Aleyamma John v. T.V. John, Sojan Mathew and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 29TH DAY OF JUNE 2016/8TH ASHADHA, 1938** **MACA.No. 2066 of 2011 ( ) --------------------------** ## **AGAINST THE AWARD IN OPMV 1435/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOTTAYAM DATED 05-09-2011** ## **APPELLANT(S)/PETITIONER:** ## **-----------------------** **ALEYAMMA JOHN, KOTTACKAL (H), KOTHALA (PO),, PAMPADY, KOTTAYAM DISTRICT.** **BY ADVS.SRI.M.V.THAMBAN SRI.B.BIPIN SRI.R.REJI SMT.REVATHY P.NAIR SMT.THARA THAMBAN** ## **RESPONDENT(S)/RESPONDENTS:** **--------------** **1. T.V.JOHN, THEKKANATTU HOUSE, NEAR HOSPITAL, THOTTAKAD (PO),686 539** ## **2. SOJAN MATHEW,** ## **KUNNATHU HOUSE, PUTHIYAPALAM BHAGOM,, KANCHIYAR (PO), IDUKKI-685 511.** ## **3. THE NEW INDIA ASSURANCE CO.LTD.,** ## **KOTTAYAM-686 001.** **R3 BY ADV. SRI.P.K.BABU R BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2066 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of June, 2016** ## **J U D G M E N T** ## **C.T. Ravikumar, J.** The injured appellant preferred this appeal seeking enhancement of the compensation granted by the Motor Accidents Claims Tribunal, Kottayam by its judgment dated 5.9.2011 in O.P.(M.V.)No.1435/2008. She moved the said claim petition seeking compensation for the injuries sustained by her in a motor vehicle accident occurred on 1.2.2008. On that day at about 11.15 a.m. she was boarding a bus bearing registration No.KL 5/J 7530 driven by the second respondent. Hardly she stepped into the bus the second respondent took up the bus in a rash and negligent manner. Consequently, the appellant fell down from the bus and sustained grievous injuries. She was immediately taken to the Medical College Hospital, Kottayam and thereafter admitted at Pushpagiri Medical College Hospital, Thiruvalla. Altogether she had been an inpatient for a period of 41 days. In the accident, going by Ext.A6 M.A.C.A.No.2066 of 2011 2 discharge certificate, she sustained a fracture on the neck of femur of the left leg. As part of treatment, an implantation was done. It is in the said circumstances, she moved a claim petition seeking a total compensation of Rs.3 lakhs under Section 166 of the Motor Vehicles Act. To establish the claim, the appellant got herself examined as PW1 besides getting marked Exts.A1 to A15. The respondents did not adduce any evidence, either oral or documentary. Ext.X1 is the court document which is the disability certificate issued by a duly constituted Medical Board attached to the Medical College Hospital, Kottayam for assessing he disability, if any, of the appellant. The Tribunal granted a total compensation of Rs.1,20,146/- with interest at the rate of 7.5% from the date of petition till realisation along with a cost of Rs.1200/-. It is aggrieved by and dissatisfied with the quantum of compensation that the captioned appeal has been preferred. 2. Evidently the Tribunal found that the second respondent who was driving the vehicle at the relevant M.A.C.A.No.2066 of 2011 3 point of time was negligent and the accident occurred solely due to his negligence. The first respondent who is the owner of the bus was found vicariously liable and the third respondent, the insurer of the offending vehicle was found liable to indemnify the first respondent. Despite such findings of the Tribunal, none of the respondents preferred any appeal against the aforementioned award. In such circumstances, the finding of the Tribunal that the accident caused due to the negligence on the part of the second respondent invites no interference. The insurance coverage of the offending vehicle at the time of the accident is not at all in dispute. In other words, the sole question to be considered in this appeal is whether or not the appellant is entitled to get enhanced compensation under any head. 3. The main grievance of the appellant is regarding the fixation of the monthly income for the purpose of calculating compensation for the permanent disability incurred by her. In that regard, she got a further grievance also relating the assessment of disability by the Tribunal as M.A.C.A.No.2066 of 2011 4 9% despite the certification of permanent disability as 12% by the Medical Board under Ext.X1. The appellant also has grievances against the quantum of compensation granted under the heads extra nourishment, damage to clothings, loss of earning, pain and sufferings, loss of amenities. According to the counsel they are all on the lower side. The learned counsel for the appellant contended that in such circumstances an upward modification of the amounts granted under such heads is required. 4. The learned counsel for the appellant submitted that in the light of Ext.A9 which is the copy of the identity card of the petitioner issued by the Kerala Tailoring Workers Welfare Fund Board, Kannur there can be no dispute regarding the occupation of the appellant. We see force in the said contention. The specific averment in the claim petition is that the appellant is a tailor by profession and was earning Rs.6,000/- per month. The fact that she was a tailor by profession is very much evident from Ext.A9. So also, the aforesaid fact discernible from Ext.A9 has not 5 M.A.C.A.No.2066 of 2011 been controverted by the respondents. But then, the appellant had not adduced any evidence to establish her income. In such circumstances, the appellant cannot be teated as a housewife and when her avocation is taken as tailor and no evidence is forthcoming regarding the income it has to be fixed taking note of some relevant aspects. The appellant was aged 59 years on the date of the accident and that the accident