Baby v. P.P. Davis, Simon & United India Insurance Co. Ltd.

MACA.No.1927/2013 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _WEDNESDAY, THE 14[TH] DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945 MACA NO. 1927 OF 2013_ _AGAINST THE ORDER/JUDGMENT OPMV 1421/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL & SPECIAL COURT FOR E.C. ACT CASES, THRISSUR APPELLANT/PETITIONER:_ _BABY,_ _W/O.LATE LUIS, NEYYAN HOUSE, P.O CHITTILAPPILLY, THRISSUR DISTRICT._ _BY ADV.SRI.P.V.CHANDRA MOHAN_ ## _RESPONDENTS/RESPONDENTS:_ - _1 P.P.DAVIS, S/O.PORINCHU,PARENGADAN HOUSE, P.O CHITTILAPPILLY, THRISSUR DISTRICT._ - _2 SIMON, S/O.PORINCHU,PARENGADAN HOUSE, P.O CHITTILAPPILLY, THRISSUR._ - _3 UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, THRISSUR. BY ADVS. SMT.R.REMA SRI.V.BINOY RAM_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1927/2013 2 ## **JUDGMENT** The appellant was the petitioner in O.P.(MV).No.1421 of 2002 on the files of the Motor Accident Claims Tribunal, Thrissur. The said claim petition was submitted by her seeking compensation for the injuries sustained in a motor accident that occurred on 07.10.2001. 2. The accident occurred when the appellant was walking through the road, she was knocked down by an autorickshaw bearing registration No.KL-11 6808, driven by the 2[nd] respondent in a rash and negligent manner. The 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the said autorickshaw. The appellant was aged 54 years at the time of the accident and was a coolie with a monthly income of Rs.3,000/-. In the accident, she sustained very serious injuries which resulted in physical disability as well. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent alone contested the matter by filing a written statement wherein they admitted the coverage of policy over the said vehicle. However, it was contended that the 2[nd] MACA.No.1927/2013 3 respondent was driving the vehicle without a valid driving licence. They disputed the quantum of compensation also. 4. The said claim petition was tried along with two other claim petitions which arose from the very same accident. The evidence in these claim petitions consists of Ext.A1 to A17 from the side of the claimants and Exts.B1 and B2 were marked from the side of the respondents. After the trial, the Tribunal arrived at the conclusion that the accident occurred due to the negligence of the 2[nd] respondent and being the insurer, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was determined as Rs.58,100/- and the said amount was directed to be deposited by the 3[rd] respondent with interest at the rate of 7% per annum from the date of petition till realization. This appeal is submitted in such circumstances seeking enhancement of compensation. 4. Heard Sri.P.V.Chandramohan, learned counsel for the appellant and Smt.R.Rema, learned counsel for the 3[rd] respondent. 5. The only dispute in this case relates to the quantum of compensation. The learned counsel for the appellant contends that the amount awarded by the Tribunal under various heads are grossly inadequate, whereas, the learned counsel for the 3[rd] MACA.No.1927/2013 4 respondent opposes the same. After carefully going through the contents of the award and the materials produced, I find force in the contention of the appellant. It is seen that, for assessing the compensation, the Tribunal accepted the monthly income of the appellant as Rs.1,500/-, which appears to be on the lower side. The accident in this case occurred in the year 2001. It is to be noted in this regard that in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance co. Ltd.[2011 (13) SCC 236]** the Honourable Supreme Court was pleased to take the monthly income as Rs.4,500/- for an accident that occurred in the year 2004. Therefore, under no circumstances the monthly income of Rs.3,000/- as claimed by the appellant can be treated as unreasonable for the year 2001. Accordingly, the said income is accepted. The main grievance highlighted by the learned counsel for the appellant is that no compensation has been granted towards disability. Even though she produced two disability certificates with respect to the Orthopedic and Neurological disabilities, the same were not accepted by the Tribunal. Ext.A9 is one of the disability certificates, which was issued by the Orthopedic surgeon, wherein the disabilities are noted as depressed fracture of the (Lt) temporoparietal region, pelvis MACA.No.1927/2013 5 fracture, and minimal CSF leak. It is also mentioned in the said certificate that, the appellant had difficulty in sitting and walking. The movements of the hip are also restricted. After taking note of the said injuries, disability was certified as 12%. In the Ext.A10 disability certificate, which was issued by the neurologist, 10% disability owing to neurological disability has been assessed. However, the said certificate does not contain specific details which form the basis of the said assessment. It is also to be noted in this regard that, the medical records available would indicate that she sustained very serious injuries in the accident, which include head injury, fracture of pelvic bones, haemorrhagic contusion of the right temporal lobe, comminuted depressed fracture of the left tempo-parietal bone, CSF leak pneumocephalus, serious injury to the right ear, multiple bodily injuries. On carefully going through the nature of injuries and the contents of the disability certificate issued by the Orthopedic Surgeon, the possibility of sustaining disability to the extent certified therein cannot be ruled out. Therefore, I am of the view that this is a fit case in which some compensation needs to be granted for disability taking note of the extent of disability reflected as per the documents referred above. In such circumstances, I deem it MACA.No.1927/2013 6 appropriate to accept the percentage of disability as 12% by placing reliance upon certificates produced by the appellant. Thus, while, assessing the compensation for disability with the monthly income as Rs.3,000/- and the disability as 12%, the compensation under the said head would come to Rs.47,520/- [3000 x 12 x 11 x 12/100]. 6. The Tribunal awarded compensation for the loss of earnings for a period of four months. Considering the nature of injuries and the treatment undergone by her which includes inpatient treatment for ten days, I am of the view that the appellant must have been prevented from engaging herself as a coolie at least for a period of six months. Therefore, an additional compensation of Rs.12,000/-. [(3000 x 6) -6000] is granted for loss of earnings. 7. The amount awarded by the Tribunal towards pain and suffering was Rs.15,000/-. Considering the nature of the injuries and the treatment undergone by her, I deem it appropriate to grant a further sum of Rs.5,000/- under the said head. As regards the loss of amenities, the Tribunal awarded Rs.8,000/- and in addition to the above, a further sum of Rs.10,000/- was granted towards the loss of discomfiture. Considering the materials placed on record, I MACA.No.1927/2013 7 am of the view that both the said heads can be taken together, but still, the amount awarded under both the heads combined together is not sufficient to address the loss suffered by the appellant. Therefore, a further sum of Rs.10,000/- is awarded under the said head. Accordingly, the total additional compensation is Rs.74,520/[47520+12000+5000+10000]. 6. In the result, this appeal is allowed. The award passed by the Motor Accidents Claims Tribunal, Thrissur in O.P.(MV). No.1421 of 2002 is hereby modified by granting an additional amount of Rs.74,520/- [Rupees seventy-four thousand five hundred and twenty only] and the said amount shall be deposited by the 3rd respondent along with interest at the rate as ordered by the Tribunal with proportionate costs within a period of three months from the date of receipt of a copy of this judgment. However, as the delay of 1843 days in filing the appeal was condoned by this Court subject to the condition that the appellant shall not be entitled to interest for the said period, the 3rd respondent shall be at liberty to exclude the said period while computing the interest on the additional compensation. It is further ordered that the claimant shall furnish the details of the PAN Card, AADHAR Card and Bank details to enable the Insurance Company to make the deposit as MACA.No.1927/2013 8 ordered above, within a period of one month from the date of receipt of a copy of this judgment. In case, she fails to furnish the said details, it shall be open for the Insurance Company to deposit the said amount before the Tribunal. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/15.2.24