Partly allowed

V.Shahul Hameed v. K.Ganesan and Others

Kerala HC15 Nov 2021MACA/499/2009

Case brief

AI extract

What is this about?

The appellant appealed against the low quantum of compensation awarded by the Motor Accidents Claims Tribunal. The High Court enhanced the compensation by Rs. 31,000 under heads of loss of earnings, by-stander expenses, and loss of amenities, relying on Supreme Court precedents to fix notional income.

What did the court decide?

The compensation was enhanced by Rs. 31,000 with interest at 7.5% per annum and a cost of Rs. 5,000. The third respondent was ordered to deposit the enhanced amount within sixty days.

V.Shahul Hameed Vs K.Ganesan and Others — Motor Accident Claims | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C.S.DIAS

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MONDAY, THE 15^TH DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943

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MACA NO. 499 OF 2009

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AGAINST THE AWARD DATED 08.07.2008 IN OPMV 737/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD

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APPELLANT/PETITIONER:

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V.SHAHUL HAMEED, S/O VELLAPPARAWTHER MUTHAMTHODE, KUTTIPPALLAM P.O., CHITTUR TALUK, PALAKKAD DISTRICT

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BY ADV SRI.A.R.GANGADAS

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RESPONDENTS/RESPONDENTS:

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1 K.GANESAN AND OTHERS,S/O KRISHNAMURTHY 17/1, POLICE QUARTERS, POLLACHI, COIAMBATORE DISTRICT.

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2 S.ANAND KUMAR, S/O.SUBRAMANIAN 132, KOVAI ROAD, BC BANGUVALAKAM,, POLLACHI, COIMBATORE DISTRICT

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3 UNITED INDIA INSURANCE CO.LTD. POLLACHI, COIMBATORE DIST.

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BY ADV P.K.MANOJKUMAR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA NO. 499 OF 2009 2

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Dated this the 15^th day of November, 2021.

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JUDGMENT

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The appellant was the petitioner in OP(MV) 737/2003

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on the file of the Motor Accidents Claims Tribunal, Palakkad. The respondents in the appeal were the respondents before the Tribunal.

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The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 25.05.2002. It was his case that, on the aforesaid date, while he was riding his motorcycle bearing registration No. TN38 M 8637 from Udumali – Chittur via Pollachi, another motorcycle bearing registration No. TN 41 H 8464 (offending motorcycle) ridden by the 2^nd respondent in a negligent manner, hit the motorcycle of the appellant. The appellant and the pillion rider fell on the road and sustained injuries. The appellant was treated at the Sindhia Ortho Clinic, Pollachi for the period

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MACA NO. 499 OF 2009 3

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from 25.02.2005 to 15.03.2002 i.e. for a period of 23 days.

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The offending motorcycle was owned by the 1^st respondent and insured with the 3^rd respondent. The appellant sustained serious injuries including comminuted fracture of both bones of his right leg. He was a driver cum owner of a tractor and was earning a monthly income of Rs.4000/-. Hence, the appellant claimed compensation of Rs.5,10,000/- from the respondents, which was limited to Rs.3,00,000/-.

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Another injured in the same accident also filed O.P.

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(M.V) No.738/2003 before the same Tribunal.

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The respondents 1 and 2 did not contest the proceedings and were set ex parte.

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The 3^rd respondent had filed written statements in both the claim petitions, inter alia, refuting the allegations in the claim petitions. It was contended that

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the accident occurred due to the negligence of the appellant. The 3^rd respondent also disputed the age,

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MACA NO. 499 OF 2009 4

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income and occupation of the appellant.

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The Tribunal consolidated and jointly tried the two claim petitions.

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The petitioners in the two claim petitions produced and marked Exhibits A1 to A20 in evidence. The respondents did not let in any evidence.

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The Tribunal, by its common award, allowed the captioned claim petition, by permitting the appellant to realise from the 3^rd respondent an amount of Rs.70,396/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.400/-.

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Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal.

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Heard; A. R. Gangadas, the learned counsel appearing for the appellant/petitioner and Sri.P.K. Manoj Kumar, the learned counsel appearing for the third respondent/insurer.

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MACA NO. 499 OF 2009 5

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The question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just.

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Negligence and liability

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Exhibit A15 charge sheet filed by the police substantiates that the accident occurred due to the negligence of the 2^nd respondent/rider of the offending motorcycle. Admittedly, the first respondent was the owner and the 3^rd respondent was the insurer of the offending motorcycle. The 3^rd respondent has not proved that the 1^st respondent had violated the insurance policy conditions. Therefore, the 3^rd respondent is to indemnify the liability of the 1^st respondent arising out of the accident.

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Income

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The appellant had claimed that he was a owner cum driver of a tractor and he was earning a monthly income of Rs.4000/- However, the Tribunal, for the want

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MACA NO. 499 OF 2009 6

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of material, fixed the notional monthly income of the appellant at Rs.2300/-

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In Chameli Devi and others v. Jivrail Mian and others [2019 KHC 5352], the Honourable Supreme Court has fixed the notional income of a carpenter in the year 2001 at Rs.5000/- per month. Similarly, in Chandra @ Chanda v. Mukesh Kumar [LL 2021 SC 531], the Honourable Supreme Court has fixed the notional monthly income of a driver in year 2004 at Rs.6000/-.

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Following the yardsticks in the afore-cited decisions and considering the fact that the accident occurred in the year 2002, I re-fix the notional monthly income of the appellant at Rs.4000/- as claimed in the claim petition.

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Loss of earnings

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It is proved by Exhibit A2 wound certificate and A6 and A7 discharge cards that the appellant had sustained comminuted fracture of both bones of his right

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MACA NO. 499 OF 2009 7

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leg and also a fracture of MPX right F3. Being a driver by profession, I hold that the appellant was indisposed for a period of six months.

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In view of the re-fixation of the notional monthly income of the appellant at Rs.4000/-, I award the appellant an amount of Rs.24,000/- towards ‘loss of earnings’ i.e. an enhancement by an amount of Rs.21,700/- under the said head.

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By -stander expenses

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The appellant has established that he was treated as inpatient for a period of 23 days as reflected from Exhibits A6 and A7 discharge cards. The Tribunal has awarded only an amount of Rs.3,450/- towards by-stander expenses, which according to me is on the lower side. 19. Taking into account the fact that the appellant

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was treated as inpatient for a period of 23 days, I award him an amount of Rs.250/- per day, which amount to Rs.5750/-, i.e., an enhancement by an amount of

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MACA NO. 499 OF 2009 8

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Rs.2300/-.

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Loss of amenities

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The appellant had claimed an amount of Rs.10,000/- towards ‘loss of amenities’. However, the Tribunal has awarded only an amount of Rs.3000/- under the said head.

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Keeping in mind the fact that the appellant was treated as inpatient for a period of 23 days and he was indisposed for a period of six months, I award him a further amount of Rs.7000/- under the said head.

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With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation.

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In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.31,000 /- (i.e. Rs.21,700/- towards loss of earnings, Rs.2,300/- by-stander expenses and Rs.7000/- towards loss of amenities)with interest at the rate of 7.5% per

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MACA NO. 499 OF 2009 9

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annum, from the date of petition till the date of deposit, and a cost of Rs.5000/-. The third respondent is ordered

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to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the enhanced compensation amount being deposited, the Tribunal shall disburse the same to the appellant in accordance with law.

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Sd/- C.S.DIAS, JUDGE

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rmm15/11/2021

V.Shahul Hameed v. K.Ganesan and Others

Case brief

What is this about?

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V.Shahul Hameed v. K.Ganesan and Others

Case brief

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What did the court decide?

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