Kerala High Court

Babu vs Shemeer on 25 March, 2021

MACA.No.652 OF 2013

                               1

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

            THE HONOURABLE MR.JUSTICE C.S.DIAS

THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943

                      MACA.No.652 OF 2013

  AGAINST THE AWARD IN OP(MV) 707/2006 OF MOTOR ACCIDENT
                CLAIMS TRIBUNAL ALAPPUZHA


APPELLANTS/PETITIONERS:

     1     BABU
           S/O. SAHADEVAN,
           MATTATHUPARAMBU,
           KUTHIRAPANTHI,
           ALAPPUZHA.

     2     SHYLAJA
           W/O. BABU,
           RESIDING - DO -

     3     VYSALI (MINOR)
           D/O. BABU,
           RESIDING - DO -

     4     VYSAKH
           S/O. BABU (MINOR)
           RESIDING - DO -

           (PETITIONERS 3 AND 4 ARE REPRESENTED BY THE
           2ND PETITIONER)

           BY ADV. SRI.T.G.RAJENDRAN

RESPONDENT/S:

     1     SHEMEER
           S/O. BASHER,
           THOUFIKE MANZIL,
           PALACE WARD,
           ERAVUKADU WARD,
           ALAPPUZHA.
 MACA.No.652 OF 2013

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     2     NIYAS,
           S/O. ABOOBACKER,
           8/24/1073/28, PUTHEN VEEDU,
           ALAPPUZHA.

     3     UNITED INDIA INSURANCE CO LTD.,
           DIVISIONAL OFFICE,
           SARADA SHOPPING COMPLEX,
           MULLACKAL,
           ALAPPUZHA.

           R3 BY SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU

OTHER PRESENT:

           ADV -- JOHN JOSEPH VETTIKAD -SC FOR INSURANCE
           COMPANY .

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 25-03-2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA.No.652 OF 2013

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                         JUDGMENT

Dated this the 25th day of March 2021

The appellants were the petitioners in O.P (MV)

707/2006 on the file of the Motor Accidents Claims

Tribunal, Alapppuzha. The respondents in the appeal were

the respondents in the claim petition. The parties are,

for the sake of convenience, referred to as per their status

in the claim petition.

2. The petitioners had filed the claim petition under

Section 166 of the Motor Vehicles Act, 1988 ( in short " the

Act") claiming compensation on account of the injuries

that was sustained by the 1 st petitioner in the accident

that took place on 6.10.2005. It was the case of the

petitioners that on 6.10.2005 while the 1 st petitioner was

driving his autorickshaw through the Alappuzha - Kollam

National Highway, when he reached the Thiruvampadi

junction, a motorcycle bearing Reg. No.KL/4T/899

(offending vehicle) driven by the 1st respondent hit the 1st

petitioner and he fell down and sustained serious injuries. MACA.No.652 OF 2013

The 1st petitioner was taken to the Medical College

Hospital, Alappuzha where he was treated as an inpatient

for a period of 50 days. The 1 st petitioner sustained

grievous injuries including fractures of both his bones on

his right leg and acute subdural hemorrhage on the left

side. The 1st petitioner was an autorickshaw driver and

earning a monthly income of Rs.5,000/-. As the 1 st

petitioner was seriously laid up, the petitioners 2 to 4, his

wife and minor children, were filing the claim petition

along with the 1st petitioner. The 2nd respondent was the

owner and 3rd respondent was the insurer of the offending

vehicle. The petitioners contended that the respondents

were liable to pay the petitioners an amount of

Rs.10,35,000/- as compensation.

3. The respondents 1 and 2 filed a joint written

statement denying the allegations in the claim petition.

They contended that the accident occurred solely due to

the negligence on the part of the 1 st petitioner.

Nevertheless, the offending vehicle was insured with the

3rd respondent. Therefore, only the 3rd respondent was MACA.No.652 OF 2013

liable to pay the compensation.

4. The 3rd respondent filed a separate written

statement admitting that the offending vehicle had a valid

insurance policy issued by the 3rd respondent. However,

the 3rd respondent denied that the accident occurred due

to the negligence of the 1st respondent. It was also

contended that the amount of compensation claimed was

excessive.

5. The petitioners 1 and 2 were examined as PW1

and PW3. The Doctor who issued Ext.C1 disability

certificate was examined as PW2. Exts.A1 to A11 and

Ext.C1 were marked in evidence through PW1 to PW3.

The respondents did not let in any evidence.

6. The Tribunal, after analysing the pleadings and

materials on record, by the impugned award allowed the

claim petition in part, by allowing the 1 st petitioner to

realise an amount of Rs.1,68,315/- with interest at the rate

of 7.5 % per annum from the date of petition till the date

of realisation and a cost of Rs.1,683/- from the

respondents. The 3rd respondent was directed to pay the MACA.No.652 OF 2013

compensation.

7. Dissatisfied with the quantum of compensation

awarded by the Tribunal, the petitioners are in appeal.

8. Heard the learned counsel appearing for the

appellants/petitioners and the learned counsel appearing

for the 3rd respondent/ Insurance Company.

9. 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.

