Bindhu v. National Insurance Company Ltd

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 31ST DAY OF OCTOBER 2017/119TH KARTHIKA, 1939 MACA.No. 2739 of 2017 () ------------------------AGAINST THE AWARD IN OPMV 1218/2015 of MACT PALA DATED 10-04-2017 APPELLANT(S)/PETITIONER IN O.P:-: -------------------------------- BINDHU AGED 41 YEARS,W/O.LATE SUNIL KUMAR,KARIYATHUMPARA HOUSE, KIZHATHIRI,RAMAPURAM. BY ADVS.SRI.JAMES ABRAHAM (VILAYAKATTU) SRI.K.BINNI RESPONDENT(S)/RESPONDENT: ------------------------- NATIONAL INSURANCE COMPANY LTD PALA.P.O,PALA-686575. R1 BY ADV. SRI.P.JACOB MATHEW R BY SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31-10-2017, ALONG WITH MACA. 2744/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM & K.P.JYOTHINDRANATH, JJ. ----------------------------------------------MACA. Nos.2739 & 2744 of 2017 ----------------------------------------------Dated this the 31st day of October, 2017 ## JUDGMENT ## Abdul Rehim,J. Since both the above appeals arise out of a common award passed in two claim petitions filed before the Tribunal, arising out of the very same accident, both the appeals are considered together and disposed of through this common judgment. 2. MACA. No.2739/17 is preferred against the award in OP (MV) 1218/15 of MACT, Pala and MACA. 2744/2017 is preferred against the award in OP(MV)1217 of the same Tribunal. The appellants herein are the claimants in both the cases. The accident in question occurred on 27.12.2010 when a Maruthi van driven by a person named Sunil Kumar, who is the husband of the appellant in MACA. 2739/17 and the 1[st] appellant in MACA 2744/17, collided with a mini bus MACA.2739 & 2744 of 2017 2 which was coming on the opposite direction. Due to the impact the appellant in MACA. 2739/17 sustained serious injuries and the son of the said appellant named Sooraj as well as Sunil Kumar who was driving the Maruthi van died. OP(MV).1218/15 was filed seeking compensation with respect to the injuries sustained to the claimant therein. OP (MV).1217/15 is a claim filed with respect to the death of the child named Sooraj . The mother and brother of the deceased are the claimants in the said case. Claimants in both these cases are now in appeal seeking enhancement of the amount of compensation awarded on the ground that the award of the Tribunal is insufficient, inadequate and disproportionate. 3. We heard counsel appearing for the appellants and Standing Counsel appearing for the respondent/insurance company. In these appeals there is no dispute with respect to the findings of the Tribunal on the aspects of negligence and liability of the respondent insurance company. MACA.2739 & 2744 of 2017 3 ## MACA No.2739/17 The above appeal is filed against the award in OP(MV). 1218/15. It is the claim petition filed by the appellant seeking compensation with respect to the injuries sustained to her in the accident. From Ext.A10 medical certificate it is revealed that, she had sustained fracture on the shaft of left femur and type I shatzker fracture of right tibia. The appellant was treated as inpatient for a total period of 33 days in three different spells. Thereafter she continued treatment as outpatient. The appellant claimed that she was a coolie by profession and aged 35 years at the time of the accident. But no proof was adduced to substantiate her income. Therefore the Tribunal adopted a notional income of Rs.4500/-. Learned counsel for the appellant contended that the notional income fixed by the Tribunal is on the lower side. We are of the opinion that considering the socio- economic situations which prevailed during the year 2010, the income adopted by the Tribunal is slightly on the MACA.2739 & 2744 of 2017 4 lower side. We are inclined to refix the same at Rs.5000/-. The Tribunal had awarded loss of earnings for a period of 6 months. Considering the gravity of the injuries sustained, we are of the opinion that the appellant might have been prevented from continuing in any occupation atleast for a period of 10 months. Hence we are inclined to allow loss of earnings for a period of 10 months. Computed on that basis the amount awarded under the head of loss of earnings need to be refixed at Rs.50,000/-, which will entitle the appellant for an enhancement of Rs.23,000/- on that count. 