Kerala High Court
Ayisha vs United India Insurance Co. Ltd on 5 March, 2021
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MACA.No.3153 OF 2015
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942
MACA.No.3153 OF 2015(D)
AGAINST THE AWARD IN OPMV 1678/2013 DATED 04-03-2015 OF THE
PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE
APPELLANT/S:
1 AYISHA, AGED 65 YEARS
W/O.ABDULLA, 466, PUTHANPURAYIL, MARUTHONKARA,
VATAKARA, KOZHIKODE
2 AMMAD, AGED 48 YEARS
S/O.ABDULLA, 277 A, AKKANTE PARAMBATH, CHANGAROTH,
KOYILANDI, KOZHIKODE
3 HAMEED, AGED 45 YEARS
S/O.ABDULLA, 466(2) 176, PUTHANPURAYIL
MARUTHONKARA, ADUKKATH, VATAKARA, KOZHIKODE
4 SALAM, AGED 43 YEARS
S/O.ABDULLA, 466(157) PUTHANPURAYIL, MARUTHONKARA,
VATAKARA, KOZHIKODE
5 ASHRAF, AGED 40 YEARS
S/O.ABDULLA, 466, PUTHANPURAYIL, MARUTHONKARA,
VATAKARA, KOZHIKODE
BY ADV. SRI.AVM.SALAHUDIN
RESPONDENT/S:
UNITED INDIA INSURANCE CO. LTD.
WHITE LINES, KALLAI ROAD, KOZHIKODE 673001
R1 BY ADV. SRI.N.S.MOHAMMED USMAN
OTHER PRESENT:
JOHN JOSEPH VETTIKAD SC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 5.3.2021, THE COURT ON 05-03-2021 DELIVERED THE FOLLOWING:
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MACA.No.3153 OF 2015
C.S.DIAS, J.
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MACA No.3153 of 2015
======================
Dated this the 5th day of March, 2021
JUDGMENT
The petitioners in OP (MV) No.1678/2013 on the file of
the Principal Motor Accidents Claims Tribunal, Kozhikode
are the appellants. The third respondent in the claim
petition is the respondent in this appeal. The parties are,
for the sake of convenience, referred to as per their status
before the Tribunal.
2. The petitioners had filed the claim petition under
Sec.166 of the Motor Vehicles Act, 1988, claiming
compensation on account of the death of Abdulla, who died
in a motor accident on 15.12.2007.
3. The concise case of the petitioners in the claim
petition, for the determination of the appeal, is that: On
15.12.2007 while Abdulla (deceased) was walking along the
MACA.No.3153 OF 2015
public road near KSEB office at Maruthonkara, a jeep
bearing registration No.KL-11-C-2179 (offending vehicle)
driven by the second respondent in a rash and negligent
manner hit the deceased. The deceased was taken to the
Medical College Hospital, Kozhikode where he was treated
as an inpatient till 31.12.2007. Even though the deceased
was discharged on 31.12.2007, he later succumbed to the
injuries on 10.2.2008. The accident occurred due to the
negligence of the second respondent. The offending vehicle
was owned by the first respondent and insured with the
third respondent. Therefore, the respondents are jointly
and severally liable to pay compensation to the petitioners.
4. During the pendency of the proceedings, the first
respondent - owner of the offending vehicle - died. His legal
representatives were impleaded as supplemental
respondents 4 to 9.
5. Although the respondents 2 to 9 entered
appearance before the Tribunal, only the third respondent
filed a written statement. The third respondent admitted
the insurance policy but denied its liability. It was the case
MACA.No.3153 OF 2015
of the third respondent that the deceased died due to a
natural cause. There is no material to prove that the
deceased died due to the accident. No postmortem was
conducted and the police have not investigated the death of
the deceased. Therefore, the petitioners are not entitled for
any amount as compensation from the third respondent.
6. The petitioners produced and marked Exts A1 to
A6 in evidence. Neither the petitioners nor the respondents
let in any oral evidence.
7. The Tribunal, after considering the pleadings and
materials on record, allowed the claim petition, in part, by
directing the third respondent to pay an amount of
Rs.32,299/- to the petitioners as compensation.
8. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioners are in the appeal.
9. Heard the learned counsel appearing for the
appellants/petitioners and the learned counsel appearing for
the respondent/third respondent - the Insurance Company.
10. The questions that emanate for consideration in
this appeal are:
MACA.No.3153 OF 2015
(i) whether the Tribunal has committed any error in
not granting any compensation on account of the
death of the deceased,
(ii) whether the compensation awarded by the
Tribunal for the injuries sustained by the deceased
is just and reasonable.