10. Ext.A4 charge-sheet filed by the Police after

investigation, substantiates that the accident occurred

solely due to the negligence of the 1 st respondent. It is

proved that the offending vehicle was owned by the 2 nd MACA.No.652 OF 2013

respondent and insured with the 3 rd respondent. Ext.A3

wound certificate and Ext.A10 discharge card

substantiates that the 1st petitioner had suffered serious

injuries in the accident. Ext.C1 disability certificate

issued by the Medical Board of the T.D.Medical College,

Alappuzha proves that the 1st petitioner has a permanent

disability of 20%. Ext.C1 has been proved by PW2.

11. The question that emanates for consideration in

this appeal is whether the quantum of compensation

awarded by the Tribunal is just and reasonable?

12. The 1st petitioner had claimed that he was an

autorickshaw driver by profession and earning a monthly

income of Rs.5000/-. The Tribunal fixed the notional

income of the 1st petitioner at Rs.3,500/- per month.

13. In Ramachandrappa v. Manager, Royal

Sundaram Alliance [(2011) 13 SCC 236] and in

Syed Sadiq and others v. Divisional Manager,

United India Insurance Co.Ltd [(2014) 2 SCC 735],

the Hon'ble Supreme Court has fixed the notional MACA.No.652 OF 2013

income of a coolie worker in year 2004 at the rate of

Rs.4,500/- per month and that of a vegetable vendor

at the rate of Rs.6,500/- per month in the year 2006,

respectively. Similarly in Pushkar Mehara v. Brij

Mohan Kushwaha [(2015) 12 SCC 688], the Hon'ble

Supreme Court has fixed the notional income of a

skilled labour/technical supervisor at Rs.7,000/- per

month.

Notional Income

14. Following the parameters laid down by the

Hon'ble Supreme Court in the aforecited decisions and

considering the fact that the 1 st petitioner was a driver

by profession and the accident occured in the year

2005, I am of the considered opinion that the

petitioner's notional income can safely be fixed, as

claimed in the petition, at Rs.5,000/- per month

Loss of earning

15. Even though the petitioner had not claimed MACA.No.652 OF 2013

any amount under the head 'loss of earnings', in light

of the law laid down by the Hon'ble Supreme Court in

Pranay Sethi (supra), I am of the considered opinion

that the 1st petitioner is entitled for compensation

under the head 'loss of earning'.

16. It is proved that the petitioner was

hospitalised for a period of 50 days. In such

circumstances, the 1st petitioner was not in a position

to go for work for a period of 50 days. In view of the

refixation of the notional income of the 1st petitioner at

Rs.5000/- per month, I hold that the 1 st petitioner is

entitled for compensation under the head 'loss of

earning'. Hence I award compensation under the head

'loss of earning' at Rs.20,000/-.

Pain and suffering

17. Even though the petitioners had claimed an

amount of Rs.1,00,000/- under the head 'pain and

sufferings', the Tribunal had only awarded an amount

of Rs.15,000/-. It is proved by Exts.P3 wound MACA.No.652 OF 2013

certificate and A10 discharge card read with Ext.C1

that the 1st petitioner had suffered fractures as well as

a subdural hemorrhage and has 20% permanent

disability. He was treated as an inpatient for a period

of 50 days. Therefore, I am of the considered opinion

that the 1st petitioner is entitled for enhancement of

compensation under the head 'pain and suffering' by a

further amount of Rs.25,000/-. Accordingly, I re-fix

the quantum of compensation under the head 'pain

and sufferings' at Rs.40,000/-.

Loss due to disability

18. In view of the re-fixation of the notional

income of the 1st petitioner, the fact that he was 42

years of age, adopting the relevant multiplier 14 and

going by the parameters laid down by the Hon'ble

Supreme Court, I hold that the petitioner is entitled

for compensation under the head 'loss due to

permanent disability' at Rs.1,68,000/-, instead of

Rs.1,17,600/- fixed by the Tribunal. MACA.No.652 OF 2013

Other heads of claim

19. With respect to other heads of claim,

namely, cost of medicines, bystander expenses and

transportation charges, 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

by the Hon'ble Supreme Court in the afore-cited

decisions, I am of the considered opinion that the 1 st

1st appellant/1st petitioner is entitled to enhanced

compensation as modified and re-calculated above,

and given in the table below for easy reference.

 MACA.No.652 OF 2013






   Sl.              Head of claim                    Amount      Amounts
   No                                              awarded (in   modified    and
                                                     rupees)     recalculated by
                                                                 this Court
   1       Transportation charges                    2,500           2,500
   2       Cost of medicines                         28,215          28,215
   3       Bystander expenses                        5,000           5,000
   4       Compensation for disability              1,17,600        1,68,000
   5       Compensation      for    pain    and      15,000          40,000
           suffering
   6       Loss of earning                             ---           20,000
   7       Total                                    1,68,315       2,63715
           2,63715 - 1,68,315 =                     ======         ======
           95,400




       In the result, the appeal is allowed in part,                           by

enhancing       the compensation by a further amount of

Rs.95,400/-( Rupees Ninety five thousand four hundred

only ) with interest at the rate of 7.5% per annum on the

enhanced compensation from the date of petition till the

date of realisation excluding the delay for a period of 290

days in filing the appeal and proportionate costs. The 3 rd

respondent shall deposit the enhanced compensation

with interest and proportionate costs before the Tribunal

within a period of two months from the date of receipt of a

certified copy of the judgment. The disbursement of the MACA.No.652 OF 2013

additional compensation to the 1st appellant/1st petitioner

shall be done in accordance with law.

Sd/-