occurred on 1.2.2008. In the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** in respect of a coolie who met with an accident in the year 2004 the Apex Court took the monthly income notionally at Rs.4,500/- for calculation purpose. Taking into account all such aspects, we are of the view that it is only appropriate to fix the monthly income of the appellant notionally at Rs.5,000/- for calculation purpose. Regarding the grievance of the appellant against the assessment of permanent disability it is to be noted that under Ext.X1, the duly constituted M.A.C.A.No.2066 of 2011 6 Medical Board assessed the permanent disability incurred by the appellant due to the accident as 12%. The said assessment was made by the Medical Board after the appellant was referred before the Board by the Tribunal. It is evident from Ext.X1 disability certificate that owing to the accident she had incurred a disability which is terminal 30% and all the hip movements got restricted. It is taking note of such aspects that the Medical Board certified the permanent disability incurred by the appellant as 12%. A perusal of the impugned judgment and award would reveal that no reason whatsoever was given for declining to accept the entire percentage of permanent disability certified by the Medical Board. We do not find any reason to interfere with the certification made by the duly constituted Medical Board. In such circumstances, we are inclined to accept the entire percentage of permanent disability certified by the Medical Board for the purpose of calculating compensation payable to the appellant for having incurred permanent disability, due to the accident. M.A.C.A.No.2066 of 2011 7 5. The learned counsel for the appellant contended that the Tribunal erred in taking the multiplier as 8. In the light of the schedule given in the decision of the Hon'ble Apex Court in **Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)** the multiplier to be adopted for the age group '56-60 years' is 9. In this case, the appellant was aged 59 years at the time of accident. In the said circumstances, the appellant belongs to the age group 56-60 years and therefore, going by the decision in Sarla Varma's case, the multiplier to be adopted is 9. In the said circumstances, the compensation payable for the permanent disability incurred by the appellant has to be reassessed with the modified multiplicand, multiplier and the enhanced percentage of disability. On such reassessment, the appellant would be entitled to get an amount of Rs.38,880/- additionally (5000X12x12x9/100 = 64800 - 25920). Towards extra nourishment the appellant was granted only an amount of Rs.1,500/-. Evidently, the Tribunal took note of the fact that the appellant had been an M.A.C.A.No.2066 of 2011 8 inpatient for a period of 41 years. Taking note of the fact that the accident occurred in the year 2008 we are of the view that the rate of extra nourishment ought to have been Rs.100/- per day. Therefore, the appellant who had been an inpatient for a period of 41 days, is entitled to get an amount of Rs.2,600/- additionally. Towards damage to clothings the appellant was granted only an amount of Rs.500/-. No doubt, the nature of the injuries that resulted in permanent disability would indicate that the dresses worn by her must have been damaged. Therefore, we are inclined to grant Rs.500/- more under that head. Towards loss of earnings, in view of the fact that we have modified the monthly income of the appellant as Rs.5,000/- for the same period reckoned by the Tribunal viz. 5 months, the appellant would be entitled to get an amount of Rs.10,000/more. Towards pain and suffering the Tribunal granted an amount of Rs.18,000/- as against a claim of Rs.50,000/-. We have already taken note of the nature of the injuries sustained by the appellant in the accident as also the period M.A.C.A.No.2066 of 2011 9 of hospitalization. Going by the nature of the injuries it is evident that the appellant must have experienced in excruciating pain. In such circumstances, according to us, the appellant is entitled to get an amount of Rs.30,000/-. Hence, an amount of Rs.12,000/- more is awarded. Towards loss of amenities an amount of Rs.12,000/- was granted by the Tribunal. It is evident from Ext.X1 that the fracture of femur failed to get united. In other words, there is non union fracture on femur. The non union fracture is on the head of femur. In the light of these circumstances there cannot be any doubt with respect to the fact that the appellant who was aged 59 years would not be in a position to enjoy her life as before and she will continue to experience difficulties and inconveniences in her future life as well. In such circumstances, it cannot be said that the appellant would be adequately compensated under that head. We are of the view that the appellant is entitled to get Rs.13,000/- additionally under that head. In view of the aforesaid reassessment under different heads, the appellant M.A.C.A.No.2066 of 2011 10 would be entitled to get an additional compensation of Rs.76,980/- which is rounded off to Rs.77,000/- (Rupees seventy seven thousand only). 6. The enhanced amount of Rs.77,000/- will carry interest at the rate of 8% per annum from the date of petition till realization. The third respondent is directed to deposit the enhanced amount within a period of two months from the date of receipt of a copy of this judgment, failing which, the amount remaining to be paid will carry interest at the rate of 9%. The parties shall bare their respective costs. Sd/- **C.T. RAVIKUMAR** **JUDGE** Sd/- **K.P. JYOTHINDRANATH** **JUDGE** //True copy// P.A. TO JUDGE shg/