amount of Rs.1,06,500/- with interest @ 7 %
per annum from the date of filing of the claim petition till
the date of payment and Rs.400/- as costs from the 3rd
respondent.
8. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioner is in appeal.
9. Heard, the learned counsel appearing for the
appellant/petitioner and the learned counsel appearing
for the 3rd respondent/ Insurance Company.
10. The sole question that arises for consideration
in this appeal is whether the quantum of compensation
awarded by the Tribunal is reasonable and just.
11. A constitution Bench of the Hon'ble Supreme
Court in National Insurance Company Ltd. v. Pranay
Sethi [(2017) 16 SCC 680), has held that Section 168
of the Motor Vehicles Act, 1988, deals with the concept
of 'just compensation' and the same has to be determined
on the foundation of fairness, reasonableness and
equitability on acceptable legal standards. The
conception of 'just compensation' has to be viewed
through the prism of fairness, reasonableness and non-
violation of the principle of equitability.
12. Ext.A1 FIR, Ext.A2 scene mahazar and Ext.A3
wound certificate proves that the accident occurred on
account of the negligence on the part of the 2nd
respondent, who drew the offending vehicle in a rash and
negligent manner. Undisputedly, the 3rd respondent
was the insurer of the vehicle and the 1st respondent
was the owner. Therefore, the 3rd respondent is liable
to indemnify the liability of the 1st respondent to pay the
compensation on account of the accident.
Notional Income
13. The appellant had claimed to be a head load
worker by profession and earning an amount of
Rs.10,000/- per month. The Tribunal, for want of
materials, fixed the notional income of the appellant is
Rs.2,500/- per month.
14. The Hon'ble Supreme Court in
Ramachandrappa vs. Manager, Royal Sundaram
Alliance Insurance Company Ltd., (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.
15. Following the parameters laid down in the
aforesaid decision, I refix the notional income of the
appellant at Rs.4,000/- per month, considering the fact
that the accident occurred on 9.11.2002.
Loss of earnings
16. Undisputedly, the appellant was hospitalised for
a period of 69 days. He was advised complete bed rest
for a period of six months. Therefore, he was indisposed
for the said period. In view of the refixation of the
notional income of the appellant at Rs.4,000/-, I hold that
he is entitled for 'loss of earnings' at Rs.24,000/-, i.e, an
enhancement of Rs.9,000/-.
Disability
17. Even though the appellant had not produced
any documents to prove his disability, the Tribunal
based on the available materials and after seeing the
appellant, who was examined as PW1, fixed the disability
of the appellant at 10%. In view of the assessment made
by the Tribunal, after seeing the appellant, I confirm the
finding of the Tribunal with regard to fixation of the
disability of the appellant at 10%.
Multiplier
18. It is seen that the Tribunal has adopted the
multiplier at '16'. In view of the law laid down in Sarala
Verma v. Delhi Transport Corporation (2009) 6 SCC
121) and in Pranay Sethi (supra), the correct multiplier
is '15'. Thus, I fix the disability at '15'.
Loss due to disability
19. In view of the fixation of the notional income of
the appellant at Rs.4,000/-, the multiplier at 15% and the
disability at 10%, I refix the compensation for 'loss due to
disability' at Rs.72,000/-, instead of Rs.48,000/-, i.e, an
enhancement of Rs.33,000/-.
Loss of amenities
20. The appellant had claimed an amount of
Rs.75,000/- under the head 'loss of earning
power/amenities'. The Tribunal awarded only an amount
of Rs.5.000/-, which according to me is on the lower side.
Taking into consideration the fact that the appellant
sustained serious injuries on his leg and was hospitalised
for a period of 69 days and incapacitated for 6 months, I
refix the compensation under the head 'loss of amenities'
at Rs.15,000/-, i.e an enhancement of Rs.10,000/-.
Pain and sufferings
21. The appellant had claimed an amount of
Rs.50,000/- towards pain and sufferings. The Tribunal
awarded only an amount of Rs.15,000/-. Again taking
into account the above mentioned factors, especially the
injury sustained by the appellant and that he was
incapacitated for a period of six months, I enhance the
compensation by a further amount of Rs.7,000/-.
Bystander expenses
22. It is on record that the appellant was
hospitalized for a period of 69 days at the Medical
College Hospital, Kozhikode. The Tribunal has awarded
only an amount of Rs.7,000/-, which is on the lower side.
Taking into consideration the period of hospitalisation, I
fix the 'bystander expenses' at Rs.250/- per day for a
period of 69 days, i.e., a total amount of Rs.17,250/-,
namely, an enhancement of Rs.10,250/-.
23. With respect to the other heads of
compensation, I find that the Tribunal has awarded
reasonable and just compensation.
24. On an over all re-appreciation of the pleadings
and materials on record, the law laid down in the
aforecited decisions, 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.
Head of claim Amount Amounts
Awarded by modified and
the Tribunal recalculated
(in Rs.) by this Court
Transportation 500/- 500/-
expenses
Extra nourishment 1,500/- 1,500/-
Bystander 7,000/- 17,250/-
expenses
Damages to 500/- 500/-
clothing
Pain and sufferings 15,000/- 22,000/-
Loss of earnings 15,000/- 24,000/-
Medical Expenses 14,000/- 14,000/-
Loss of amenities 5,000/- 15,000/-
Loss due to 48,000/- 72,000/-
dissability
Total 1,06,500/- 1,66,750/-
In the result, the appeal is allowed in part, by
enhancing the compensation by a further amount of
Rs.60,250/- with interest at the rate of Rs.7% per annum
from the date of petition till the date of deposit after
deducting a period of 43 days, i.e., the period of delay in
filing the appeal, as ordered by this Court in order dated
30.3.2021 in C.M.Appln.No.1 of 2009, and proportionate
costs. The 3rd respondent shall deposit the enhanced
compensation with interest and costs before the Tribunal
within a period of two months from the date of receipt of
a certified copy of this judgment. The Tribunal shall
disburse the enhanced compensation to the
appellant/petitioner in accordance with law.
Sd/-
C.S.DIAS,
JUDGE
pm
