Ayisha v. National Insurance Company

1 MACA No.2076 of 2013 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 24[TH] DAY OF JUNE 2021 / 3RD ASHADHA, 1943 MACA NO. 2076 OF 2013** **AGAINST THE ORDER/JUDGMENT IN OPMV 1148/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI, MALAPPURAM** **APPELLANT/S:** AYISHA AGED 46 YEARS W/O MOHAMMED, KOLAPPETTA, THENJEERI HOUSE, PUVATHIKKAL PO, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADVS. SRI.P.SAMSUDIN SMT.NIMA JACOB ## **RESPONDENT/S:** NATIONAL INSURANCE COMPANY IVTH FLOOR, PARCO TOWER, P.M.TAJ ROAD, KOZHIKODE DISTRICT - 673 001. BY ADV SMT.P.K.SANTHAMMA ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2076 of 2013 ## **C.S.DIAS, J.** ## **====================== MACA No.2076 of 2013** **====================== Dated this the 24[th] day of June, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) 1148/2010 on the file of the Motor Accidents Claims Tribunal, Manjeri. The respondent in the appeal was the third respondent in the claim petition. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The relevant facts in the claim petition, for the determination of the appeal are: On 12.11.2009 while the petitioner was walking on the Pookottuchola road, a motor cycle bearing registration No.KL-57B/1166, ridden by the first respondent and owned by the second respondent and insured with the third respondent, hit the petitioner. The petitioner sustained serious injuries and was treated at the District Hospital, Manjeri from 12.11.2009 to 11.12.2009 3 MACA No.2076 of 2013 for a period of 29 days. The petitioner sustained a fracture on ulna right and bimalleolar fracture on the right leg. The accident occurred solely due to the rashness on the part of the first respondent. As the vehicle was owned by the second respondent and insured with the third respondent, the third respondent was liable to indemnify the petitioner for the loss sustained by her. The petitioner claimed that she was a manual labourer earning a monthly income of Rs.6,000/-. Hence, she claimed a total amount of Rs.1,50,500/-, which was limited to Rs.1,50,000/-. 3. The first and second respondents did not contest the proceedings and were set ex parte. 4. The third respondent filed a written statement admitting that the vehicle was insured with it. However, it was contended that the accident occurred solely due to the negligence on the part of the petitioner. 5. The petitioner produced and marked Exts A1 to A7 in evidence. The report of the District Medical Board, 4 MACA No.2076 of 2013 Government General Hospital, Manjeri was marked as Ext X1. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by directing the third respondent to pay an amount of Rs.58,921/- with interest at the rate of 9% per annum from the date of petition till the date of realization along with proportionate costs. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent – Insurance Company. 9. The sole question that emanates for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 10. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay** 5 MACA No.2076 of 2013 **Sethi [(2017) 16 SCC 680],** has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation', and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 11. Ext A1 FIR substantiates that the accident was caused due to the negligence of the first respondent who rode the motor cycle in a rash manner. Undisputedly, the second respondent was the owner of the vehicle and the third respondent was the insurer of the vehicle. Ext A2 wound certificate and Ext A5 discharge summary substantiates that the petitioner sustained injuries due to the accident and she was hospitalized for a period of 29 days. Ext X1 report of the Medical Board proves that the petitioner has a permanent locomotor disability of 9%. 6 MACA No.2076 of 2013 12. The principal area of dispute in the appeal is with regard to the notional income of the petitioner fixed by the Tribunal. 13. The petitioner had claimed that she was a daily wage labourer earning a monthly income of Rs.6,000/-. However, the Tribunal fixed her notional income at Rs.3,000/- per month. 14. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month and that of a vegetable vendor in the year 2008 at Rs.6,500/- per month, respectively. 15. Following the parameters laid down by the Hon'ble Supreme Court in the aforecited decisions and considering the fact that the petitioner was found to be 7 MACA No.2076 of 2013 aged 48 years, as per Exts A3 and A5, and that she was a daily wage labourer, I am of the considered opinion that the petitioner's notional income can safely be fixed at Rs.6,000/- per month as claimed in the claim petition. Hence, I fix the petitioner's notional income at Rs.6,000/per month. ## **Loss of earnings** 16. It was found that the petitioner was disabled from carrying on her avocation for a period of three months due to the injuries sustained by her. I concur with the findings of the Tribunal with regard to the period of disablement. Accordingly, in view of the refixation of the notional income of the petitioner, I refix the loss of earnings of the petitioner at Rs.18,000/- instead of Rs.9,000/- fixed by the Tribunal. ## **Pain and sufferings** 17. Although the petitioner had claimed an amount of Rs.30,000/- as compensation under the head pain and 8 MACA No.2076 of 2013 sufferings, the Tribunal awarded only an amount of Rs.10,000/-. Undisputedly, the petitioner had suffered two fractures and was hospitalized for a period of 29 days. She was also underwent a surgery and that she has suffered a permanent locomotor disability of 9%. Considering the above aspects, I am of the opinion that the compensation under the above head has to be enhanced by a further amount of Rs.10,000/-. Therefore, I refix the compensation under the head 'pain and sufferings' at Rs.20,000/-. ## **Bystander expenses** 18. The Tribunal fixed the bystander expenses at Rs.2,900/- i.e., Rs.100/- per day, which according to me is too meagre. Considering that the accident took place in the year 2009, I hold that compensation under the head bystander expenses has to be fixed at Rs.200/- per day. Accordingly, I enhance the compensation under the said head at Rs.5,800/- instead of Rs.2,900/-. 9 MACA No.2076 of 2013 ## **Loss of earnings (partial)** 19. It is seen that the Tribunal has awarded an amount of Rs.3,000/- under the head loss of earnings (partial) for a period of two months. According to me the said compensation is unsustainable in law because after the petitioner was found to be incapacitated only for a period of three months, there is no question of awarding further compensation under the head loss of earnings (partial). Hence, I set aside the amount awarded under the said head. ## **Other heads of claim** 20. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation, including the medical expenses on the basis of the medical bills. 21. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court in the afore-cited precedents, I am of the 10 MACA No.2076 of 2013 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 awarded<br>by the Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Loss of earnings (total)|9,000/-|18,000/-| |2|Loss of earnings (partial)|3,000/-|Nil| |3|Medical and miscellaneous<br>expenses|13,021/-|13,021/-| |4|Bystander expenses|2,900/-|5,800/-| |5|Transportation expenses|750/-|750/-| |6|Damage to clothing|250/-|250/-| |7|Pain and sufferings|10,000/-|20,000/-| |8|Loss of amenities|Nil|5,000/-| |9|Loss due to disability|20,000/-|84,240/-| ||Total|58,921/-|1,47,061/-| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.88,140/- (Rupees Eighty Eight Thousand One Hundred and Forty only) with interest at the rate of 9% per annum from the date of claim petition till the date of realisation on the enhanced compensation with proportionate costs. The third respondent shall deposit the enhanced 11 MACA No.2076 of 2013 compensation awarded in this appeal before the Tribunal together with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The appellant/petitioner would be at liberty to move the Tribunal for the withdrawal of the deposited amount. **Sd/-** **C.S.DIAS** SKS/24.6.2021 **JUDGE**