Annakody v. Motor Accidents Claims Tribunal, Pala, and ors.

1 MACA No.1837 of 2011 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 1[ST] DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943 MACA NO. 1837 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 698/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA, KOTTAYAM** ## **APPELLANT/S:** ANNAKODY,W/O.GURUSWAMY PUTHENVEEDU HOUSE,, VALLAKADAVU KARA, PERIYAR VILLAGE,, NOW RESIDING AT PARACKATTU HOUSE,, VALLICHIRA KARA AND VILLAGE. BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY 1 SIVANKUNJU, S/O.NARAYANAN CHAMPION MOTORS, MUNDAKKAYAM. 2 E.C. VARGHESE, ELAVUMMOOTTIL HOUSE NALUNNACKAL.P.O, VAKATHANAM, KOTTAYAM. 3 THE BRANCH MANAGER,ORIENTAL INSURANCE COMPANY LTD. BRANCH OFFICE, P.B. NO.8,, JYOTHI SUPER BAZAR,THODUPUZHA. BY ADVS. K.S.SANTHI SMT.V.GEETHA ## **RESPONDENT/S:** THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No.1837 of 2011 ## **C.S.DIAS, J.** ## **====================== MACA No.1837 of 2011** ## **====================== Dated this the 1[st] day of September, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.698/2006 on the file of the Motor Accidents Claims Tribunal, Pala. The respondents in the appeal were the additional respondents 7 to 9 before the Tribunal. The respondents, 1,2 and 3 before the Tribunal, the driver, owner and insurer of the Jeep, and the additional respondents 4 to 6, the legal representatives of the deceased second respondent, are not impleaded as parties in the appeal. Therefore, the parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming 3 MACA No.1837 of 2011 compensation on account of the injuries she sustained in a motor accident that took place on 10.2.2006. 3. The relevant facts in the claim petition, for the determination of the appeal, are: On 10.2.2006 while the appellant was travelling in a Jeep bearing registration No.KL-7/D-3703 (Jeep) through the National Highway 220, a bus bearing registration No.KL-5/R 1048 (bus) came from the opposite direction hit on the Jeep. The appellant sustained serious injuries and was treated as an inpatient for a period of 19 days at the Taluk Headquarters Hospital, Kanjirapally and, thereafter, at the Medical College Hospital, Kottayam. The appellant was a daily labourer and earning a monthly income of Rs.3,500/-. The accident occurred due to the rash and negligent driving of the drivers of the Jeep and Bus. Therefore, the second respondent and the eighth respondent – the owners of the vehicles vicariously liable to pay the compensation. Consequently, it was their insurers, namely, the third 4 MACA No.1837 of 2011 respondent and ninth respondent who were liable to indemnify the liability of the owners of the bus and Jeep. Hence, the petitioner claimed a compensation of Rs.1,50,000/- from the respondents. 4. The respondents 1 and 2 did not contest the proceeding. The third respondent filed a written-statement contending that the Jeep was covered by an 'Act Policy'. There was no negligence on the part of the first respondent in causing the accident. It was due to the negligence of the seventh respondent that the accident occurred. Therefore, it is only the ninth respondent who was liable to pay compensation. 5. The respondents 4 to 6 filed a written-statement contending that the Jeep was validly covered by an insurance policy. There was no negligence on the part of the first respondent. 6. The ninth respondent filed a written-statement admitting that the bus had a valid insurance policy. 5 MACA No.1837 of 2011 However, it was contended that there was no negligence on the part of the seventh respondent. Hence, the ninth respondent prayed that the claim petition be dismissed. 7. The petitioner got herself and a witness examined as PWs 1 and 2 and marked Exts A1 to A12 in evidece. The ninth respondent produced Exts B1 and B2 in evidence. 8. The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claim petition in part, by permitting the petitioner to realise from the ninth respondent an amount of Rs.75,900/- with interest @ 9% per annum from the date of deposit till the date of realisaton, and costs of 2,400/-. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal 10. Heard Sri.Mathew John, the learned counsel appearing for the appellant/petitioner and Sri.George A. Cherian, the learned counsel appearing for the third respondent in the appeal/ninth respondent/insurer . 6 MACA No.1837 of 2011 11. The question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 12. Ext A6 final report filed by the Vandiperiyar Police in crime No.35/2006 before the Judicial First Class Magistrate, Peerumedu, clearly substantiates that the accident occurred due to the negligence of the seventh respondent. Undisputedly, the eighth respondent was the owner and the ninth respondent was the insurer of the bus. Therefore, it is the ninth respondent who is to indemnify the eighth respondent of his liability arising out of the accident. ## **Notional Income** 13. The petitioner had claimed that she was a daily wage labourer earning a monthly income of Rs.3,500/- . The Tribunal fixed the monthly income of the petitioner at Rs.3,000/- per month. 