Devaki v. Padiyampurath MujeeB Rehman, Kunhimohammed and The Oriental Insurance Company Limited

MACA NO. 2403 OF 2012 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 24[TH] DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943 MACA NO. 2403 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 1337/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI, MALAPPURAM** **APPELLANT/S:** DEVAKI AGED 55 YEARS W/O.VASUDEVAN, PURAKKAL HOUSE, PORUR ASMOM DESOM P.O. CHATHANGOTTUPURAM , NILAMBUR TALUK, MALAPPURAM DISTRICT. BY ADV SRI.P.ANOOP (MULAVANA) ## **RESPONDENT/S:** 1 PADIYAMPURATH MUJEEB REHMAN S/O. ALAVIKUTTY, KARAKUNNU, THACHUNNI, TRIKKALANGODE AMSOM, ERNAD TALUK, MALAPPURAM DISTRICT 676321 2 KUNHIMOHAMMED S/O. MOIDEENKUTTY, KALATHINGAL HOUSE, KARAKUNNUU P.O. MANJERI, MALAPPURAM DISTRICT 676321. 3 THE ORIENTAL INSURANCE COMPANY LIMITED. BRANCH OFFICE, JASEELA COMPLEX,BYPASS JUNCTION, NILAMBUR ROAD, P.O.MANJERI, MALAPPURAM DISTRICT 676321. BY ADV SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2403 OF 2012 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1337/2009 on the file of the Motor Accidents Claims Tribunal, Manjeri. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that she sustained in an accident on 13.11.2008. It was her case that, while she was traveling in a bus bearing registration No.KL-11/H 181 (bus) from Wandoor to Areecode, when she reached the place of accident, a bus bearing registration No.KL-10/N 837 (offending bus) came from the opposite side and hit the bus in which the appellant was traveling. The appellant sustained serious injuries and was treated as inpatient for a period of 12 days. She suffered a crush injury on the right foot and a fracture (segmental) of first and fifth metatarsals. She had to undergo 18 reviews. The offending bus was driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. The MACA NO. 2403 OF 2012 3 appellant was aged 55 years and taking private tuitions. She claimed that she had a monthly income of Rs.4,000/-. Hence, the appellant claimed a total compensation of Rs.2,00,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 4. The 3[rd] respondent filed a written statement admitting that the offending bus had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the driver of the bus in which the appellant was traveling. Hence, the 3[rd] respondent prayed that the claim petition be dismissed. 5. The appellant produced and marked Exts.A1 to A8 in evidence. The Medical Board report was marked as Ext.X1. 6. The Tribunal, after analyzing the pleadings and the materials on record, by the impugned award allowed the claim petition in part, by permitting the appellant to realize an amount of Rs.1,06,228/- with interest and cost from the 3[rd] respondent. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal. MACA NO. 2403 OF 2012 4 8. Heard; Sri.P. Anoop, the learned counsel appearing for the appellant and Sri.P. Jacob Mathew, the learned counsel appearing for the 3[rd] respondent/insurer. 9. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and Liability** 10. Ext.A8 charge sheet filed by the Police substantiates that the accident occurred due to the negligence of the 1[st] respondent/driver of the offending bus. Admittedly, the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the offending bus. The 3[rd] respondent had admitted that the offending bus had a valid insurance coverage and had not alleged that the 2[nd] respondent had violated the policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 2[nd] respondent arising out of the accident. ## **Notional Income** 11. The appellant had claimed that she was taking private tuition. She claimed that she was earning a monthly income of Rs.4,000/-. However, the Tribunal fixed the MACA NO. 2403 OF 2012 5 notional income of the appellant at Rs.2,500/- per month. 12. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd.** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 13. Following the bench mark fixed in the aforesaid decision and taking into account the fact that the accident occurred in the year 2008, I am of the firm opinion that the notional income of the appellant can safely be fixed at Rs.4,000/- per month as claimed in the claim petition. ## **Loss of earnings** 14. The Tribunal has held that the appellant was indisposed for a period of six months. 15. In view of the re-fixation of the notional income of the appellant at Rs.4,000/- per month, I refix the compensation for loss of earnings at Rs.24,000/- instead of Rs.15,000 awarded by the Tribunal. ## **Loss due to disability** 16. Pursuant to the direction of the Tribunal, the appellant was referred to a duly constituted Medical Board MACA NO. 2403 OF 2012 6 attached to the General Hospital, Manjeri. A three member Medical Board examined the petitioner and assessed her disability at 20% for the reasons that the petitioner had total ankylosis of right ankle in neutral position, she could not squat properly and she could climb stairs only with difficulty. Despite the certification made by the Medical Board, the Tribunal went on to hold that the disability assessed by the Medical Board does not impair the appellant from carrying on with her avocation as a tuition teacher. The course adopted by the Tribunal, according to me, is erroneous. 17. In **Rajkumar vs. Ajaykumar** [2011 (1) KLT SC] **,** the Honourable Supreme Court had empathetically held that if a Tribunal is not satisfied with the disability certificate produced before it, it has to refer the injured/claimant to a Medical Board. Once the Board assesses the disability, there is no need for examining any member of the Medical Board. All that has to be looked into is, the functional disability of the injured claimed. 18. In the instant case, the Medical Board has found that the appellant has a total ankylosis of right ankle, she MACA NO. 2403 OF 2012 7 has difficulty in squatting and she is not in a position to climb the stairs. The petitioner sustained the medical issues only due to the accident. Therefore, certainly, the appellant would find it difficult to carry on with her avocation, than prior to the accident. It is trite, that the duty of the Court is to put the injured claimant to the nearest position to that prior to the accident. 19. In the above factual and legal circumstances, I hold that the appellant's functional disability has to be fixed at 15%, going by the injuries and disability certified by the Medical Board. Accordingly, I fix the disability of the appellant at 15%. 20. Admittedly, the appellant was aged 55 years on the date of accident. Following the ratio in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802], the relevant multiplier to be adopted is '11'. 21. Taking into account the above mentioned factors i.e., the monthly income of the deceased at Rs.4,000/-, multiplier at 11, and functional disability at 15%, I hold that the appellant is entitled to compensation for loss due to disability at Rs.79,200/-. MACA NO. 2403 OF 2012 8 22. Similarly I find that the bye-stander expenses awarded by the Tribunal at Rs.100/- per day is too law. Therefore, I enhance the same to Rs.300/- per day for 12 days resulting in awarding an amount of Rs.3,600/-. 23. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 24. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, I am of the definite opinion that the appellant is entitled for enhancement of compensation modified and recalculated above and given in the table below for easy reference. **==> picture [429 x 216] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>No. awarded by awarded by<br>the Tribunal this Court<br>(in Rs.) (in Rs.)<br>1. Loss of earning 15,000 24,000<br> 2. Transportation 7,500 7,500<br>3. Clothing 250 250<br>4. Bystander expenses 1,200 3,600 (Rs.300<br>X 12 days)<br>5. Medical Expenses 37,278 37,278<br>**----- End of picture text -----**<br> MACA NO. 2403 OF 2012 9 **==> picture [429 x 151] intentionally omitted <==** **----- Start of picture text -----**<br> 6. Pain and suffering 10,000 10,000<br>7. Loss of amenities and 35,000 35,000<br>disfigurement<br>8. Loss due to disability 79,200 79,200<br>Total 1,06,228 1,96,828<br>**----- End of picture text -----**<br> In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.90,600/- with interest on the enhanced compensation at the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.3,000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and costs before the Tribunal within a period of 60 days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant in accordance with law. All pending interlocutory applications will stand closed. Sd/- **C.S.DIAS JUDGE** rkc