Samra @ Thamma vs C.B.Manzoor
2022 Latest Caselaw 742 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                   THE HONOURABLE MR.JUSTICE C.S.DIAS

         MONDAY, THE 17TH DAY OF JANUARY 2022 / 27TH POUSHA, 1943

                           MACA NO. 178 OF 2010

    AGAINST THE AWARD DATED 17.01.2009 IN OPMV 1666/2005 OF MOTOR

                 ACCIDENT CLAIMS TRIBUNAL MUVATTUPUZHA

APPELLANT/PETITIONER:

            FOUMY, W/O SUDHEER, AGED 33 YEARS
            RESIDING AT VATHIYEDATH HOUSE,, KURUMBILAVU,
            CHIRACKAL KARA,, CHAZHOOR VILLAGE.

            BY ADVS.
            SRI.A.K.SRINIVASAN
            SRI.A.S.BENOY
            SRI.JIMMY GEORGE



RESPONDENTS/RESPONDENTS:

1 C.B.MANZOOR, S/O BASHURUDEEN CHUNKASSERIL HOUSE, PADA NORTH,, KARUNAGAPPILLY, KOLLAM.

2 SANJAYANATH, S/O.RAMAKRISHNA PILLAI ASHA BHAVAN, EDAKKULANGARA,, KARUNAGAPPILLY.

3 THE ORIENTAL INSURANCE CO.LTD.

MULLACKAL, ALLEPPEY.

4 V.U.ISMAIL ,VELIYATHUKUKUDIYIL HOUSE MARKET P.O., MUVATTUPUZHA.

5 BAJAJ ALLIANZ, RAVIS ARCADE M.G.ROAD ERNAKULAM.

BY ADVS.

SRI.TITUS MANI SRI.AKHIL K.MADHAV

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON

17.01.2022, ALONG WITH MACA.179/2010, THE COURT ON THE SAME DAY DELIVERED

THE FOLLOWING:

MACA NOs. 178 & 179 OF 2010

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE C.S.DIAS

MONDAY, THE 17TH DAY OF JANUARY 2022 / 27TH POUSHA, 1943

MACA NO. 179 OF 2010

AGAINST THE AWARD DATED 17.01.2009T IN OPMV 1354/2006 OF MOTOR

ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA

APPELLANT/PETITIONER:

SAMRA @ THAMMA, D/O SUDHEER, AGED 7 YEARS RESIDING AT VATHIYEDATH HOUSE, KURUMBILAVU,, CHIRACKAL KARA, CHAZHOOR VILLAGE, REPRESENTED BY, HER MOTHER FOUMY, W/O.SUDHEER, AGED 33 YEARS,, RESIDING AT VATHIYEDATH HOUSE, KURUMBILAVU, CHIRACKAL KARA, CHAZHOOR VILLAGE AS BEST FRIEND

BY ADVS.

SRI.A.K.SRINIVASAN SRI.A.S.BENOY SRI.JIMMY GEORGE

RESPONDENTS/RESPONDENTS:

1 C.B.MANZOOR, S/O BASHURUDEEN CHUNKASSERIL HOUSE, PADA NORTH,, KARUNAGAPPILLY, KOLLAM.

2 SANJAYANATH, S/O.RAMAKRISHNA PILLAI ASHA BHAVAN, EDAKKULANGARA, KARUNAGAPPILLY.

3 THE ORIENTAL INSURANCE CO.LTD.

MULLACKAL, ALLEPPEY.

4 V.U.ISMAIL ,VELIYATHUKUKUDIYIL HOUSE MARKET P.O., MUVATTUPUZHA.

5 BAJAJ ALLIANZ RAVIS ARCADE, M.G.ROAD, ERNAKULAM. MACA NOs. 178 & 179 OF 2010

BY ADVS.

SRI.TITUS MANI SRI.AKHIL K.MADHAV

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR

ADMISSION ON 17.01.2022, ALONG WITH MACA.178/2010, THE COURT ON THE

SAME DAY DELIVERED THE FOLLOWING: MACA NOs. 178 & 179 OF 2010

COMMON JUDGMENT

As these appeals arise out of the common

award, they have been disposed of by this common

judgment.