7 MACA No.1837 of 2011 14. The Hon'ble Supreme Court in **Ramachandrappa** **v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 15. Following the ratio in the aforecited decision and keeping in mind the fact that the accident occurred in the year 2006, I fix the notional income of the petitioner at Rs.3,500/- per month. ## **Loss of earnings** 16. In view of the refixation of the notional income of the petitioner at Rs.3500/- per month, I fix the loss of earnings at Rs.7,000/- instead of Rs.6,000/- awarded by the Tribunal. ## **Loss due to disability** 17. The petitioner had produced Ext A9 medical certificate issued by a Consultant Orthopedic Surgeon, who has certified that as the right elbow of the petitioner is 8 MACA No.1837 of 2011 ankylosed in 90 degrees and her right shoulder abduction is restricted to 110 degrees, the petitioner's permanent disability for the above injuries is assessed at 17% as per Mc Bride's Scale Page 69 and 75. Nevertheless, the Tribunal after going through Mc Bride's Composite Schedule of Representative Disabilities ad Graded Ratings, fixed the disability of the petitioner at 8%. 18. Undisputedly Ext A9 certificate was marked without any objection or subject to proof. 19. In Paragraph 12 in **Raj Kumar vs. Ajaykumar** **[2011 (1) KLT 620(SC)]** the Hon'ble Supreme Court has held that if the Tribunal is not satisfied with the disability certificate produced by the claimant/injured, then the Tribunal has to constitute a Medical Board from reputed Hospitals/Medical Colleges and refer the claimant to such Medical Board for assessment of the disability. If not, the Tribunal has to accept the certification made in the disability certificate. 9 MACA No.1837 of 2011 20. In **Union of India and another vs. Talwinder Singh [(2012) 5 SCC 480]** , the Hon'ble Supreme Court has held that the Courts should not ordinarily interfere with the opinion of experts. It would be safe for the Courts to leave the decision of the experts, who are more familiar with the problems rather than expressing its general opinion. 21. Following the ratio in **Talwinder Singh and Raj Kumar** (supra), and taking note of the fact that as per Ext A9 the petitioner's disability is fixed at 17%, I am of the firm opinion that the disability assessed in Ext A9 can be taken as the functional disability of the petitioner. Accordingly, I fix the functional disability of the petitioner at 17% as certified in Ext A9. 22. Consequently, as the petitioner was aged 37 years as on the date of accident, her monthly income being fixed at Rs.3,500/-, and the relevant multiplier being 15, I refix the compensation for loss due to disability at Rs.1,07,100/- 10 MACA No.1837 of 2011 instead of Rs.38,400/- awarded by the Tribunal. ## **Pain and sufferings** 23. The appellant had claimed an amount of Rs.50,000/- under the head pain and sufferings. The Tribunal awarded an amount of Rs.18,000/- under the said head. 24. Taking into account the serious injuries sustained by the petitioner and that she was indisposed for a period of 19 days and has sustained a disability at 17%, I hold that the compensation under the above head has to be fixed at Rs.25,000/-, that is to award an enhancement by Rs.7,000/-. ## **Bystander expense** 25. It is on record that the petitioner was treated as inpatient for a period of 19 days. The Tribunal only awarded an amount of Rs.1,500/- towards bystander expenses, which according to me is on the lower side. Therefore, I re-fix the bystander expenses at Rs.200/- per 11 MACA No.1837 of 2011 day for a period of 19 days. Accordingly, I refix the compensation under the said head at Rs.3,800/-, instead of Rs.1,500/- awarded by the Tribunal. ## **Other heads of claim** 26. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 27. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I am of the firm opinion that the appellant is entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Medical Expenses|500/-|500/-| |2|Loss of earnings|6,000/-|7,000/-| |3|Bystander expenses|1,500/-|3,800/-| 12 MACA No.1837 of 2011 |4|Extra nourishment|250/-|250/-| |---|---|---|---| |5|Damage to clothing|250/-|250/-| |6|Transport to hospital|2,000/-|2,000/-| |7|Pain and sufferings|18,000/-|25,000/-| |8|Permanent<br>disability<br>resulting in loss of earning<br>capacity|38,400/-|1,07,100/-| |9|Loss of amenities|9,000/-|9,000/-| ||Total|75,900/-|1,54,900/-| In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.79,000/- (Rupees Seventy Nine Thousand only) with interest at the rate of 9% per annum from the date of claim petition till the date of realisation, after deducting the period of 1026 days , i.e., the period of delay in preferring the appeal and as ordered by this Court on 4.6.2012 in C.M Appln 2762/2011, and a cost of Rs.3,000/-. The third respondent/insurer is ordered to deposit the enhanced compensation awarded in this appeal before the Tribunal together with interest and cost within a period of two 13 MACA No.1837 of 2011 months 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/-** SKS/1.9.2021 **C.S.DIAS JUDGE**