Beena v. The Manager National Insurance Company Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 1ST DAY OF AUGUST 2017/10TH SRAVANA, 1939** **MACA.No. 1693 of 2014 -------------------------** **AGAINST THE JUDGMENT IN OP(MV).4/2005 of M.A.C.T.,KOLLAM DATED 18-02-2013** ## **APPELLANT/PETITIONER:** **------------------------** **BEENA, AGED 35 YEARS W/O.REGHUNATHAN PILLAI, MANAKKATTUTHEKKATHIL PANMANA MURI, PANMANA VILLAGE, CHAVARA P.O. KARUNAGAPPALLY, KOLLAM DISTRICT.** **BY ADV. SRI.V.MADHUSUDHANAN** ## **RESPONDENT/RESPONDENT NO.3:** **-----------------------------** **THE MANAGER NATIONAL INSURANC COMPANY LTD, BRANCH OFFICE KOLLAM DISTRICT.** **BY ADV. SRI.RAJAN P.KALIYATH BY SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ami/** ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** **-----------------------------------------------** M.A.C.A.No.1693 of 2014 **-----------------------------------------------** Dated this the 1[st] day of August, 2017 ## **J U D G M E N T** ## **ANIL K.NARENDRAN, J** . This appeal arises out of the Award passed by the Motor Accidents Claims Tribunal, Kollam, dated 18.2.2013 in O.P.(MV) No.4/2005, a claim petition filed by the appellant/claimant under Section 166 of the Motor Vehicles Act, claiming compensation on account of the injuries sustained by her in a motor accident which occurred on 28.8.2004, while she was travelling as a pillion rider in a motorcycle bearing registration No.AP-10/AA5875 along with her husband. At the place of accident, the motorcycle was hit by a car bearing registration No.KL-04/H6166 owned and driven by respondents 1 and 2 before the Tribunal and insured with the 3[rd] respondent (the sole respondent in this appeal). As a result of the accident, she sustained injuries. Alleging that the accident occurred due the rash and negligent driving of the car by the 2[nd] respondent M.A.C.A.No.1693 of 2014 :-2-: driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.5 lakhs under different heads. 2. Before the Tribunal, Exts.A1 to A7 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral evidence. 3. After considering the materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the car by the 2[nd] respondent driver. Since the said vehicle was covered by a valid insurance policy, the 3[rd] respondent insurer was held liable to indemnify the 1[st] respondent owner. Under different heads, the Tribunal awarded a total compensation of Rs.93,980/-, which was rounded off to Rs.94,000/-, and directed the 3[rd] respondent insurer to deposit the said amount before the Tribunal together with interest at the rate of 7.5% per annum from 1.1.2005, i.e., the date of petition, till realisation, with a cost of Rs.1,000/-. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in this appeal. 5. We heard arguments of the learned counsel for the M.A.C.A.No.1693 of 2014 :-3-: appellant/claimant and also the learned counsel for the 3[rd] respondent insurer. 6. The sole issue that arises for consideration in this appeal is as to whether the appellant/claimant is entitled for enhancement of the compensation awarded by the Tribunal under different heads. 7. The accident is of the year 2004 and at the time of the accident, the appellant/claimant was aged 26 years and she was a housewife. The Tribunal took her monthly income notionally at the rate of Rs.2,000/- per month for the purpose of assessing compensation under different heads. In **Lata Wadhwa and ors. v. State of Bihar and ors. (2001 (8) SCC 197)** , the Apex Court has fixed the monthly income of a housewife belonged to the age group of 39-54 years as Rs.3,000/-, equating the value of services rendered by housewives to the family in terms of money. Following the law laid down by the Apex Court in the decision referred to supra, we deem it appropriate to re-fix the monthly income of the appellant/claimant notionally at Rs.3,000/- for the purpose of assessing compensation under different heads. 8. The injuries sustained by the appellant, as borne out M.A.C.A.No.1693 of 2014 :-4-: ## from Ext.A6 wound certificate reads thus ; “Pain and tenderness over the lumbar region. Swelling left upper arm. Laceration 3x1 cm. on the scalp. Laceration 3x1 cm. right forearm. X-ray showed fracture of both pubic rami and fracture of the left humerus.” She had undergone inpatient treatment for a period of 17 days, as borne out by medical records. 