Alias @ Agnes v. Rajesh M.P., Balakrishnan and Oriental Insurance Company Ltd. (MACA No.1326 of 2009)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 4[TH] DAY OF AUGUST 2021 / 13TH SRAVANA, 1943 MACA NO. 1326 OF 2009** **AGAINST THE AWARDT IN OP(MV)NO. 1338/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA** ## **APPELLANT/PETITIONER IN OP(MV):** **ALIAS @ AGNES, W/O.JACOB, 'CHALINKAL, VADAICANAL WARD, ALAPPUZHA.** **BY ADV SRI.P.V.BABY** ## **RESPONDENTS/RESPONDENTS IN OP(MV):** 1 **RAJESH M.P, KUZHIKADU HOUSE, KOTHAKULANGARA, ANGAMALY P.O.** 2 **BALAKRISHNAN, S/O.KUNJUNNI, THUMBARATHY VEEEDU, MAMPRA DESOM, KALLOOR THEKKUM MURI VILLAGE, KORATTI P.O., THRISSUR** 3 **M/S ORIENTAL INSURANCE COMPANY LTD., CHALAKUDY P.O.** **BY ADV.SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1326 of 2009 _2_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 1326 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4[th] day of August, 2021 ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.1338 of 2002 on the file of the Motor Accidents Claims Tribunal, Alappuzha. The respondents in the appeal were the respondents before the Tribunal. 2. The concise facts, relevant for the determination of the appeal, are: on 07.03.2002, while the appellant was walking through the side of the Pongam – Mambra road, a Scooter bearing registration No.KL 7/B 9084 driven by the 2[nd] respondent in a rash and negligent manner hit the appellant. The appellant sustained serious injuries, including an head injury and a fracture of the left clavicle. She was treated as an in-patient at the St.James Hospital, Chalakudy and, thereafter, at the Ernakulam Medical Centre. The Scooter was owned by MACA No.1326 of 2009 _3_ the 1[st] respondent and insured with the 3[rd] respondent. The appellant was a manual labourer and earning a monthly income of Rs.3,000/-. The appellant also sustained a permanent disability. Hence, the appellant claimed a total compensation of Rs.1,35,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 4. Although, the 3[rd] respondent entered appearance, they did not file any written statement. 5. The appellant produced and marked Exts.A1 to A13 and Ext.C1 disability certificate in evidence. 6. The Tribunal, after evaluating the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to realise an amount of Rs.98,500/- 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.1,000/- from the 3[rd] respondent. MACA No.1326 of 2009 _4_ 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner/appellant is in appeal. 8. Heard Sri. A.N.Santhosh, the learned counsel for the appellant/petitioner and Smt.K.S.Santhi, the learned counsel appearing for the 3[rd] respondentinsurance company. 9. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 10. Ext.A4 charge-sheet filed by the police after investigation proves that the accident occurred solely on account of the negligence of the 2[nd] respondent. Undisputedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the vehicle. Therefore, it is the 3[rd] respondent who is to indemnify the 2[nd] respondent of his liability to pay compensation. 11. The appellant had claimed that she was a MACA No.1326 of 2009 _5_ manual labourer by profession and earning a monthly income of Rs.3,000/- . The Tribunal fixed the notional income of the appellant at Rs.1,500/- per month. 12. In _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [ _(2011) 13 SCC 236_ ], the Hon'ble Supreme Court has fixed the notional income of a Coolie worker in the year 2004, at Rs.4,500/- per month. ## **Notional income** 13. Following the ratio in the afore-cited decision and considering the fact that the accident occurred in the year 2002, I am of the opinion that the appellant's notional income has to be fixed as claimed in the claim petition at Rs.3,000/- per month. ## **Loss of earnings** 14. It is accepted by the Tribunal in view of Ext.A5 wound certificate, Ext.A7 discharge card and Ext.C1 disability certificate that the appellant was indisposed MACA No.1326 of 2009 _6_ for a period of six months. 15. In view of the re-fixation of the notional income of the appellant at Rs.3,000/- per month, I re-fix the compensation for 'loss of earnings' at Rs.18,000/, instead of Rs.9,000/- awarded by the Tribunal. ## **Loss due to disability** 16. The disability of the appellant was assessed by the T.D. Medical College Hospital, Alappuzha, by a duly constituted Medical Board. The Medical Board as per Ext.C1 assessed the permanent disability of the appellant at 30%. It was found that the appellant has tension type head ache as sequelac of head injury and non union fracture of the clavicle (left) with 90% rigidity. 