2. The appellant in MACA No.178/2010 and the

appellant in MACA No.179/2010 were the

petitioners in OP(MV) Nos.1666/2005 and

1345/2006, respectively, of the Motor Accidents

Claims Tribunal, Muvattupuzha. The respondents in

both appeals were the same respondents before the

Tribunal in the above two claim petitions.

3. The appellants had filed the above claim

petitions, independently, under Section 166 of the

Motor Vehicles Act, 1988, claiming compensation on

account of the injuries sustained to them in an

accident on 17.07.2005 It was their case that, on

the above said date, while they were travelling in a

car bearing registration No.KL-17A-5297 from

Ernakulam to Alappuzha, a bus bearing registration

No.KL-2F-6399 (bus), driven by the 2 nd respondent in

a rash and negligent manner, hit the car. Both the MACA NOs. 178 & 179 OF 2010

appellants sustained multiple injuries. The driver of

the car named 'Nabi' lost his life instantaneously.

The bus was owned by the first respondent and

insured with the third respondent.

MACA No.178/2010

4. The appellant in MACA No.178/2010 was a

house wife, aged 29 years and was having a notional

monthly income of Rs.3000/-. She sustained a

fracture of her right radius, dislocation of her right

hip joint and a fracture of the acetabulam. She was

treated as an inpatient for a period of 25 days. She

had to undergo treatment for reduction of the pelvis,

open reduction and internal fixation for radius and

also do plastic surgery for her face. Hence, she

claimed a compensation of Rs.3,50,000/- from the

respondents.

MACA No.179/2010

5. The appellant in MACA No.179/2010 stated

that she was aged 4 years at the time of the accident MACA NOs. 178 & 179 OF 2010

and had suffered a grade IV cerebral concussion.

She was treated as an inpatient for a period of 15

days. She claimed a compensation of Rs.2,38,000/-

from the respondents, which claim was limited to

Rs.2,00,000/-.

6. The legal representatives of the deceased

driver of the car had filed OP (M.V) No.1665/2005

and the wife of the deceased driver had filed O.P.

(M.V) No.1668/2005 before the same Tribunal,

seeking compensation from the respondents.

7. The respondents 1 and 2 did not contest any

of the claim petitions.

8. The third respondent had filed separate

written statements in all the claim petitions

contending that the accident occurred due to the

negligence of the deceased - driver of the car. The

third respondent also disputed the age, income and

occupation of all the petitioners and the deceased in

the above claim petitions.

MACA NOs. 178 & 179 OF 2010

9. The Tribunal consolidated and jointly tried all

the claim petitions.

10. The petitioners in all the claim petitions

produced and marked Exts.A1 to A20 in evidence.

The hospital records were summoned and marked as

Exts.X1 and X2. The respondents did not let in any

evidence.

11. The Tribunal, after analysing the pleadings

and materials on record, allowed O.P.(M.V)

No.1666/2005, by permitting the appellant in MACA

No.178/2010 to recover from the third respondent

an amount of Rs.1,16,200/-. Likewise the Tribunal

allowed O.P.(M.V.)No1354/2006 in part, by

permitting the appellant in MACA No.179/2010 to

recover from the third respondent an amount of

Rs.75,000/-.

12. Dissatisfied with the quantum of

compensation awarded in the two claim petitions,

the petitioners have preferred the above appeals. MACA NOs. 178 & 179 OF 2010

13. Heard; Sri. A.S. Benoy, the learned counsel

appearing for the appellants/petitioners in the two

appeals and Sri. Titus Mani, the learned counsel

appearing for the 3rd respondent/insurer in both the

appeals.

14. The question that arises for consideration in

both the appeals is whether the quantum of

compensation awarded by the Tribunal is reasonable

and just.

Negligence and Liability

15. Ext.A5 final report filed by the Mararikulam

Police in Crime No.220/2005 substantiates the fact

that the accident occurred due to the negligence of

the 2nd respondent. Indisputably, the 1st respondent

was the owner and the 3 rd respondent was the

insurer of the bus. The respondents have not let in

any evidence to discredit Ext.A5 final report. The 3 rd

respondent has also not proved that the 1 st

respondent had violated the insurance policy

conditions. Therefore, the 3rd respondent is to

indemnify the liability of the 1 st respondent arising MACA NOs. 178 & 179 OF 2010

out of the accident.

MACA No.178/2010

16. The appellant in MACA No.178/2010 had

contended that she was a house wife and was

earning a notional monthly income of Rs.3000/-.

