Kerala High Court
Muhammedkutty vs P.M.Shamsu on 1 March, 2021
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MACA.No.2063 OF 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942
MACA.No.2063 OF 2011
AGAINST THE AWARD IN OPMV 715/2009 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL TIRUR DATED 6.7.2010
APPELLANT/S:
MUHAMMEDKUTTY
S/O. MOIDEEN BAVA, PUTHENPURAYIL HOSUE,
VELLYAMCODE, AYYOLLICHIRA PONNANI, MALAPPURAM.
BY ADV. SRI.T.C.SURESH MENON
RESPONDENT/S:
1 P.M.SHAMSU
S/O. HAMSA MAKKINTEPURAKKAL HOUSE,
PUTHUPONNANI.P.O., PONNANI SOUTH, MALAPUPRAM
DISTRICT. PIN-679577.
2 NOUSHAD, S/O. USMAN
KOYANIKANGATH HOUSE, PUTHUPONNANI, MALAPPURAM
DISTRICT-679577.
3 THE NEW INDIA ASSURANCE CO.LTD.
BRANCH OFFICE 1ST FLOOR, TARRIFF BAZAR, OPP: TOWN
HALL, TIRUR-676101.
R1 BY ADV. SRI A.A ZIYAD RAHMAN BY ORDER NO MEMO
R1 BY ADV. SRI.P.K.BABU
R3 BY ADV. SRI A.A ZIYAD RAHMAN (BY ORDER) NO MEMO
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 1.3.2021, THE COURT ON 01-03-2021 DELIVERED THE FOLLOWING:
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MACA.No.2063 OF 2011
C.S.DIAS, J.
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MACA No.2063 of 2011
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Dated this the 1st day of March, 2021
JUDGMENT
The appellant was the petitioner in OP(MV) No.715/2009 on
the file of the Motor Accidents Claims Tribunal, Tirur. 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 concise case of the petitioner in the claim petition
was that, on 11.10.2008 while he was travelling as pillion rider
on a motor cycle bearing registration No.KL-54A-865, an auto
rickshaw bearing registration No.KL-8D-9913 driven by the
second respondent, in a rash and negligent manner, hit the
motor cycle and the petitioner was thrown on the road. The
petitioner sustained serious injuries and he was treated as an
inpatient for 20 days. The first respondent is the registered
owner of the auto rickshaw and the third respondent is the
insurer. Hence, the petitioner is entitled for a compensation of
MACA.No.2063 OF 2011
Rs.1,71,000/- under various heads.
3. The respondents 1 and 2 were set ex parte.
4. The third respondent filed a written-statement
admitting the insurance policy of the offending vehicle.
However, the third respondent contended that it had not
verified the driving licence of the second respondent and that
the accident occurred due to the rash and negligent driving of
the petitioner. Hence, the third respondent prayed that the
claim petition be dismissed.
5. The petitioner produced and marked Exts A1 to A8 in
evidence. Neither party adduced any oral evidence.
6. The Tribunal, after considering the pleadings and
materials on record, by the impugned award allowed the claim
petition, in part, by directing the third respondent to pay the
petitioner an amount of Rs.34,500/- with interest and costs as
compensation.
7. The comparative table of compensation that was
claimed by the petitioner and that was awarded by the Tribunal
is as follows:-
SI Head of claim Amount claimed Amount awarded by
No (in rupees) the Tribunal(in
rupees)
1 Loss of earnings (Total) 24,000/- 9,900/-
MACA.No.2063 OF 2011
2 Loss of earnings Nil
(Partial) Nil
3 Medical and miscellaneous 10,000/-
expenses 4,301/-
4 Future treatment 5,000/- Nil
5 Bystander expenses 6,000/- 3,000/-
6 Transportation expenses 3,000/- 1,000/-
7 Extra nourishment 2,000/- 2,000/-
8 Damage to clothing, etc 1,000/- 300/-
9 Pain and sufferings 20,000/- 12,000/-
10 Loss of dependency Nil Nil
11 Loss of consortium NIl Nil
12 Loss of love and affection Nil Nil
13 Loss of earning power Nil Nil
14 Compensation towards 1,00,000/- Nil
loss of permanent/partial
disability
15 Loss of amenities and Nil 2,000/-
conveniences etc.
16 Any other heads Nil Nil
Total claim 1,71,000/- 34,501/- rounded to
34,500/-
8. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioner is in the appeal.
9. As the third respondent - the Insurance Company -
had admitted the insurance policy, notice to the respondents 1
and 2 was dispensed with by order dated 31.1.2012.
10. Heard the learned counsel appearing for the
appellant/petitioner and the learned counsel appearing for the
third respondent - the Insurance Company.
11. The question that emanates for consideration in this
MACA.No.2063 OF 2011
appeal is whether the quantum of compensation awarded by the
Tribunal is just and reasonable.
12. 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.
13. It is an undisputed fact that the petitioner sustained
injuries on account of the accident on 11.10.2008 due to the
rash and negligent driving by the second respondent. The
petitioner was 45 years at the time of accident.
14. When this appeal came up for consideration on
23.12.2011, the appellant/petitioner was directed to be present
before this Court. A Division Bench of this Court after seeing
the petitioner assessed his permanent disability at 15%. The
said order has become final.
15. The Tribunal by the impugned award has not awarded
MACA.No.2063 OF 2011
any amount towards the permanent disability of the petitioner,
on the ground that the petitioner had not produced any records
to substantiate his disability. In view of the present evaluation
and assessment made by the Division Bench, the petitioner's
disability is fixed at 15%.
