Bindhu d/o Rajamma v. The Divisional Manager, National Insurance Co Ltd, Kollam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 3[RD] DAY OF JANUARY 2022 / 13TH POUSHA, 1943** **MACA NO. 2768 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 1557/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANT/S:** BINDHU D/O.RAJAMMA, PANACKALAM VILAYIL VEEDU, KURUMANNA THRIKKOVILVATTOM, KOLLAM BY ADV SRI.PRATHEESH.P ## **RESPONDENT/S:** THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO LTD KOLLAM 691001 BY ADV SRI.K.B.RAMANAND **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2768 of 2012 ## **C.S.DIAS, J.** ## **====================== MACA No.2768 of 2012** ## **====================== Dated this the 3[rd] day of January, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.1557/2009 on the file of the Motor Accident Claims Tribunal, Kollam. The respondent in the appeal was the third respondent/insurer before the Tribunal. As the respondent had admitted the insurance policy and its liability, the appellant has not impleaded respondents 1 and 2 before the Tribunal as parties in the appeal. Therefore, for the sake of convenience, the parties are 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 compensation on account of the injuries that she sustained in an accident on 24.12.2007. It was her case that, on the above said date, while she was walking 3 MACA No.2768 of 2012 through the Kollam-Kannanalloor public road, when she reached Murari Junction, a car bearing registration No.KL-01/4059, driven by the second respondent in a rash and negligent manner, hit the petitioner. She fell down and sustained serious injuries including a fracture of L3, L4 and L5. She was treated as an inpatient at the Nair's Hospital, Kollam from 24.12.2007 to 31.12.2007. The first respondent was the owner and the third respondent was the insurer of the car. The appellant was a Tailor by profession and was earning a monthly income of Rs.4,000/-. The appellant, hence claimed a compensation of Rs.1,50,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4. Even though the third respondent entered appearance through Counsel, no written-statement was filed. 4 MACA No.2768 of 2012 5. The petitioner produced and marked Exts A1 to A9 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the petitioner to realise from the third respondent an amount of Rs.54,500/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.Pratheesh.P, the learned counsel appearing for the appellant/petitioner and Sri.K.B Ramanand, the learned counsel appearing for the respondent/third respondent/insurer. 9. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 5 MACA No.2768 of 2012 ## **Negligence and liability** 10. Ext A1 final report filed by the Police proves the fact that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the car. The respondents have not let in any evidence to discredit Ext A1 final report. The third respondent has admitted that it was the insurer of the car and has not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Notional Income** 11. The petitioner had claimed that she was a Tailor by profession and was earning a monthly income of Rs.4,000/-. However, the Tribunal fixed the notional monthly income of the petitioner at Rs.3,000/-. 12. The Hon'ble Supreme Court in **Chameli Devi &** 6 MACA No.2768 of 2012 **Ors vs Jivrail Mian and Ors [2019 KHC 5352]** has fixed the notional monthly income of a carpenter in the year 2001 at Rs.5,000/-. Similarly, in **Chandra @ Chandra @ Chandra Ram vs. Mukesh Kumar Yadav [2021 SCC Online SC 850]** , the Hon'ble Supreme Court has fixed the notional monthly income of a driver in the year 2004 at Rs.6,000/-. 13. The learned counsel appearing for the appellant placed reliance on the decision of the Hon'ble Supreme Court in **Minurout and another vs Satya Pradyumna Mohapatra and others [2013 KHC 5701]** to drive home his contention that if the injured is a skilledlabourer, there is no reason for the Courts to fix the income of the injured as claimed in the claim petition. Instead the Tribunals/Courts can always fix the notional income as per the then prevailing daily wages and rates and as laid down in the authoritative precedents. 14. Considering the fact that the petitioner was a 7 ## MACA No.2768 of 2012 Tailor by profession, that the accident occurred in the year 2007 and the law laid down in the aforecited decisions, I refix the notional monthly income of the petitioner at Rs.6,000/-. ## **Loss of earnings** 15. The Tribunal has held that the petitioner was indisposed for a period of three months. The said finding is reasonable and just, which I confirm. However, in view of the refixation of the notional monthly income of the petitioner at Rs.6,000/-, I award her a further amount of **Rs.9,000/-** under the said head. ## **Disability** 16. The petitioner had not produced any document before the Tribunal to prove her permanent disability. Nevertheless, as directed by this Court on 27.11.2014 in IA 3503/2014, the petitioner was referred to a Medical Board of the District Hospital, Kollam. The Medical Board of the District Hospital, Kollam, has by disability 8 MACA No.2768 of 2012 certificate bearing No.MRL No.323/2015 certified that the petitioner has a permanent disability of 17% due to the fracture lamina of L3, L4 and L5 vertebra. The said certificate is accepted on record and is marked as Ext X1. 