Chandrika v. K.I. Prabhakaran and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 MACA NO. 301 OF 2013** **OPMV NO.1527 OF 2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL** ## **THRISSUR** ## **APPELLANT/PETITIONER:** **CHANDRIKA, W/O.CHOOLIKATTIL SASI, RESIDING AT MANAKALATH HOUSE, PERAMANGALAM P.O., THRISSUR DISTRICT.** **BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** ## **RESPONDENTS/RESPONDENTS:** - **1 K.I PRABHAKARAN, RESIDING AT KURIYAKOTT HOUSE, PURANATTUKARA, THRISSUR TALUK, PIN:680551.** - **2 SANTHOSH, S/O.GOPALAN, RESIDING AT KARUMANPARAMBIL HOUSE, MUTHUVARA, THRISSUR TALUK680 501.** - **3 THE ORIENTAL INSURANCE COMPANY LIMITED THODUPUZHA, PIN:685584.** - **4 PRESIDENT, MUKUNDAPURAM AUTO CO-OPERATIVE SOCIETY LIMITED, IRINJALAKUDA, THRISSUR-680121.** - **5 SEBASTIAN, S/O.VARGHESE, RESIDING AT EDAPPULLY HOUSE, KURUPPAMPADI, KOTTANELLUR, NEAR IRINJALAKUDA, THRISSUR-680672.** - **6 NEW INDIA ASSURANCE COMPANY LIMITED IRINJALAKUDA, THRISSUR-680121.** **BY ADVS.** **SRI.N.S.NAJEEB SRI.P.JAYASANKAR SMT.M.MEENA JOHN SRI.RAJESH CHAKYAT SRI.VIJU THOMAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.301/2013 : 2 : ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1527/2005 on the files of the Motor Accidents Claims Tribunal, Thrissur. 2. The said claim petition was submitted by the appellant seeking compensation for the injuries sustained in a motor accident that occurred on 11.08.2004. According to the appellant, the accident occurred when a bus bearing registration No.KL08/R 9078 hit on the rear side of the autorikshaw bearing registration No.KL-T/9658 and due to its impact, the autorickshaw lost control and knocked down the appellant. 3. The appellant was aged 42 years at the time of the accident and she was an Agriculturist cum housewife. The monthly income claimed was Rs.3,800/-. Respondents 1, 2 and 3 were the owner, driver and insurer of the bus respectively. Respondents 4, 5 and 6 were the owner, driver and insurer of the autorickshaw respecitvely. The claim petition was submitted in such circumstances. M.A.C.A. No.301/2013 : 3 : 4. The claim was contested by the 3[rd] respondent and 6[th] respondent. The 3[rd] respondent filed a written statement disputing the negligence on the part of the 2[nd] respondent. It was also contended that the 2[nd] respondent was not having a valid driving licence and badge and therefore, there was a violation of policy conditions. They also disputed the quantum of compensation claimed. The 5[th] respondent also filed a written statement admitting the coverage of the policy for the autorickshaw but denying the negligence. 5. The evidence in this case consists of Exts.A1 to A10 from the side of the appellant and from the side of the respondents Exts.B1 and B2 were marked. 6. After the trial, the tribunal found that the accident occurred due to the rash and negligent driving of the 2[nd] respondent, the bus driver. The 3[rd] respondent, being the insurer of the bus was held liable to pay the compensation. The respondents 4 to 6 were exonerated from the liability. The quantum of compensation was fixed as Rs.1,11,500/- and the said amount was directed to be deposited with interest at the rate of 8% per annum from the date of petition till realisation with M.A.C.A. No.301/2013 : 4 : proportionate costs. This appeal is submitted in such circumstances by the appellant seeking enhancement of compensation. 7. Heard Sri. Nimod. A.R., the learned counsel appearing for the appellant, Sri. N.S. Najeeb, the learned counsel appearing for the 3[rd] respondent and Sri. Viju Thomas, the learned counsel appearing for the 6[th] respondent. 8. The specific contention put forward by the learned counsel for the appellant is to the effect that the amounts awarded by the tribunal under various heads are extremely on the lower side. The first contest is in relation to the amount awarded towards disability. It was pointed out that the monthly income taken by the tribunal was only Rs.3,000/- which was grossly inadequate. It was pointed out in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], and **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735] **,** the Hon’ble Supreme Court was pleased to take the monthly income as Rs.4,500/- for an ordinary worker even in the absence of any evidence. The M.A.C.A. No.301/2013 : 5 : percentage of disability taken by the tribunal was also on the lower side. It was further pointed out that even though the Ext.A1 disability certificate issued by the Doctor indicates that she suffered 25% disability due to the injuries, the tribunal scaled down the percentage of disability and accepted the same as 12%. 9. On the other hand, the learned counsel appearing for the 3[rd] respondent opposed the said contention by pointing out that the monthly income claimed in the claim petition was Rs.3,800/- and therefore no amount higher than the said amount could be adopted. It was also pointed out that in Ext.A8, 25% disability was certified by a Doctor who did not treat the appellant and the said document was not also proved by examining the Doctor who issued the same. 10. After carefully going through the materials available on record, I find force in the contention put forward by the learned counsel for the appellant. The first aspect to be noticed is in relation to the monthly income. As rightly pointed out by the learned counsel for the appellant in **Ramachandrappa (supra),** the Hon’ble Supreme Court was pleased to take the monthly income of an ordinary worker as Rs.4,500/- for the year 2004 M.A.C.A. No.301/2013 : 6 : even in the absence of any evidence. However, in this case, the monthly income claimed was Rs.3,800/-. However, the fact that the appellant was an Agriculturist and a housewife along with the same cannot be ignored. As far as the housewife is concerned, the same cannot be treated as an avocation which results in any earnings. The services rendered by the housewife are immeasurable and even though the same cannot be converted into monetary terms, since compensation has to be reckoned, for that purpose alone, assessment in terms of money is being made. When the compensation is calculated in respect of the persons, whose actual income cannot be ascertained under normal course in terms of money, the claim put forward in this regard in the claim petition need not be given much emphasis. It was held in **A. Gopinathan v. Afsal Basha [2020 (3) KHC 666]** by this Court that, the monthly income of a housewife cannot be lesser than that of an ordinary worker. It is also to be noted in this regard that, mere reason that a lesser monthly income was claimed in the claim petition, would not preclude this Court from taking a higher monthly income, if the facts and circumstances warrant. In M.A.C.A. No.301/2013 : 7 : such circumstances, I deem it appropriate to fix the monthly income as Rs.4,500/- which is in tune with the monthly income fixed by the tribunal under **Ramachandrappa (supra)** . 