17. The Tribunal, for the reason that the members of the Medical Board were not examined and that the appellant can work and do things without the help of any persons, scaled down the disability to 20%. MACA No.1326 of 2009 _7_ 18. In **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)], the Honourable Supreme Court has held that the disability of a person can be proved by examining the Doctor who assessed the disability or getting the disability assessed by a duly constituted Medical Board. 19. In view of the above declaration of law by the Hon'ble Supreme Court and the fact that the appellant's disability was assessed by a duly constituted three member Medical Board, I hold that there is no legal necessity to examine the members of the Medical Board in order to prove the disability assessed by them as per Ext.C1, as held by the Tribunal. 20. In **Union of India and another v. Talwinder Singh** [2012 (5) SCC 480], the Honourable Supreme Court has held that courts should not ordinarily interfere with the opinion of the Experts, and it is always advisable for the courts to leave the decision to the Experts who are more familiar with the issue rather MACA No.1326 of 2009 _8_ than expressing its general opinion 21. In the light of the fact that the Medical Board by Ext.C1 has assessed the permanent disability of the appellant at 30% and has found that she has a non union fracture of the clavicle (left) with 90% rigidity and also has a tension type head ache and further that she is a manual labourer by profession, I am of the firm opinion that the disability assessed by the Medical Board at 30% ought not to have been interfered with by the Tribunal by scaling it down by 10%. Therefore, I set aside the finding and re-fix the permanent disability of the appellant at 30% as per Ext.C1. ## **Multiplier** 22. As the appellant was aged 45 years on the date of accident, the relevant multiplier is '14' as laid down in **Sarala Varma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802]. Hence, the multiplier adopted by the Tribunal at '13' is MACA No.1326 of 2009 _9_ erroneous and is re-fixed at '14'. ## **Loss due to disability** 23. Taking into account the above-mentioned factors namely, income of the appellant at Rs3,000/-, her disability at 30% and multiplier at '14', I re-fix the compensation for 'loss due to disability' at Rs.1,51,200/instead of Rs.46,800/- fixed by the Tribunal. ## **Loss of amenities** 24. It is on record as per Ext. C1 disability certificate that the appellant has suffered a permanent disability at 30%. She also sustained an head injury with fracture of left clavicle. She was treated as an in-patient at two hospitals. Taking note of the of the above factors, I re-fix the compensation for 'loss of amenities' at Rs.20,000/- instead of Rs.2,000/- awarded by the Tribunal. ## **Other heads of claim** 25. With respect to the other heads of MACA No.1326 of 2009 _10_ compensation, I find that the Tribunal has awarded reasonable and just compensation. 26. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decision, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl.<br>No|Heads of claim|Amount awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earning|9,000/-|18,000/-| |2|Transport|2,500/-|2,500/-| |3|Damages to clothing|300/-|300/-| |4|Bye-stander expenses|1,500/-|1,500/-| |5|Expenses for extra nourishment|400/-|400/-| |6|Medical expenses|21,000/-|21,000/-| |7|Compensation for pain and<br>sufferings|15,000/-|15,000/-| |8|Compensation for loss of<br>amenities|2,000/-|20,000/-| |9|Loss due to disability|46800|1,51,200| |||98,500/-|2,29,900/-<br>rounded of to<br>Rs,2,30,000/-| MACA No.1326 of 2009 **==> picture [14 x 8] intentionally omitted <==** In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.1,31,500/- with interest at the rate of 7.5% per annum on the enhanced compensation, from the date of petition till the date of deposit, after deducting 168 days, i.e. the period of delay in preferring the appeal and as ordered by this Court on 30.03.2021 in C.M.Appl.No.1510 of 2009, and proportionate costs. The 3[rd] respondent is ordered to deposit the enhanced compensation awarded in this appeal before the Tribunal with interest and proportionate costs within a period of sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellant, in accordance with law. **Sd/- C.S.DIAS,JUDGE** **dlk 4.8.2021**