Elizabeth Smitha v. Tharish P. Namzad and The Oriental Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL WEDNESDAY, THE 7TH DAY OF FEBRUARY 2018 / 18TH MAGHA, 1939 MACA.No. 1455 of 2014 AGAINST THE AWARD IN OP(MV) 236/2011 of M.A.C.T.,ERNAKULAM DATED 12-12-2013 APPELLANT(S)/PETITIONER ELIZABETH SMITHA, AGED 33, W/O. VARGHESE, THANDASSERIL HOUSE, CHERANALLOOR.P.O., CEHRANALLORE VILLAGE, ERNAKULAM. BY ADVS.SRI.ANIL S.RAJ SMT.K.N.RAJANI SMT.ANILA PETER SRI.J.VIVEK GEORGE SMT.C.PRABITHA RESPONDENT(S): 1. THARISH P.NAMZAD S/O. P.M. NAMZAD, PALLIKKAVALIYA VEEDU, T.K.S. PURAM, KODUNGALLUR.P.O., THRISSUR-680664. 2. THE ORIENTAL INSURANCE COMPANY LTD., REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-682018. R2 BY ADV. SRI.P.V.JYOTHI PRASAD THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.Harilal, J.** ==================================== M.A.C.A.No.1455 of 2014 ==================================== Dated this the 7[th] day of February, 2018. ## **JUDGMENT** 1.The appellant is the petitioner in O.P. (MV)No.236 of 2011 on the files of the Motor Accidents Claims Tribunal, Ernakulam. The said original petition was filed under Section 166 of the Motor Vehicles Act, claiming an amount of `4,00,000/- as compensation for the bodily damages sustained by her as a result of the motor accident. According to her, on 30.10.2010 at about 6.15 p.m. while she was walking through the road, a motor cycle owned and ridden by the first respondent in a rash and negligent manner hit her as a result of which she sustained grievous injuries. The accident was caused by the rash and negligent Maca1455/2014 ## -:2:- - riding of the offending motor cycle by the first respondent. Hence, she is entitled to get a compensation from the first respondent. Since the motor cycle was insured with the second respondent, the second respondent is liable to indemnify the first respondent. - 2.The second respondent resisted the said contention and denied the cause of accident alleged in the petition, but admitted the coverage of insurance policy issued by the second respondent to the first respondent with respect to the said motor cycle. However, after considering the evidence on record, the Tribunal passed the impugned award granting `1,69,500/- as compensation to the petitioner. The inadequacy and correctness of the quantum of compensation determined under various heads Maca1455/2014 ## -:3:- of claim are challenged in this appeal. - 3.Heard the learned counsel for the appellant and the learned counsel for the respondent. - 4.It is contended that the quantum of compensation determined under the heads 'medical expenses' and 'loss of earnings' is inadequate and disproportionate with the actual loss and sufferings of the petitioner. The monthly income determined by the Tribunal is very low. The Tribunal went wrong in discarding the claim for compensation under the heads 'continuing permanent disability', 'loss of earning power' and 'loss of expectation of life'. 5.Per contra, the respondent contended that the quantum of compensation determined under the aforesaid heads are just and fair and the Maca1455/2014 -:4:- omission to grant compensation under the heads, 'compensation for continuing permanent disability' and 'compensation for loss of expectation of life' etc. is justifiable in the absence of any evidence to substantiate the said claim. It is also contended that the Tribunal is justified in omitting certain bills in as much as the same was already included in some other bills. - 6.The Tribunal determined the monthly income of the petitioner at `4,000/-. It is true that there is no other contra evidence to prove - `4,800/-, as claimed by the petitioner. According to the petitioner, at the time of accident, she was an officer in charge cum accountant of a private firm. Though she produced Ext.A9 salary certificate, the Maca1455/2014 -:5:- employer who issued Ext.A9 salary certificate was not examined in evidence. Therefore, the Tribunal is justified in not relying on Ext.A9 salary certificate. But, this court further finds that in view of the decision of the Supreme Court in _**amachandrappra v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.**_ **[2011 (13) SCC 236]** the Tribunal cannot be justified in determining the monthly notional income at `4,000/- for the accident occurred in the year 2010. In the above view, the monthly income of the petitioner will stand enhanced and modified to `4,500/- per month. Thus, the petitioner is given `27,000/- as compensation for loss of earnings (4,500 x 6). The additional compensation payable under the above head is `3,000/-. Maca1455/2014 ## -:6:- - 7.Even though it is vehemently contended that no amount was granted for permanent disability, it could be seen that no certificate was produced to prove any kind of disability resulted from the accident. In the absence of such evidence, the Tribunal is justified in not granting any amount for the alleged continuing permanent disability. - 8.The petitioner has produced Ext.A8 series medical bills, 33 in number, which would show that she had spent an amount of `1,06,387/towards treatment expenses. But, the Tribunal has granted `98,377/- towards the said claim. The Tribunal reduced the claim to `98,377/-, for the reason that there are certain doublings in the bill. The bills included in Ext.A8 series are already included in inpatient bills. Maca1455/2014 ## -:7:- It appears that the Tribunal has verified each and every bill and found that certain items are included in more than one bill. In view of the reasoning stated in paragraph 8 of the impugned award, this court does not find any reason to interfere with the amount granted for medical expenses. - 9.Though the petitioner claimed `25,000/- towards compensation for future treatment, no amount is seen granted for future treatment. On a verification of Exts.A5 and A6, it is seen that she sustained the following injuries: - Grade 2 compound fracture lower 1/3 of right tibia fibula, fracture superior and inferior pubis rami, undisplaced fracture of right occipital bone. 10. Having regard to the grievous nature of the Maca1455/2014 ## -:8:- injuries sustained, this court finds that the Tribunal cannot be justified in discarding the expenses for future treatment. Consequently, the petitioner is given `10,000/- towards future treatment. Thus, the petitioner is given an additional compensation of `13,000/-. The total compensation payable to the petitioner is `1,82,500/-. All other findings of the Tribunal will stand undisturbed and operative. Needless to say, the said amount will carry interest at the rate stipulated by the Tribunal. 11. The MACA is allowed to the above extent. All the pending interlocutory applications will stand closed. Sd/- **K.Harilal, Judge** sl. /true copy/ P.S. To Judge