Chandrika P.V. v. Ninan Varghese and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 13TH DAY OF JUNE 2016/23RD JYAISHTA, 1938** **MACA.No. 2296 of 2012 () -------------------------** ## **AGAINST THE AWARD IN O.P.(M.V.) 2189/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 22-03-2012** ## **APPELLANT/PETITIONER:** - **------------------------** **CHANDRIKA.P.V, AGED 47 YEARS, W/O.SAHADEVAN,RESIDING AT KUZHITHODATHU VEEDU, CHEPPANAM,PANANGAD.P.O,KOCHI-682 506.** **BY ADVS.SRI.K.JANARDHANAN SMT.P.C.JEEVA SRI.K.J.MANU RAJ** ## **RESPONDENTS/RESPONDENTS:** **--------------------------** **1. NINAN VARGHESE, S/O.VARGHESE.K.C, AGED 71 YEARS, RESIDING AT EDANATTUPEEDIKAYIL, PUTHANCAVU,CHENGANNUR. 689 121** **2. THE NEW INDIA ASSURANCE CO.LTD, POOVATHOOR BUILDING,M.C.ROAD,CHENGANNUR,PIN-689 121.** **R2 BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW R BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2296 of 2012** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of June, 2016** ## **J U D G M E N T** ## **K.P. Jyothindranath, J.** The petitioner in O.P.(M.V.)No.2189/2007 on the file of the Motor Accidents Claims Tribunal, Ernakulam preferred this appeal seeking enhancement of the quantum of compensation. 2. When the appeal came up for hearing, the learned counsel for the appellant submitted before us that the claimant is a lady aged 43 years who sustained head injury in a motor vehicle accident occurred on 1.1.2007. The case is that she was traveling as a pillion rider on a motorcycle. While so, the offending car proceeding from opposite direction hit against the motorcycle and thereby she sustained grievous injuries. 3. The allegation is that the accident occurred due to the negligence of the driver of the car. The Tribunal M.A.C.A.No.2296 of 2012 2 awarded a compensation of Rs.3,79,047/- against a claim of Rs.8,32,000/-. It is the submission of the learned counsel for the appellant that even though she sustained 12% permanent disability and had undergone various procedures, all those facts were not considered while compensation was assessed. 4. The learned counsel appearing for the 2[nd] respondent - Insurance Company submitted before us that even though the appellant had claimed that she is a cattle breeder by profession, no evidence was adduced to substantiate the said claim. Under such circumstances the Tribunal considered Rs.2,500/- as her monthly income. It is also the submission that she was not having any fracture on the scalp. A sum of Rs.30,000/- was granted towards pain and suffering. More over a sum of Rs.30,000/- was granted towards loss of amenities and enjoyment in life. Under such circumstances, it can be seen that the compensation awarded by the Tribunal is a just compensation and an interference by this court is not warranted. M.A.C.A.No.2296 of 2012 3 5. We have perused the award. It can be seen that the claimant is claiming that she was aged 42 years at the time of accident. Surely she produced Ext.A10 I.D. Card. As per the same it can be seen that her age is 42 years. Thus the multiplier available as per the decision of the Apex court in **Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)** will be 14, whereas the Tribunal took the multiplier as 15 which has to be corrected. The Tribunal considered an income of Rs.2,500/- per month. The accident occurred in the year 2007. The case of the appellant is that at least Rs.5,000/- should have been considered by the Tribunal. At this juncture, the counsel appearing for the 2[nd] respondent -Insurance Company pointed out that in the claim petition, only a sum of Rs.4,500/- is shown as the monthly income of the claimant. 6. In **Lata Wadhwa v. State of Bihar [AIR 2001 SC 3218]** the Apex Court considered the monthly income of a house wife as Rs.3,000/- [for the age group of 34 to 59] and further the accident involved in that case was as back M.A.C.A.No.2296 of 2012 4 as in 1989. The dictum laid down in Lata Wadhwa's case (supra) was followed by a Division Bench of this Court in **Krishnadas v. Henry Joseph [2011 (4) KLT 716]** . In the said case the accident occurred in the year 2002. There also this court considered a monthly income of a house wife as Rs.3,000/-. In the case in hand the accident occurred in the year 2007. The age group of the appellant/claimant is also in between 35-50 i.e. 42 years. Thus, considering all these aspects, we feel that it will be only just and proper to consider Rs.4,500/- as her monthly income for calculation purpose by equating the services rendered by her to the family in terms of money. 7. After going through the schedule attached to the award it can be seen that the following additional compensation has to be awarded to the appellant. Towards loss of earnings she is entitled to get an additional sum of Rs.12,000/- as her monthly income is taken as Rs.4,500/-. Apart from the same it can be seen that towards miscellaneous expenses only an amount of Rs.7,000/- is seen M.A.C.A.No.2296 of 2012 5 granted. But it is to be remembered that the Tribunal has not awarded any amount towards extra nourishment, damage to clothing, transportation expenses etc. Thus, considering the amount of compensation awarded for miscellaneous expenses, towards damage to clothing and transportation expenses, we feel that an additional amount of Rs.5,000/- can be awarded towards extra nourishment. While granting the said amount the fact that she had sustained a very serious head injury and there was subarachanoid hemorrhage and cerebral oedema have been taken into consideration. It is also considered that as a part of treatment she had undergone Tracheostomy and craniotomy. It is an indication that for a long period she will be in need of liquid food and special food. Further it can be seen that she was in the hospital itself as an inpatient for 35 days. It is categorically written in the document produced to show her illness that her neurological conditions will improve with mobilisation and active physiotherapy. Thus it is an indication that she is in need of M.A.C.A.No.2296 of 2012 6 extra nourishment. Thus additionally an amount of Rs.5,000/- is granted towards extra nourishment. The condition of the claimant at the time of discharge is evident from the medical records. There is permanent disability. Thus, an additional sum of Rs.20,000/- awarded towards loss of amenities and enjoyment in life. Thus, a sum of Rs.90,720/- (4500 x 12 x 14 x 12 /100) will be available on the head of compensation towards permanent disability. On this head she is already awarded a sum of Rs.54,000/-. Thus she is entitled for an additional amount of Rs.36,720/- on this head. Thus the appellant will be entitled to get an additional sum of Rs.73,720/- (Rupees seventy three thousand seven hundred and twenty only). The enhanced amount will carry interest at the rate of 8% per annum from the date of petition till realization. The second respondent is directed to deposit the said amount within a period of two months from the date of receipt of a copy of this judgment. In case of failure on the part of the second respondent to deposit the said amount within the M.A.C.A.No.2296 of 2012 7 stipulated time, the amount remaining to be paid will carry interest at the rate of 9% per annum from the date of petition. There will be no order as to costs. Sd/- **C.T. RAVIKUMAR JUDGE** Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/