BINIJA v. K.MOHAMMED @ KUNHIPPA HAJI; SHIJU K M; THE ORIENTAL INSURANCE COMPANY LIMITED

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 ``` ## **`MACA NO. 2203 OF 2013`** ``` AGAINST THE ORDER/JUDGMENT DATED 21.07.2012 IN OP(MV) NO.457 OF 2010 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE ``` ## **`APPELLANT/PETITIONER:`** ``` BINIJA AGED 32 YEARS, W/O.SUNILKUMAR, RESIDING AT SNEHASRUTHI, KOLATHOTTUPARAMBU P O, PERUMUGHAM,FEROKE(VIA)KOZHIKODE ``` ``` BY ADVS. SRI.V.S.CHANDRASEKHARAN SRI.M.V.DAS SMT.LEKSHMI SWAMINATHAN ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 K.MOHAMMED @ KUNHIPPA HAJI S/O.UNNIALI HAJI, RESIDING AT KARKUZHIYIL HOUSE, P O, THUVOOR, PAYIPPULLU, MALAPPURAM, KOZHIKODE-676505`** - **`2 SHIJU K M AGED 29 YEARS S/O.MATHEW,RESIDING AT KUTTIYILIYIL HOUSE P O VAZHIKKADAVU, MALAPPURAM,679333`** - **`3 THE ORIENTAL INSURANCE COMPANY LIMITED JASEELA COMPLEX, BYPASS JUNCTION, NILAMBUR ROAD, MANJERI-679329`** ## **`BY ADV SRI.VPK.PANICKER`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2203 OF 2013 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant was the petitioner in O.P.(M.V.) No.457/2010 on the files of the Principal Motor Accidents Claims Tribunal, Kozhikode. The claim petition was submitted by her seeking compensation for the injuries sustained to her in a motor accident that occurred on 25.08.2009. The accident occurred when she was travelling in a stage carriage, it collided with another bus bearing Registration No.KL 08/AF 5868. Due to the impact, the appellant sustained serious injuries. The 2nd respondent was the driver of the bus bearing Registration No.KL 08/AF 5868. The said vehicle was owned by the 1st respondent and was insured with the 3rd respondent. 2. The appellant was a tailor by profession, with a monthly income of Rs.5,500/-. She was 32 years old at the time of the accident. According to her, she sustained serious injuries and it resulted in physical disability as well. The claim petition was submitted in such circumstances. 3. The 3rd respondent alone contested the matter by ``` 3 ``` ## **`MACA NO. 2203 OF 2013`** filing a written statement wherein they admitted the coverage of the policy. However, they denied the negligence on the part of the 2nd respondent and the quantum of compensation was also disputed by them. 4. The evidence in this case consists of Exts.A1 to A5 and the discharge summary was marked Ext.X1. The disability certificate issued by the Medical Board was marked as Ext.C1. After the trial, the Tribunal found that the accident occurred due to the negligence of the 2nd respondent and being the insurer, the 3rd respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.1,98,615/- and the said amount was directed to be deposited with interest @ 7% per annum from the date of petition till realisation. This appeal is filed by the appellant challenging the quantum of compensation as she was dissatisfied with the same. 5. Heard Sri.V.S. Chandrasekharan, learned counsel for the appellant and Sri.V.P.K. Panicker, learned counsel appearing for the 3rd respondent. ``` 4 ``` ## **`MACA NO. 2203 OF 2013`** 6. The learned counsel for the appellant points out that, the amounts awarded by the Tribunal under various heads are grossly inadequate, whereas the learned counsel appearing for the 3rd respondent would point out that a reasonable amount was awarded and no interference is required. After carefully going through the records, I find some force in the contention put forward by the learned counsel for the appellant. As far the compensation for disability and consequential loss of earning capacity is concerned, the same was assessed by taking the monthly income as Rs.3,000/- only, which appears to be grossly inadequate. The claimof the petitioner as the monthly income was Rs 5,500/- . It is to be noted that the accident occurred in the year 2009 and under no circumstances the monthly income of Rs.3,000/- could be treated as a reasonable amount. It is to be noted 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 of an ordinary worker without any skills as Rs.4,500/- in the year 2004. ``` MACA NO. 2203 OF 2013 ``` ``` 5 ``` Therefore, the claim of monthly income of Rs.5,500/- cannot be treated as unreasonable pertaining to the accident that occurred in the year 2009. Therefore, the said amount is accepted. 7. The extent of disability as certified in Ext.X1 was 24%, which is already accepted by the Tribunal. Thus, while reassessing the compensation with the revised monthly income as referred to above, the amount of compensation for disability comes to Rs.2,53,440/- (5,500 x 12 x 16 x 24/100). The amount already awarded by the Tribunal under this head is Rs.1,38,240/and thus the additional compensation comes to Rs.1,15,200/-. 8. The next head to be considered is compensation for loss of earnings. It is seen that the Tribunal awarded compensation under this head for a period of two months, and the said period appears to be not sufficient. It is evident from the records that the appellant had sustained the following injuries: _“Comminuted fracture lower end shaft of left humerus, multiple facial lacerations and deep laceration over the lower lip_ ”. It is true that the hospitalization of the appellant was only for a period of ## **`MACA NO. 2203 OF 2013`** ## **`6`** five days. However, it is evident from the records that he had undergone treatment even after discharge from the hospital. Considering the nature of the injuries, I am of the view that, she must have been prevented from pursuing her avocation at least for a period of three months. Therefore, compensation for loss of earnings has to be granted for three months @ Rs.5,500/-. This will result in an additional compensation of Rs.10,500/- (5500x3)6000. 9. The amount awarded towards pain and suffering was Rs.12,000/-. As mentioned above, she sustained serious injuries and considering the same, a further sum of Rs.13,000/- is awarded. No amount is seen awarded towards loss of amenities despite the fact that the injuries suffered by the appellant resulted in physical disability to the extent of 24%. Such disability occurred to her at the young age of 32 years and she has to live with that disability for the remainder of her life. This would certainly affect the quality of her life adversely and therefore, a reasonable compensation has to be granted under the said head. In the facts ## **`MACA NO. 2203 OF 2013`** ## **`7`** and circumstances of the case, I deem it appropriate to grant an amount of Rs.30,000/- under the said head. Thus, the total additional compensation is determined as Rs.1,68,700/(1,15,200+ 10,500+ 13,000+ 30,000). 10. In the result, this appeal is allowed. The award dated 21.07.2012 passed by the Principal Motor Accidents Claims Tribunal, Kozhikode in O.P.(M.V.) No.457/2010 is hereby modified by granting an additional compensation of Rs.1,68,700/- (Rupees one lakh sixty-eight thousand and seven hundred only). The said amount shall be deposited by the 3rd respondent 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, it is clarified that, as the delay of 162 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 interest on the additional compensation. ``` MACA NO. 2203 OF 2013 ``` ``` 8 ``` It is further clarified 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 ordered above, within a period of two months 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 ``` scs