However, the Tribunal fixed the income at Rs.2500/-.

17. In Rajendra Singh V. National Insurance

Company Ltd [2020 (4) KLT 6(SC)], the Honourable

Supreme Court has fixed the notional monthly

income of a house wife at Rs.5000/- per month.

18. Taking into account the ratio in the afore-

cited decision, and considering the fact that the

appellant had claimed a notional monthly income of

Rs.3000/-, I re-fix the notional monthly income of the

appellant at Rs.3000/-.

Loss of earnings

19. The Tribunal has held that the appellant was

indisposed for a period of five months, I confirm the

said finding. However, in view of the re-fixation of

the notional monthly income of the appellant at

Rs.3000/-, I award her a further amount of Rs.2500/- MACA NOs. 178 & 179 OF 2010

under the head 'loss of earnings'.

By-stander expenses and extra nourishment.

20. It is on record that the appellant was

treated as an inpatient for a period of 25 days.

The Tribunal awarded an amount of Rs.3750/-

towards 'by-stander expenses' and Rs.1500/-

towards 'extra nourishment'. On a consideration

of the fact that the accident occurred in the year

2005, I award the appellant, a further amount of

Rs.3750/- under the head 'extra nourishment' i.e.

Rs.300/- per day for a period of 25 days. Similarly,

I award the appellant an amount of Rs.2250/-

towards extra nourishment i.e. Rs.150/- per day

for a period of 25 days

Pain and suffering and loss of amenities.

21. The appellant had sustained three

fractures and was treated as an inpatient for a

period of 25 days. She was also indisposed for a

period of five months. Therefore, I award her a

further amount of Rs.10,000/- under the head

'pain and sufferings' and Rs.12,000/- under the MACA NOs. 178 & 179 OF 2010

head 'loss of amenities'.

22. With respect to the other heads of claim,

I find that the Tribunal has awarded reasonable

and just compensation.

23. Therefore, I allow MACA No.178/2010 by

permitting the appellant to recover from the third

respondent a further amount of Rs.30,500/-

(Rs.2500/- towards loss of earnings, Rs.3750/-

towards by-stander expenses, Rs.2250/- towards

'extra nourishment', Rs.10,000/- towards pain and

sufferings and Rs.12,000/- towards loss of

amenities.) with interest at the rate of 7% per

annum from the date of petition till the date of

realisation, after deducting interest for a period of

255 days i.e. the period of delay in filling the

appeal and as ordered by this Court on 23.09.2021

in C.M.Application No.197/2010, and a cost of

Rs.5000/-. The third respondent is ordered to

deposit the enhanced compensation with interest

on the said amount and cost within a period of MACA NOs. 178 & 179 OF 2010

sixty days from the date of receipt of a certified

copy of the judgment. Immediately on the

compensation amount being deposited, the same

shall be disbursed to the appellant/petitioner in

accordance with law.

MACA No.179/2010

24. The appellant had claimed that she was a

four year old child and was treated as an inpatient

for a period of 15 days.

25. On a re-appreciation of the pleadings and

materials on record, I find that the Tribunal has

awarded reasonable and just compensation.

Nevertheless, I find that the Tribunal has omitted

to grant the appellant any amount under the head

'extra nourishment'. As the appellant was a minor

at the time of accident, I award her an amount of

Rs.4500/- under the head 'extra nourishment' at

the rate of 100/- for a period of 45 days and a

further amount of Rs.5000/- towards 'loss of

amenities'.

MACA NOs. 178 & 179 OF 2010

In the result, I allow MACA No.179/2010, by

enhancing the compensation by a further amount

of Rs.9500/- with interest at the rate of 7% per

annum from the date of petition till the date of

realisation, after deducting interest for a period of

262 days, i.e the period of delay in filing the

appeal and as ordered by this Court on 24.09.2021

in C.M.Appln. No.1/2010, and a cost of Rs.3000/-.

The third respondent is ordered to deposit the

enhanced compensation with interest and cost

before the Tribunal within a period of 60 days

from the date of receipt of a certified copy of this

judgment. Immediately on the compensation

amount being deposited, the Tribunal shall,

disburse the same to the appellant in accordance

with law. With the above enhancements, the

appeals are disposed of.

Sd/-

C.S.DIAS JUDGE rmm/17.01.2022