Question No.(i)
11. The petitioners had contended in the claim petition
that the deceased had died on account of the injuries that
he sustained in the accident. Only Ext A1 FI statement
dated 15.12.2007 was produced to prove the accident. Ext
A3 death certificate establishes that the deceased expired
on 10.2.2008. Ext A2 wound certificate establishes that the
deceased had sustained injuries in the accident. On a
reading of Ext A1, it can be gathered that Kuttiyadi Police
station had registered crime No.393/2007 against the
second respondent for offences punishable under Secs 279
and 337 of the Indian Penal Code. Admittedly, the
petitioners had not intimated the police regarding the death
of the deceased or conducted the postmortem of the
MACA.No.3153 OF 2015
deceased. The deceased passed away on 5.2.2008, nearly
two months after the accident, that too after he has
discharged from hospital on 31.12.2007. The petitioners
also did not let in any oral evidence to assert their
contention in the claim petition, that the deceased allegedly
died due to the accident. It is after considering all the
above relevant materials, that the Tribunal came to a
conclusion that the petitioners have
not proved that the deceased died on account of the
accident. On a reappreciation of the pleadings and materials
on record, I do not find any error or illegality in the findings
arrived at by the Tribunal. Therefore, question No.(i) is
answered against the petitioners.
Question No.(ii)
12. Now coming to the question, whether the
compensation awarded by the Tribunal for the injuries
sustained by the deceased is reasonable or not.
13. The petitioners had pleaded that the deceased was
a coolie worker and he was 48 years at the time of accident.
The Tribunal fixed the notional income of the deceased at
MACA.No.3153 OF 2015
Rs.1,500/- per month.
14. Going by the well settled principles on notional
income laid down by 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], the Hon'ble Supreme Court has
fixed the notional income of a coolie worker at Rs.4,500/-
per month, in the year 2004 and that of a vegetable vendor
at Rs.6,500/- per month, in the year 2006, respectively.
Notional Income
15. Following the parameters in the above decisions, I
am of the considered opinion that the deceased's notional
income can safely be fixed at Rs.5,000/- per month as the
accident occurred in the year 2007, instead of Rs.1,500/-
per month as fixed by the Tribunal.
Loss of earnings
16. In light of the refixation of the notional income of
the deceased and that he was sick for a period of two
months, I refix the loss of earnings of the deceased at
MACA.No.3153 OF 2015
Rs.10,000/- instead of Rs.4,500/- fixed by the Tribunal.
Pain and sufferings
17. It is seen that the deceased had suffered serious
injuries and had undergone craniotomy and evacuation as
seen from Ext A5. In the said circumstances, the petitioner
is entitled for an amount of Rs.40,000/- towards pain and
sufferings as claimed in the claim petition, instead of
Rs.15,000/- awarded by the Tribunal. Accordingly, I enhance
the compensation under the said head by a further amount
of Rs.25,000/-.
Other heads of claim
18. With respect to other heads of claim, namely,
transport to hospital, damage to clothing, extra
nourishment, bystander expenses, medical expenses and
loss of amenities, I find that the Tribunal has awarded
reasonable and just compensation to the petitioners.
Accordingly, question No.(ii) is answered in favour of the
petitioners.
19. On an overall reappreciation of the pleadings,
materials on record and the law laid down by the Hon'ble
MACA.No.3153 OF 2015
Supreme Court in the aforecited decisions, I am of the
considered opinion that the petitioners are 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 Nil 4,500/- 10,000/-
2 Transport to hospital 8,000/- 500/- 500/-
3 Damage to clothing 1,000/-
300/- 300/-
4 Extra nourishment 9,000/- 500/- 500/-
5 Bystander expenses 8,000/- 1,700/- 1,700/-
6 Treatment expenses 10,000/- 4,799/- 4,799/-
7 Pain and sufferings 40,,000/- 15,000/- 40,000/-
8 Loss of amenities Nil 5,000/- 5,000/-
Total claim 32,299/- 62,799/-
In the result, the appeal is allowed, in part, by
enhancing the compensation by a further amount of
Rs.30,500/- (Rupees Thirty Thousand Five Hundred 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, awarded in this appeal, before
MACA.No.3153 OF 2015
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. The disbursement of compensation
to the appellants/petitioners shall be done, in accordance
with law.
Sd/-
C.S.DIAS
JUDGE
SKS/5.3.2021