9. The compensation awarded by the Tribunal under different heads reads thus ; Loss of earning Rs.8,000/- (2,000x4) Transportation expenses Rs.1,000/Extra nourishment Rs.1,000/Bystander expenses Nil Pain and suffering Rs.20,000/Medical expenses Rs.31,500/Disability compensation Rs.24,480/- (2,000x12x6x17/100) Loss of amenities Rs.8,000/Total : Rs.93,980/rounded off to Rs.94,000/- 10. Towards 'loss of earning', the Tribunal awarded a sum of Rs.8,000/-, taking the notional monthly income as Rs.2,000/-, for a period of 4 months. Considering the fact that the M.A.C.A.No.1693 of 2014 :-5-: appellant/claimant had sustained fracture of both pubic rami and fracture of left humerus, we deem it appropriate to grant her 'compensation for loss of earning' for a period of 5 months. Since we have already re-fixed the monthly income of the appellant/claimant as Rs.3,000/-, the compensation under this head is re-worked as Rs.15,000/- (3,000x5), resulting an additional compensation of Rs. **7,000** /-. 11. Towards 'extra nourishment', the Tribunal awarded a sum of Rs.1,000/- and no amount was awarded under the head 'bystander expenses'. Admittedly, the appellant/claimant had undergone inpatient treatment for a period of 17 days. Considering the fact that the accident is of the year 2004, she is entitled for compensation under the head 'extra nourishment' at the rate of Rs.100/- per day and that under the head 'bystander expenses' at the rate of Rs.150/- per day. In the result, the compensation under the head 'extra nourishment' is re-worked as Rs.1,700/- (100x17), resulting an additional compensation of Rs. **700** /-. The appellant/claimant is also entitled for a further sum of Rs. **2,550** /- (150x17) as compensation under the head 'bystander expenses'. M.A.C.A.No.1693 of 2014 :-6-: 12. Under the head 'pain and suffering', the Tribunal awarded a sum of Rs.20,000/-. Considering the nature of injuries sustained and the treatment the appellant/claimant had undergone, as borne out from medical records, we find that the compensation awarded by the Tribunal under that head represents just and reasonable compensation, which warrants no enhancement in this appeal. 13. Towards 'medical expenses', the appellant/claimant claimed a sum of Rs.62,160/- covered by Ext.A7 series of medical bills. After verifying those medical bills, the Tribunal found certain bills inadmissible and therefore fixed the compensation payable under this head as Rs.31,355/-, which was rounded to Rs.31,500/-. In the absence of any illegality or irregularity pointed out by the learned counsel for the appellant, we find no reason to interfere with the said finding of the Tribunal. 14. Towards 'disability compensation', the Tribunal awarded a sum of Rs.24,480/-, taking the monthly income as Rs.2,000/-, applying the multiplier of '17' applicable to the age group of the appellant/claimant and adopting the percentage of disability as 6%. Though the appellant/claimant has not chosen M.A.C.A.No.1693 of 2014 :-7-: to produce any disability certificate issued by the Medical Board, taking note of the nature of injuries sustained by her, namely fracture of both pubic rami and fracture of the left humerus, the Tribunal thought it fit to award compensation under the head 'disability', fixing the percentage of disability notionally at 6%. In the absence of any challenge made by the 3[rd] respondent insurer, the said finding has attained finality. Since we have already refixed the monthly income of the appellant/claimant as Rs.3,000/-, the compensation under the head 'permanent disability' is reworked as Rs.36,720/- (3,000x12x17x6/100), resulting additional compensation of Rs. **12,240** /-. 15. Towards 'loss of amenities', the Tribunal awarded a sum of Rs.8,000/-. Considering the nature of injuries sustained and the disability that may arise therefrom, we deem it appropriate to re-fix the compensation under this head as Rs.15,000/-, resulting an additional compensation of Rs. **7,000** /-. In the result, the appellant/claimant will be entitled for a total additional compensation of Rs. **29,490** /- (7,000+700+2,550+ 12,240+7,000) in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation, M.A.C.A.No.1693 of 2014 :-8-: excluding the period of delay of 363 days (wrongly shown as 366 days in the order) in filing this appeal which was condoned by this Court by order dated 13.7.2015 in C.M.Appl.No.1923/2014, subject to the condition that the appellant/claimant will not be entitled for interest on enhanced compensation, if any awarded in this appeal, for the said period of delay. Since the insurance coverage of the vehicle is not in dispute, the respondent insurer (the 3[rd] respondent insurer before the Tribunal) shall deposit the said amount before the Tribunal, within a period of one month from the date of receipt of a certified copy of this judgment. The appeal is disposed of as above. No order as to costs. Sd/- **C.T.RAVIKUMAR JUDGE** **ANIL K.NARENDRAN JUDGE** ami/10.8.17 //True copy// P.A.to Judge