17. In **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)]** , the Hon'ble Supreme Court has held that what needs to be looked into in an injury claim is the functional disability of the injured-claimant. 18. In view of the assessment made by the duly constituted Medical Board in Ext X1 that the petitioner has a permanent disability of 17% due to the fracture lamina of L3, L4 and L5 vertebra and considering the fact that she was a Tailor by profession, I hold that the petitioner has a functional disability of 17%. ## **Multiplier** 19. Admittedly, the petitioner was aged 34 years at the time of the accident. In view of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009)** 9 MACA No.2768 of 2012 **6 SCC 121]** , the relevant multiplier to be adopted is '16'. ## **Loss due to disability** 20. Taking into account the above mentioned factors, namely, the notional monthly income of the petitioner at 6,000/-, the multiplier at 16 and has functional disability at 17%, I award the petitioner an amount of **Rs.1,95,840/-** towards loss due to disability. ## **Bystander expenses and Extra Nourishment** 21. The petitioner was treated as an inpatient for a period of 7 days. The Tribunal has awarded an amount of Rs.700/- and Rs.500/- respectively, under the heads 'bystander expenses' and 'extra nourishment', which amounts are too meagre. 22. Taking into account the fact that the petitioner was treated as an inpatient for a period of 7 days, I award her an amount of Rs.300/- per day for a period of 7 days towards bystander expenses, which amounts to **Rs.2,100/-** and Rs.150/- per day for a period of 7 days 10 MACA No.2768 of 2012 towards extra nourishment, which works out to **Rs.1,050/** -. ## **Pain and sufferings and Loss of amenities** 23. Although the petitioner had claimed an amount of Rs.26,000/- towards pain and sufferings and Rs.10,000/towards loss of amenities, the Tribunal has only awarded Rs.12,000/- under the head 'pain and sufferings'. 24. Taking note of the serious injuries sustained by the petitioner, that she was treated as an inpatient for a period of 7 days, that she was indisposed for a period of three months and that she has sustained a functional disability of 17%, I award her an amount of **Rs.26,000/-** under the head 'pain and sufferings' as claimed in the claim petition and **Rs.25,000/-** under the head 'loss of amenities'. ## **Loss of earning capacity** 25. The petitioner had not claimed any amount towards loss of earning capacity, but, the Tribunal has 11 MACA No.2768 of 2012 awarded an amount of Rs.14,000/- under the head 'loss of earning capacity'. However, as I have awarded the petitioner compensation under the head 'loss due to disability', I set aside the amount of Rs.14,000/- awarded under the head 'loss of earning capacity' as it would amount to duplication of compensation. ## **Other heads of compensation** 26. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 27. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the afore- cited precedents, I hold that the appellant/petitioner is entitled to enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. 12 MACA No.2768 of 2012 |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|9,000/-|18,000/-| |2|Transportation expenses|1,000/-|1,000/-| |3|Extra nourishment|500/-|1,050/-| |4|Bystander expenses|700/-|2,100/-| |5|Medical expenses|17,000/-|17,000/-| |6|Pain and sufferings|12,000/-|26,000/-| |7|Loss of amenities etc|Nil|25,000/-| |8|Loss of earningcapacity|14,000/-|Nil| |9|Loss due to disability|Nil|1,95,840/-| ||Total|54,200/-<br>rounded off to<br>Rs.54,500/-|2,85,990/-<br>rounded off to<br>Rs.2,86,000/-| 28. Even though the appellant/petitioner had claimed only an amount of Rs.1,50,000/- , I have awarded the appellant/petitioner more amount than what is claimed in the claim petition because as I have awarded her compensation for loss due to disability fixing the notional income as per the law laid down in the aforecited decision. The above course is permissible in view of the law laid down in **Nagappa vs. Gurudayal Singh [2003 (1) KLT 115(SC)]** and **Rajesh vs. Rajbir** 13 MACA No.2768 of 2012 ## **Singh [ 2013 (3) KLT 89 (SC)].** In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.2,31,500/-** (Rupees Two Lakh Thirty One Thousand and Five Hundred only) with interest at the rate of 7.5% per annum on the enhanced compensation from the date of claim petition till the date of realisation and a cost of Rs. 20,000/-. The respondent/third respondent/insurer is ordered to deposit the enhanced compensation with interest and costs before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall, after deducting the liability of the appellant/petitioner towards court-fee, if any, disburse the compensation amount to the appellant/petitioner, in accordance with law. Sd/- **C.S.DIAS, JUDGE** sks/3.1.2022