C. M. Seetha Chakkandan v. Anto P.P. and Others

**MACA NO. 2398 OF 2009** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 6[TH] DAY OF JULY 2021 / 15TH ASHADHA, 1943 MACA NO. 2398 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 3379/2002 OF SPECIAL COURT FOR EC ACT CASES &MOTOR ACCIDENT CLAIMS TRIBUNAL ,TSR, THRISSUR** ## **APPELLANT/PETITIONER:** C.M.SEETHA CHAKKANDAN HOUSE, TIPPUSULTHAN ROAD,, VATANAPPILLY P.O., THRISSUR DISTRICT. BY ADV SRI.T.C.SURESH MENON ## **RESPONDENTS/RESPONDENTS:** 1 ANTO P.P. & OTHERS PERUMADAN HOUSE, VATANAPPILLY P.O.,, THRISSUR DISTRICT. 2 BABU SO.SANKARU MANNAMPURATHU HOUSE, VATANAPPILLY P.O., THRISSUR DISTRICT. *R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 13-12-2018 IN I.A. NO.1/2018 3 THE UNITED INDIA INSURANCE CO.LTD. BRANCH OFFICE ALENGADAN BUILDING, IRINJALAKUDA, THRISSUR DISTRICT. BY ADV SMT.RAJI T.BHASKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2398 OF 2009** **2** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.3379/2002 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the appeal were the respondents in the claim petition. 2. The facts in brief in the claim petition, relevant for the determination of the appeal, are: on 21.7.2002 while the appellant was walking through the Almavu junction, Vatanappilly, an autorickshaw bearing Reg.No.KL-8/7304 driven by the 2[nd] respondent in a rash and negligent manner hit the appellant. She sustained serious injuries and was treated as an inpatient at the Thrissur Heart Hospital from 21.7.2002 to 27.7.2002. The right thumb of the appellant got crushed and was amputated. The appellant was a Tailor by profession and was earning a monthly income of **MACA NO. 2398 OF 2009** **3** Rs.4,000/-. The autorickshaw was owned by the 1[st] respondent and insured with the 3[rd] respondent. The appellant claimed a total compensation of Rs.1,90,500/- , which was limited to Rs.1,50,000/-. 3. The 1[st] respondent did not contest the proceedings. The original petition against the 2[nd] respondent was dismissed for default. 4. The 3[rd] respondent filed a written statement admitting that the autorickshaw had a valid insurance policy issued by them. However, it was contended that the accident did not occur due to the negligence on the part of the 2[nd] respondent, but due to the negligence of the appellant. The 3[rd] respondent also disputed the age, occupation and income of the appellant. 5. The appellant marked Exts.A1 to A9 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by directing the 3[rd] respondent to pay the appellant an amount of Rs.66,460/- with interest **MACA NO. 2398 OF 2009** **4** at the rate of 7% per annum from the date of petition till the date of payment and proportionate costs. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the 3[rd] respondent. 9. The sole question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 10. Ext.A5 charge-sheet filed by the Vatanappally Police Station after investigation substantiates that the accident occurred solely on account of the negligence on the part of the 2[nd] respondent, who drove the autorickshaw in a rash and manner. negligent Undisputedly, the 1[st] respondent is the owner and the 3[rd] respondent is the insurer of the vehicle. Therefore, the 3[rd] respondent is liable to indemnify the liability of the 1st respondent caused due to the accident. **MACA NO. 2398 OF 2009** **5** ## **Notional income** 10. The appellant had claimed that she was a tailor by profession and earning a monthly income of Rs.4,000/-. However, the Tribunal fixed the notional income of the appellant at Rs.1,500/- per month. 11. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 12. Following the parameters in the afore-cited decision and considering the fact that the accident occurred in the year 2002, I am of the considered opinion that the appellant's notional income can safely be fixed at Rs.3,500/- per month. Hence, I re-fix the notional income of the appellant at Rs.3,500/- per month. ## **Disability** 13. Based on Ext.A8 disability certificate, the **MACA NO. 2398 OF 2009** **6** Tribunal has fixed the disability of the appellant at 12%, which I concur. ## **Loss of earnings** 14. In view of the fact that the appellant's right thumb had to be amputated and that she was a Tailor by profession, I hold that she was incapacitated for a period of six months instead of three months fixed by the Tribunal. Therefore, I re-fix the compensation under the head 'loss of earnings' at Rs.21,000/-, instead of Rs.4,500/fixed by the Tribunal. ## 15. **Compensation for pain and suffering and** ## **compensation for loss of amenities** The appellant had claimed an amount of Rs.15,000/each as compensation for ' pain and suffering' and compensation for 'loss of amenities'. Nevertheless, the Tribunal awarded an amount of Rs.10,000/- and Rs.8,000/-, respectively as compensation under the above said heads. **MACA NO. 2398 OF 2009** **7** 16. Taking into account the fact that the appellant was incapacitated for a period of six months and she had to undergo an amputation of her right thump and she was hospitalised for a period of five days, I am of the definite opinion that the appellant is entitled for enhancement of compensation under the heads 'pain and suffering' and 'loss of amenities' as claimed for in the claim petition at Rs.15,000/- each, ie., enhancement of Rs.5,000 and Rs.7,000/- respectively, under the above heads. ## **Loss due to disability** 17. The Tribunal had awarded an amount of Rs.34,560/- as compensation for loss due to disability, but the Tribunal wrongly fixed the multiplier at '16'. In light of the ratio in **Sarala Verma v Delhi Transport Corporation** [2010(2) KLT 802 (SC)], the relevant multiplier is '15'. As a result of the re-fixation of the notional income of the appellant at Rs.3,500/- per month, the disability at 12% and the relevant multiplier being 15, I re-fix the compensation under the head 'loss due to **MACA NO. 2398 OF 2009** **8** disability' at Rs.75,600/- instead of Rs.34,560/- awarded by the Tribunal. ## **Other heads of claim** 18. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 19. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I am of the firm opinion that the appellant is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |SI<br>.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Loss of earning|4,500|21,000| |2.|Transportation|1,000|1,000| |3.|Expense<br>for<br>extra<br>nourishment|1,000|1,000| |4.|Damages to clothing and|500|500| **MACA NO. 2398 OF 2009** ||**9**||| |---|---|---|---| ||articles||| |5.|Bystander expenses|600|600| |6.|Medical expenses|6,300|6,300| |7.|Pain and suffering|10,000|15,000| |8.|Loss of amenities|8,000|15,000| |9.|Compensation for disability|34,560|75,600| ||Total|66,460|1,36,000| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.69,540/- with interest at the rate of 7% per annum on the enhanced compensation from the date of petition till the date of deposit, after deducting the interest for a period of 134 days, i.e, the period of delay in preferring the appeal and as ordered by this Court on 31.3.2021 in C.M.Appli. No.2829/2009, and proportionate costs. The 3rd respondent shall deposit the enhanced compensation awarded in the appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the **MACA NO. 2398 OF 2009** **10** judgment. The disbursement of the compensation to the appellant/petitioner shall be done by the Tribunal, in accordance with law. **ma/06.07.2021** **Sd/- C.S.DIAS, JUDGE**