Kerala High Court

Ambu @ Narayana Maniyani vs H.Hameed on 22 July, 2021

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                   THE HONOURABLE MR.JUSTICE C.S.DIAS
         THURSDAY, THE 22ND DAY OF JULY 2021 / 31ST ASHADHA, 1943
                           MACA NO. 2901 OF 2008

AGAINST THE COMMON AWARD IN O.P.(MV) NO.365/2002 DATED 22.08.2005 OF
THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD.
APPELLANT/PETITIONER:

             AMBU ALIAS NARAYANA MANIYANI,
             AGED 44 YEARS, S/O.KANNA MANIYANI,
             RESIDING AT, KALLAMKUDLU HOUSE,
             P.O.KARADKA, MULIYAR,
             KASARAGOD TALUK AND DISTRICT.

             BY ADV SRI.I.V.PRAMOD



RESPONDENTS/RESPONDENTS:

     1       H.HAMEED,
             AGED 49 YEARS, S/O.PALLIKUNHI,
             RESIDING AT MICHABHUMI COLONY,
             NAIMARMOOLE,, P.O.VIDYANAGAR,
             KASARAGOD TALUK AND DISTRICT.

     2       E.NIZHARUDHEEN,
             THEKKETHADATHIL HOUSE,
             PUTHAN VEEDU, KUNNICODE P.O.,
             KOLLAM DISTRICT.

     3       THE BRANCH MANAGER,
             NATIONAL INSURANCE CO.LTD.,
             KOTTARAKARA BRANCH, UTHRADAM BUILDINGS,
             Q.S.ROAD, PULAMOOR P.O.

             BY ADV SRI.JOE KALLIATH

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 22.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 2901 OF 2008
                              -2-

                         JUDGMENT

The appellant was the petitioner in O.P.(MV) No.365

of 2002 on the file of the Motor Accidents Claims Tribunal,

Kasaragod. The respondents in the appeal were the

respondents before the Tribunal.

2. The facts in brief, the relevant for determination

of appeal are: on 06.05.2001, while the appellant was

travelling as pillion on scooter bearing registration No.KL-

14/6344 with one Sreedharan, when the vehicle reached

Santhi Nagar, a jeep bearing registration No.TN-04/E-

3794 (offending vehicle) came from the opposite side and

hit the scooter. The appellant was thrown on the road and

he suffered serious injuries including segmental fracture

of his left femur and gross deformity of both his thighs. He

was treated as an inpatient at High Land Hospital,

Mangalore from 06.05.2001 to 27.08.2001. The appellant

had to undergo operations and fixation of iron rods. Even MACA NO. 2901 OF 2008

now, he is permanently disabled. The offending vehicle

was driven by the 1st respondent, owned by the 2nd

respondent and insured with the 3rd respondent. The

appellant was a mosaic worker by profession and earning

a monthly income of Rs.3,000/-. The appellant contended

that respondents are jointly and severally liable to pay

compensation, which is quantified at Rs.6,16,000/-, but

limited to Rs.5,00,000/-.

3. Respondents 1 and 2 did not contest the

proceedings. The 3rd respondent filed a written statement

admitting that the offending vehicle has a valid insurance

coverage. However, it was contended that the driver of the

offending vehicle - the 1st respondent - did not hold a valid

driving licence. Therefore, the 3rd respondent is not liable

to indemnify the insured as he had violated the policy

conditions.

4. The legal representatives of the rider of the MACA NO. 2901 OF 2008

motorcycle and the other pillion rider also filed O.P.(MV)

Nos.127 of 2002 and 351 of 2002 before the same

Tribunal.

5. The Tribunal consolidated and jointly tried the

three original petitions.

6. The appellant produced and marked Exts.A1 to

A10 in evidence. The 3rd respondent produced and marked

Exts.B1 to B3 in evidence. Exts.X1 to X4 were marked as

court exhibits.

7. The Tribunal, after analysing the pleadings and

materials on record, allowed the claim petition filed by the

appellant in part, by holding that the appellant was

entitled to a compensation of Rs.3,09,110/- with interest at

the rate of 9% per annum from the date of petition till

31.12.2004 and, thereafter, at the rate of 6% per annum

with proportionate cost. The 3rd respondent was directed

to pay the compensation amount and recover the same MACA NO. 2901 OF 2008

from respondents 1 and 2, as the 2 nd respondent had

violated the policy conditions.