4. It is pointed out that the Tribunal had failed to accept the extent of disability as certified in Ext.A10 certificate. It is evident that, as per Ext.A10 certificate, which was seen issued by an Orthopedic Surgeon, the extent of permanent disability was assessed at 19%. But the Tribunal, on physical evaluation of the appellant, adopted the extent of disability at 6%. The Doctor who had issued Ext.A10 certificate was not examined before the MACA.2739 & 2744 of 2017 5 Tribunal. But on a perusal of the said certificate it is evident that the Doctor had noted wasting of both thighs and leg muscles and restriction in knee flexion due to the injuries sustained on the right leg. Slight shortening of the left femur is also noted. However, as observed by the Tribunal, the extent of disability as certified in Ext.A10 cannot be accepted. But at the same time, we are of the opinion that the extent approved by the Tribunal at 6% is slightly on the lower side. On a reasonable estimation we are inclined to refix the extent of disability at 10%. Taking into consideration of re-fixation of the notional income and the extent of disability, compensation for permanent disability need to be refixed at Rs.90,000/- (5000 x 12 x15 x10%), which will entitle the appellant for a further enhancement of Rs.41400/-. 5. Eventhough the counsel contended that an increase in the income considering future prospects need to be added, we are of the opinion that the appellant cannot be MACA.2739 & 2744 of 2017 6 considered as a person having any fixed income or as a person who is self employed. Hence the aspect of future prospects cannot be considered, taking note of settled legal precedents of the hon'ble apex court. Eventhough it was contended that the amounts awarded under other heads are insufficient, we do not find any sustainable ground warranting interference. Thus, we hold that the appellant is entitled for a total enhancement of Rs.64,400/-. MACA. 2744/17 6. The above appeal pertains to the award in OP(MV) No.1217/15. The deceased in the case is a boy aged 7 years. His mother and elder brother are the claimants. For the purpose of computing the loss of dependency, the Tribunal took his notional income at Rs.4000/-. After deducting 1/3 towards personal expenses a sum of Rs.4,80,000/- was awarded by adopting the multiplier of 15. Contention of the appellants is that the notional income of Rs.4000/- fixed by the Tribunal is highly inadequate. MACA.2739 & 2744 of 2017 7 Learned counsel for the appellant had cited a decision of the hon'ble Supreme Court in **V.Mekala vs. M.Malathi and another (2014 (11) SCC 178)** in order to point out that, with respect to an accident in which a student aged 16 years was died, the apex court took the notional income as Rs.10,000/- . But we are of the considered opinion that the award in the said case cannot be taken as the yardstick, because there is lot of difference on the factual aspects and difference with respect to the age of the deceased. Loss of dependency or expected loss of dependency with respect to a student aged 16 years cannot be compared with the case of death of a child aged 7 years. Taking into consideration of the structured formula contained in the IInd schedule of the Motor Vehicles Act under section 163A, we are of the considered opinion that the amount of Rs.4000/adopted as notional income is quite reasonable and justifiable. Hence we are declining interference with respect to the amount awarded under the head of loss of MACA.2739 & 2744 of 2017 8 dependency. 7. Learned counsel pointed out that the Tribunal had awarded only a meager amount of Rs.50,000/- towards loss of love and affection and only a sum of Rs.5000/- towards pain and suffering. We are of the opinion that the amounts awarded under these heads need to be increased slightly. We are inclined to grant a further sum of Rs.25,000/- under the head of loss of love and affection and a further sum of Rs.5,000/- towards pain and suffering. The Tribunal had not awarded any amount towards transportation expenses which we are inclined to grant a sum of Rs.5000/-. Thus we hold that the appellants in this case are entitled for a total enhancement of Rs.35,000/-. 8. In the result both the above appeals are allowed in part. Total compensation awarded by the Tribunal in OP (MV).1217/15 is enhanced by a further sum of Rs.35,000/-. Total compensation awarded in OP(MV).No.1218/ is enhanced by a further sum of Rs.64,400/-. The enhanced MACA.2739 & 2744 of 2017 9 amounts will carry interest at the same rate as awarded by the Tribunal, from the date of the claim petition till realisation. The respondent/insurance company shall deposit the amount before the Tribunal within a period of two months from the date of receipt of a copy of this judgment. 9. Needless to observe that, on such deposit the appellants will be entitled to approach the Tribunal seeking withdrawal and the Tribunal shall pass appropriate orders thereon. C.K.ABDUL REHIM, JUDGE K.P.JYOTHINDRANATH, JUDGE Pmn/ MACA.2739 & 2744 of 2017 10