Kerala High Court
Saibunisa vs Muhammed Shafi & 5 Others on 13 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943
MACA NO. 128 OF 2009
AGAINST THE AWARD IN OP(MV)NO. 2424/2004 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL ,KOTTAYAM
APPELLANT/PETITIONER:
SAIBUNISA, KANJIRANKALAYIL,
OMANAMUKKU BHAGOM,
PADINJATTUM BHAGOM,
ATHIRAMPUZHA VILLAGE,,
KOTTAYAM.
BY ADVS.
SRI.PHILIP T.VARGHESE
SRI.THOMAS T.VARGHESE
RESPONDENTS:
1 MUHAMMED SHAFI,KANJIRANKALAYIL,
OMANAMUKU BHAGOM,
ATHIRAMPUZHA.
2 THE NEW INDIA SSURANCE COMPANY LTD.
KOTTAYAM.
*3 MUHAMMED RAFI, KANJIRAMKALAYIL
OMANAMUKU BHAGOM,
ATHIRAMPUZHA. (DELETED)
*4 MUHAMMED HASIM, KANJIRAMKALAYIL
OMANAMUKU BHAGOM,
ATHIRAMPUZHA KOTTAYAM.(DELETED)
(THE RESPONDENTS 3 AND 4 ARE DELETED FROM THE PARTY
ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER
DATED 08.04.2021 IN IA NO.1 OF 2021)
5 HAYARUNISA, KANJIRAMKALAYIL
OMANAMUKU BHAGOM,
ATHIRAMPUZHA,
KOTTAYAM.
MACA.No.218 of 2009
2
6 MUHAMMED HAKKIM, KANJIRAMKALAYIL
OMANAMUKU BHAGOM,
ATHIRAMPUZHA,
KOTTAYAM.
BY ADV SRI.VPK.PANICKER
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 13.07.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA.No.218 of 2009
3
C.S.DIAS,J
------------------------
MACA No.128 of 2009
------------------------
Dated this the 13th day of July, 2021
JUDGMENT
The appellant was the petitioner in
OP(MV)No.2424 of 2004 on the file of the Motor
Accidents Claims Tribunal, Kottayam. The respondents
in the appeal were the respondents before the
Tribunal. Pursuant to the orders of this Court on
08.04.2021 in IA No.1 of 2021, the respondents 3 and
4 were deleted from the party array. The parties are,
for the sake of convenience, wherever the context so
requires are referred to as per their status in the claim
petition,
2. The facts in brief in the claim petition,
relevant for the determination of the appeal, are : on
27.01.2004 while the petitioner was a riding pillion on
MACA.No.218 of 2009
motorcycle bearing registration No.KL 5L/471 driven
by the 1st respondent, when the vehicle reached
Kavalabhagam, the 1st respondent lost control of the
vehicle, which turned turtle. The petitioner sustained
serious injuries and was treated as an in-patient at
Carithas Hospital, Kottayam from 27.01.2004 to
04.02.2004. She sustained a Type 1 compound
fracture both knees (right) leg lower 1/3 region. The
petitioner was a Tailor by profession and was also
doing poultry business. She was earning a monthly
income of Rs.4,000/-. The accident occurred on
account of the negligence on the part of the 1 st
respondent. The 2nd respondent was the owner of the
vehicle and the 3rd respondent was the insurer. As the
2nd respondent died, the supplemental respondents 4
to 7 were impleaded as his legal representatives.
3. The respondents 1 and 5 did not contest the
MACA.No.218 of 2009
proceedings and were set ex-parte.
4. The 3rd respondent filed a written statement
disputing the age, occupation and income of the
petitioner. It was contended that the rider of the
motorcycle did not hold a valid insurance policy and
hence there was a violation of the policy conditions.
Therefore, the 3rd respondent prayed that the petition
be dismissed.
5. The respondents 4, 6 and 7 filed a joint
written statement stating that the 1 st respondent drove
the vehicle with due care and caution. The accident
did not occur due to the negligence on the part of the
1st respondent. The 1st respondent had a valid driving
license bearing No.4056/1996. Hence, the 3rd
respondent is liable to indemnify the liability of the
owner of the vehicle.
6. The petitioner marked Exts.A1 to A10 in
MACA.No.218 of 2009
evidence. The 3rd respondent marked Ext.B1 and B2 in
evidence.