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. Ext.A2 charge sheet filed by the police

substantiates that the accident occurred on account of the

negligence on the part of the 1st respondent who drew the

offending vehicle in a negligent manner. Undisputedly, the

2nd respondent was the owner and the 3rd respondent was

the insurer. However, it is proved that the 1 st respondent

did not hold a valid driving licence. Therefore, the 2 nd

respondent had violated the conditions in Ext.B3 insurance

policy, by permitting the 1st respondent to drive the

offending vehicle without a valid driving licence. MACA NO. 2901 OF 2008

Therefore, even though the 3rd respondent is to be directed

to pay the compensation, they are entitled to recover the

same from the respondents 1 and 2.

Notional Income

11. The appellant had claimed that he was a mosaic

worker by profession and earning an amount of Rs.3,000/-

per month. Nevertheless, the Tribunal fixed the notional

income of the appellant at Rs.1,500/-.

12. 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.4500/- per month.

13. Following the ratio in the aforecited decision and

considering the fact that the accident occurred in the year

2001, I re-fix the notional income of the appellant at

Rs.3,000/- per month.

MACA NO. 2901 OF 2008

Loss of earnings

14. As per Ext.A6 wound certificate, Ext.A7

discharge summary and Ext.X2 disability certificate, it is

proved that the appellant was treated as an inpatient for a

period of 109 days. He was indisposed for a period of six

months.

15. In view of the re-fixation of the notional income

of the appellant and six months as the period that he was

indisposed, I re-fix his loss of earnings at Rs.18,000/-

instead of Rs.9,000/- fixed by the Tribunal.

Multiplier

16. The appellant was aged 38 years at the time of

accident. In view of the law laid down in Sarla Verma v.

Delhi Transport Corporation [2010 (2) KLT 802 (SC)],

and in Pappu Deo Yadav v. Naresh Kumar and others

[AIR 2020 SC 4424], the relevant multiplier is '15'. MACA NO. 2901 OF 2008

Disability

17. The disability of the appellant was assessed by a

duly constituted Medical Board as per Ext.X2 certificate.

The Medical Board found that the appellant has a

permanent disability of 45%.

Loss due to disability with future prospects

18. In view of the aforesaid factors namely, the

notional income of the appellant at Rs.3,000/-, disability at

45%, multiplier at '15' and the law laid down in Pappu

Deo Yadav's case (supra) that the appellant is entitled for

future prospects at 40%, I re-fix the loss due to disability

at Rs.3,40,200/- instead of Rs.1,29,600/- fixed by the

Tribunal.

Compensation for pain and sufferings and loss of

amenities

19. The appellant had claimed an amount of

Rs.50,000/- under the head compensation for pain and MACA NO. 2901 OF 2008

sufferings at Rs.50,000/- under the head loss of amenities.

However, the Tribunal did not award any amount under

the aforesaid heads.

20. Taking note of the serious injuries sustained by

the appellant, that he has suffered a permanent disability

of 45%, that he was treated as an inpatient for a period of

109 days and that he was incapacitated for a period of six

months, I am of the definite opinion that the appellant is

entitled for compensation under the aforesaid heads at

Rs.20,000/- each, i.e., a total amount of Rs.40,000/-.

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 pleadings,

materials on record and the law laid down in the

aforecited decisions, I hold that the appellant is entitled

for compensation as modified and recalculated above and MACA NO. 2901 OF 2008

given in the table below for easy reference.

     Sl.No. Head of claim               Amount          Amount
                                        awarded by      modified
                                        the Tribunal    and
                                        (in rupees)     recalculated
                                                        by this Court

     1        Loss of earnings               9,000           18,000

     2        Transport                      1,000            1,000



     4        Bystander expenses            16,350           16,350

     5        Extra nourishment              1,000            1,000

     6        Medical expenses            1,51,960        1,51,960

     7        Pain and sufferings           Nil              20,000

     8        Loss of amenities             Nil              20,000

     9        Loss       due      to      1,29,600        3,42,000
              disability

              Total                      3,09,110         5,70,560

In the result, the appeal is allowed by enhancing the

compensation by a further amount of Rs.2,61,450/- with MACA NO. 2901 OF 2008

interest at the rate of 6% per annum on the enhanced

compensation from the date of petition till the date of

deposit, after deducting the period of 1008 days, i.e., the

period of delay in filing this appeal and as ordered by this

Court on 19.03.2021 in C.M.Application No.2956 of 2008,

and proportionate cost. The 3rd respondent shall deposit

the enhanced compensation with interest and

proportionate cost before the Tribunal within a period of

sixty days from the date of a receipt of a certified copy of

this judgment. The 3rd respondent is permitted to recover