16. The Tribunal by the impugned award after finding
that the petitioner was a fish merchant fixed his notional
income at Rs.3,300/- per month.
17. The Hon'ble Supreme Court in Ramachandrappa v.
Manager, Royal Sundaram Alliance Insurance Company
Limited [(2011) 13 SCC 236] and Syed Sadiq v. Divisional
Manager, United India Insurance Co. Ltd. [(2014) 2 SCC
735] has fixed the notional income of a coolie worker at
Rs.4,500/- in the year 2004 and that of a vegetable vendor at
Rs.6,500/- in the year 2006, respectively. Similarly, this Court in
Soman vs. Jinesh James and others [ILR 2020 (3) Kerala
1003] has fixed the notional income of a coolie worker at
Rs.7,500/- in the year 2010.
18. Following the parameters laid down by the Hon'ble
Supreme Court and this Court in the aforecited decisions and
taking into consideration the fact that the petitioner was 45
MACA.No.2063 OF 2011
years of age at the time of accident and was a fish merchant, I
am of the considered opinion that the petitioner's notional
income can safely be fixed at Rs.6,500/- per month.
19. In view of the refixation of the notional income of the
petitioner and his disability being fixed at 15% by a Division
Bench of this Court, I am of the firm opinion that the petitioner
is entitled for compensation for loss due to permanent
disability.
20. In view of the refixation of the notional income of the
petitioner, the compensation under the head loss of earnings of
the petitioner is refixed at Rs.19,500/- instead of Rs.9,900/-
fixed by the Tribunal.
21. Going by the law laid down in Sarla Verma v. Delhi
Transport Corporation [(2009) 6 SCC 121], National
Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC
680] and Pappu Deo Yadav Vs. Naresh Kumar and others
[AIR 2020 SC 4424], I hold that the petitioner is also entitled
for compensation for future prospects. Taking into
consideration that the petitioner was aged 45 years at the time
of accident and that the relevant multiplier is 14, the petitioner
is entitled for future prospects at 25%.
MACA.No.2063 OF 2011
22. In light of the refixation of petitioner's notional income
and disability being fixed at 15% and that he is entitled for
compensation for future prospects, I hold that the petitioner is
entitled to compensation under the head loss of disability with
future prospects @ Rs.2,04,750/-.
Other heads of claim
23. With respect to other heads of claim, I find that the
Tribunal has awarded reasonable and just compensation to the
petitioner.
24. On an overall appreciation of the pleadings, materials
on record and the law laid down by the Hon'ble Supreme Court
and this Court in the aforecited decisions, I am of the firm
opinion that the petitioner is entitled for enhancement of
compensation as modified and recalculated above and given in
the table below for easy reference.
SI Head of claim Amount claimed Amount Amounts
No (in rupees) awarded by the modified and re
Tribunal(in calculated by
rupees) this Court
(in rupees)
1 Loss of earnings 24,000/- 9,900/- 19,500/-
(Total)
2 Loss of Nil Nil
earnings Nil
(Partial)
3 Medical and 10,000/- 4,301/-
miscellaneous 4,301/-
expenses
MACA.No.2063 OF 2011
4 Future treatment 5,000/- Nil Nil
5 Bystander expenses 6,000/- 3,000/- 3,000/-
6 Transportation 3,000/- 1,000/- 1,000/-
expenses
7 Extra nourishment 2,000/- 2,000/- 2,000/-
8 Damage to clothing, 1,000/- 300/- 300/-
etc
9 Pain and sufferings 20,000/- 12,000/- 12,000/-
10 Loss of dependency Nil Nil Nil
11 Loss of consortium Nil Nil Nil
12 Loss of love and Nil Nil Nil
affection
13 Loss of earning Nil Nil Nil
power
14 Compensation 1,00,000/- Nil Nil
towards loss of
permanent/partial
disability
15 Loss of amenities and Nil 2,000/- 2,000/-
conveniences etc.
16 Any other heads Nil Nil Nil
17 Loss due to disability Nil Nil 2,04,750/-
with future prospects
Total claim 1,71,000/- 34,501/- 2,48,851/-
rounded to
34,500/-
25. The petitioner had claimed only an amount of
Rs.1,71,000/- in the claim petition. However, after following the
aforecited decisions, I find that the petitioner is entitled to a
compensation of Rs.2,48,851/- . The Hon'ble Supreme Court in
Nagappa vs. Gurudayal Singh [ 2003 (1) KLT 115(SC) has
held that there is no restriction in awarding more compensation
than the amount claimed in the claim petition. In light of the
above pronouncement of law, I hold that the petitioner is
MACA.No.2063 OF 2011
entitled for the aforesaid amount as compensation,which is just
and reasonable.
In the result, the appeal is allowed by enhancing the
compensation by a further amount of Rs.2,14,350/- (Rupees
Two Lakh Fourteen Thousand Three Hundred and Fifty only)
with interest @ of 9% p.a on the enhanced compensation from
the date of petition till the date of realisation with proportionate
costs. The third respondent shall deposit the additional
compensation granted in this appeal, before the Tribunal with
interest and proportionate costs, within a period of two months
from the date of receipt of a certified copy of the judgment,
after deducting the liability, if any, of the appellant/petitioner
towards balance court fee and legal benefit fund. The
disbursement of compensation to the appellant/petitioner shall
be made, in accordance with law.
Sd/-
C.S.DIAS
SKS/1.3.2021 JUDGE