11. The next aspect relates to the percentage of disability. The documents would indicate that the injuries sustained by the appellant were very serious in nature. It includes compound fracture of L1, fracture of Sup. I.P. ramus left side, fracture left distal radius, multiple displaced fracture of ribs left side, colles fracture of left hand with posterior tilt, multiple abrasions right leg and back, lacerated wound 7x5x2 just above right knee, lacerated wound over right side of parietal bone, pneumothorax, infected sutured wound of right knee, chest injury. 12. She was treated as an inpatient for 14 days at different hospitals. In the award, the tribunal made certain observations with respect to the physical condition of the appellant after examining her. It was observed that, she has difficulty to walk and she has permanent back pain. She is unable to raise her hands and she walks with much difficulty. In the disability certificate, the following difficulties were noticed by M.A.C.A. No.301/2013 : 8 : ## the Doctor. - “1. Range of flexion of the spine markedly reduced 2. Back pain and stiffness on strenuous activities. 3. Deformity of the (L) wrist. 4. Range of dorsiflexion (500) and palmar flexion (450) of the(L) wrist reduced. 5. Difficulty in taking a deep breath. 6. (L) sided chest pain on strenuous activities. 7. Scarring over the (R) thigh, crepitus and weakness of the (R) knee 8. Difficulty in squatting or sitting cross-legged. 9. Radiologically, evidence of old compression fracture L1, multiple rib fractures (L) side, malunited fracture distal radius (L).” 13. The assessment of physical disability was made in the ## following manner: “% for fracture L1, vertebral body without cord involvement and recovery up to 75% of normal with respect to pain and muscle spasm =9%, % for fractures of 4-7 ribs (L) with pneumothorax = 10% % for fracture lower end of radius(L) with 100 angulation = 6% Combining the values, total % of disability = 25%” 14. When the medical records of the appellant are taken into account, it can be seen that, contents of the same tally with the injuries and the difficulties highlighted in Ext.A8 disability certificate. The tribunal did not accept the said disability certificate and the percentage of disability certified merely because, the Doctor was not examined. However, on carefully going through the entire medical records available, the possibility of the percentage of disability to extent certified, occurring in the M.A.C.A. No.301/2013 : 9 : case of the appellant consequent to the injuries cannot be overruled. It is also to be noted in this regard that, in **Manikantan G. v. K. Janardhanan Nair [2021 (6) KLT SN 32],** this Court held that when a competent Doctor certifies the physical disability after examining the victim, unless there are serious discrepancies in such assessment, the percentage of disability need not be scaled down. In the light of the above, I am of the view that, the percentage of disability as shown in Ext.A8 can be accepted. Thus while reassessing the compensation with the above criteria, the amount of compensation for disability would come to Rs.1,89,000/- (4500x12x14x25/100). The amount already awarded by the tribunal is Rs.60,480/- and the additional compensation would come to Rs.1,28,520/-. 15. Consequent to the revision of monthly income, the appellant would be entitled to additional compensation for loss of earnings. The amount awarded by the tribunal under this head is for four months and the said period appears to be reasonable. Therefore, a further sum of Rs.6,000/- is awarded under this head. The amount awarded by the tribunal towards pain and suffering is Rs.15,000/- which appears to be very low. As M.A.C.A. No.301/2013 : 10 : observed above, the appellant sustained very serious injuries and I have already discussed the nature of injuries suffered by her and the disability arising therefrom. She had undergone for inpatient for 14 days and the records would indicate that even after discharge, she continued her treatment for a substantial period. Therefore, I deem it appropriate to grant a further sum of Rs.20,000/-. 16. The amount awarded towards loss of amenities was only Rs.10,000/- which is grossly inadequate. It is evident from the records that, the serious injuries sustained by her resulted in disability to the extent of 25%. Besides the same, the difficulties consequent to such disability have been clearly discussed in the award and she even finds it difficult to walk. Therefore, this will seriously affect the quality of her life and hence, a reasonable compensation needs to be granted under this head. In such circumstances, a further sum of Rs.25,000/- is awarded. Accordingly, the total additional compensation is determined as Rs.1,79,520/- (1,28,520+6000+20000+25000). In the result, this appeal is allowed. The award dated 04.04.2012 passed by the Motor Accident Claims Tribunal, M.A.C.A. No.301/2013 : 11 : Thrissur in OP(MV) No.1527/2005 is hereby modified by granting an additional compensation of Rs.1,79,520/- (Rupees one lakh seventy-nine thousand five hundred and twenty only). The said amount shall be deposited by the 3[rd] 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. As there was a delay of 185 days in filing the appeal, the 3[rd] respondent shall be at liberty to exclude the said period while computing the interest on the additional compensation. It is further ordered that the claimant shall furnish the details of the PAN card, Aadhar card and bank details to enable the 3[rd] respondent 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** ncd