7. The Tribunal, after analysing the pleadings
and materials on record, allowed the claim petition, in
part, by permitting the petitioner to recover an
amount from the 3rd respondent of Rs.45,165/- with
interest at the rate of 7.5% per annum from the date of
petition till the date of realisation along with cost of
Rs.2,500/-.
8. Dissatisfied with the quantum of
compensation awarded by the Tribunal, the
petitioner/appellant is in appeal.
9. Heard the learned Counsel appearing for the
appellant/petitioner and the learned Counsel
appearing for the 2nd respondent - insurance company.
10. The sole question that emerges for
consideration in this appeal is whether the quantum of
MACA.No.218 of 2009
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.A3 charge-sheet filed by the Ettumanur
police in Crime No.55 of 2004 substantiates that the
accident occurred on account of the negligence on
part of the 1st respondent. Undisputedly, it was the
MACA.No.218 of 2009
deceased 2nd respondent who was the owner of the
vehicle and the 3rd respondent was the insurer of the
vehicle. Therefore, it is the 3rd respondent who is
liable to indemnify the liability of the 2 nd respondent
arising out of the accident.
Notional income
13. The petitioner had claimed that she was a
Tailor by profession and also doing poultry farming
and earning a monthly income of Rs.4,000/-. The
Tribunal fixed the notional income of the appellant at
Rs.2,000/- per month.
14. The Hon'ble Supreme Court in
Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Company Limited [(2011) 13
SCC 236] has fixed the notional income of a Coolie
worker in the year 2004, at Rs.4,500/- per month.
Following the ratio in the afore-cited decision, I am of
MACA.No.218 of 2009
the opinion that the petitioner's income has to be fixed
at Rs.4,000/- as claimed in the claim petition.
Loss of earnings
15. Ext.A7 discharge summary and Ext.A8
disability certificate proves that the petitioner had
suffered a Type 1 compound fracture both knees
(right) leg lower 1/3 region and also there was a
punctured wound on the right leg. Therefore, the
petitioner was necessarily incapacitated for a period of
three months. In the said circumstances and in view of
the re-fixation of the income of the petitioner at
Rs,4,000/-, I re-fix the compensation under the head
'loss of earnings' at Rs. 12,000/- instead of Rs.2,000/-
fixed by the Tribunal
Byestander expenses
16. It is on record that the petitioner was treated
as an in-patient for the period from 27.01.2004 to
MACA.No.218 of 2009
04.02.2004 i.e., the period of 9 days. The Tribunal
fixed the 'byestander expenses' at Rs.1,000/-, which
according to me is on the lower side. Hence, I re-fix
the 'byestander expenses' at Rs.200/- per day for a
period of 9 days, i.e., an amount of Rs.1,800/-, which is
an enhancement by Rs.800/-.
Loss of amenities
17. The petitioner had claimed an amount of
Rs.60,000/- towards 'loss of amenities'. However, the
Tribunal only awarded an amount of Rs.6,000/-, which
again according to me is on the lower side.
Considering the fact that the appellant had sustained a
compound fracture as mentioned above and that she
was incapacitated for a period of three months, I am of
the opinion that the compensation under the head 'loss
of amenities' has to be enhanced by a further amount
of Rs.8,000/-, i.e., a total of Rs.14,000/-.
MACA.No.218 of 2009
Loss due to disability
18. Although, the petitioner had claimed that she
has suffered permanent disability at 8% as per Ext.A8
disability certificate, the petitioner did not examine
the Doctor who authored the said certificate as per the
mandate in Rajkumar v. Ajayakumar [2011(1) KLT
620(SC)]. Hence, it has to be inferred that the
petitioner does not have any disability.
19. With respect to the other heads of
compensation, I find that the Tribunal has awarded
reasonable and just compensation.
20. On an overall re-appreciation of the
pleadings, materials on record and the law laid down
in the afore-relied decision, I am of the opinion that
the appellant/petitioner is entitled for enhancement of
compensation as modified and recalculated above, that
is enhancement by a further amount of Rs.18,800/-,
MACA.No.218 of 2009
namely, Rs.10,000/- towards 'loss of earnings' and
Rs.800/- towards 'bye-stander expenses' and Rs.8,000/-
towards 'loss of amenities'.
In the result, the appeal is allowed, in part, by
enhancing the compensation by a further amount of
Rs.18,800/- with interest on the enhanced
compensation at the rate of 7.5% per annum from the
date of petition till the date of deposit and
proportionate costs. The 2nd respondent shall deposit
the enhanced compensation awarded in this appeal
with interest and proportionate 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
dlk 13.07.2021
