Chandrika v. Abdul Samad and Oriental Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 15[TH] DAY OF JULY 2021 / 24TH ASHADHA, 1943** ## **MACA NO. 2300 OF 2007** **AGAINST THE COMMON AWARD IN OP(MV) 375/2000 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA** ## **APPELLANT/3RD PETITIONER:** **CHANDRIKA, W/O.RADHAKRISHNAN PUTHENCHIRA PUNTHALA, PURAKKAD, AMBALAPUZHA.** **BY ADV SRI.A.C.DEVY** ## **RESPONDENTS/RESPONDENTS:** - **1 ABDUL SAMAD, PADINJAREKARUKAYIL HOUSE NEERKUNNAM, VANDANAM, ALAPPUZHA.** - **2 ORIENTAL INSURANCE CO.LTD. REP. BY DIVISIONAL MANAGER, DIVISIONAL OFFICE, THIRUVALLA.** **BY ADV SRI.M.JACOB MURICKAN FOR R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **M.A.C.A.No.2300 of 2007** ## **:-2-:** ## **J U D G M E N T** The appellant was the petitioner in OP(MV)No.375 of 2000 on the file of the Motor Accidents Claims Tribunal, Alappuzha. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief, relevant for the determination of appeal, are : On 29.08.1995, while the appellant was travelling in an autorickshaw bearing registration No.KL-3/4967 on the NH47, when the vehicle reached the Navarackal temple, a mini lorry bearing registration No.KL-7/G-6462 (offending vehicle) driven by the first respondent, hit the autorickshaw. The appellant was thrown off the vehicle and sustained serious injuries, including fractures. The fellow passengers and driver in the vehicle also sustained injuries. The appellant's mother succumbed to the injuries after an hour. The appellant was treated at the Medical College Hospital, Alappuzha. The accident occurred solely on account of negligence on the part of the first respondent, who was also the owner of the offending vehicle. The offending ## **M.A.C.A.No.2300 of 2007** ## **:-3-:** vehicle was insured with the second respondent. The appellant was a tailor by profession and earning a monthly income of Rs.1,500/-. The appellant claimed a compensation of Rs.1,62,750/-. The fellow passengers and the legal representatives of the appellant's mother filed O.P.(MV)No.374, 376 and 377 of 2000 before the same Tribunal seeking compensation. 3. The first respondent did not contest the proceedings and was set ex parte. The second respondent contested all the claim petitions. They filed a written statement, inter alia, admitting that the offending vehicle had a valid insurance policy, but it was issued in the name of one V.S.M.Ashraf. Therefore, there was no brevity of contract between the second respondent and the first respondent. It was also contended that the accident did not occur on account of the negligence of the first respondent. Therefore, the claim petition may be dismissed. 4. The Tribunal consolidatedly and jointly tried all the original petitions. 5. PWs.1 to 4 were examined on behalf of the appellant ## **M.A.C.A.No.2300 of 2007** ## **:-4-:** and other petitioners and Exts.A1 to A18 were marked in evidence. 6. The Tribunal by a common award allowed the claim petition filed by the appellant by permitting her to realise an amount of Rs.42,000/- with interest @ 6% per annum from the date of petition till the date of realisation and a cost of Rs.500/-. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard the learned counsel for the appellant and the learned counsel appearing for the second respondent/insurance company. 9. The question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 10. Ext.A4 charge sheet filed by the police after investigation clearly substantiates that the accident occurred on account of negligence of the first respondent. Indisputably, the offending vehicle was covered by a valid insurance policy. Therefore, it is the second respondent who is liable to indemnify ## **M.A.C.A.No.2300 of 2007** ## **:-5-:** the liability of the first respondent, caused on account of the accident by use of the offending vehicle. 11. The appellant had claimed that she was tailor by profession and earning a monthly income of Rs.1,500/-. However, on a perusal of the impugned award, the notional income is not seen fixed by the Tribunal. 12. Considering the fact that the appellant was a tailor by profession and the accident occurred in the year 1999 and following the ratio in **Ramachandrappa v. Manager, Royal** ## **Sundaram Alliance Insurance Company Limited [(2011) 13** **SCC 236]** , I fix the notional income of the appellant, as claimed in the claim petition, at Rs.1,500/- per month. ## **Loss of earnings** 13. Ext.A13 wound certificate and Ext.A14 discharge cards prove that the appellant was treated as in-patient for the period between 29.08.1999 and 08.09.1999. She sustained three fractures as evident from Ext.A13 wound certificate. She had to wear a plaster cast, which was removed only on 07.10.1999. She subsequently again underwent treatment from 18.11.2002 to ## **M.A.C.A.No.2300 of 2007** ## **:-6-:** 25.11.2002. Therefore, she had to undergo treatment for a period of 20 days' spanning in two spells for nearly two years. 14. In such circumstances, I am of the opinion that the appellant was incapacitated for a period of seven months as claimed in the claim petition. Therefore, after fixing the notional income of the appellant at Rs.1,500/- and the period of incapacity at 7 months, I re-fix her loss of earnings at Rs.10,500/- instead of Rs.7,500/- fixed by the Tribunal. ## **Bystander expenses** 15. Going by Ext.A13 wound certificate, Ext.A14 series of discharge cards and Ext.A15 disability certificate, the appellant was treated as an in-patient for a period of 20 days. Although she had sought for bystander expenses of Rs.2,500/-, the Tribunal did not award any amount. Considering the period of hospitalisation of 20 days, I hold that the appellant is entitled for bystander expenses of Rs.2,500/-, as claimed in the claim petition. ## **Loss of amenities** 16. The Tribunal though did not accept Ext.A15 disability certificate, wherein the doctor has certified that the appellant ## **M.A.C.A.No.2300 of 2007** ## **:-7-:** has permanent disability of 22.8%, went on to award an amount of Rs.20,000/- towards 'loss due to disability'. 17. In view of the non-examination of the doctor and the findings of the Tribunal, I do not find any error in the fixation of compensation under the said head. However, even though the appellant had claimed an amount of Rs.20,000/- towards 'loss of amenities', the Tribunal did not award any amount under the said head. 18. Taking into account the serious injuries sustained by the appellant, particularly the three fractures, and that she was hospitalised for a period of 20 days and had to undergo treatment nearly two years, I am of the firm opinion that the appellant is entitled for compensation for loss of amenities as claimed for in the claim petition, at Rs.20,000/-. 19. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 20. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the afore-cited decision, I hold that the appellant is entitled for enhancement of ## **M.A.C.A.No.2300 of 2007** ## **:-8-:** compensation as modified and re-calculated above, i.e., an enhancement by a further amount of Rs.25,500/-, namely, Rs.2,500/- towards 'bystander expenses', Rs.3,000/- towards 'loss of earnings' and Rs.20,000/- towards 'loss of amenities'. In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.25,500/- with interest @ 6% p.a. from the date of petition till the date of deposit after deducting 1,004 days, i.e., the period of delay in preferring the appeal and as ordered by this Court on 30.09.2019 in C.M.A.No.2426/2007 and costs. The second respondent shall deposit the enhanced compensation along with interest and costs before the Tribunal within a period of two months from the date of receipt of certified copy of this judgment. The Tribunal shall disburse the enhanced compensation amount to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS JUDGE** ami/