Elsy Thomas v. M.A.MUSTHAFA & Others

**MACA NO. 2606 OF 2010** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 17[TH] DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943** **MACA NO. 2606 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 650/2004 OF THE ADDITIONAL** **MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/PETITIONER:** ELSY THOMAS, W/O.K.J.THOMAS, AGED 52 YEARS, KOLLASSERY HOUSE, PERUMPADAPU DESOM, PALLURUTHY VILLAGE,KOCHI-6. BY ADV SRI.P.M.JOSHI **RESPONDENTS/RESPONDENTS:** 1 M.A.MUSTHAFA & OTHERS MARUTHUMKUDY HOUSE, NEAR WIRE HOUSE COMPANY, EDATHALA, ALUVA 683 561. 2 T.S.ABOOBACKER S/O.SAITHU MUHAMMED THGEKETHAMARACHALAYIL HOUSE, VADAKODE PO, KANGARAPADY-682 021 3 THE ORIENTAL INSURANCE COMPANY LTD DIVISION OFFICE NO.II, RAVIPURAM ,M.G.ROAD, KOCHI-16 4 GOPALAKRISHNAN, S/O. NOT KNOWN ASSARIPARAMBIL, CHERANELLOOR PO, CHERANELLOOR- 683 544. BY ADVS. N.S.NAJEEB SRI.M.K.ABOOBACKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2606 OF 2010** **2** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.650/2004 on the file of the Motor Accidents Claims Tribunal, Ernakulam. 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 sustained to her in an accident on 23.12.2003. It was her case that, on the above-said day, while she was travelling pillion on a motorcycle bearing Reg. No.KL-01/Z 9684 ridden by her husband through the M.G.Road, Ernakulam, a bus bearing Reg. No.KL-7T-4050 (Bus), driven by the 1st respondent in a negligent manner, hit the motorcycle of the appellant. The appellant fell down and sustained multiple injuries, including a basifrontal hematoma, left frontal pole contusion and fracture of the occipital bone. She was **MACA NO. 2606 OF 2010** **3** treated as an inpatient at the Medical Trust Hospital, Ernakulam for a period of twelve days. The bus was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The 4[th] respondent was the insurance policy holder. The appellant was a house-wife having a notional monthly income of Rs.4,500/-. Hence, the appellant claimed a compensation of Rs.2,61,000/- from the respondents, which claim was limited to Rs.2,00,000/-. 3. The respondents 1 and 2 did not file any written statement. The 4[th] respondent did not contest the proceeding and was set ex parte. 4. The 3[rd] respondent had filed a written statement denying negligence on the part of the 1[st] respondent. The 3[rd] respondent also denied the age, occupation and income of the appellant. 5. The appellant had produced and marked Exts.A1 to A13 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and **MACA NO. 2606 OF 2010** **4** materials on record, allowed the claim petition, in part, by permitting the appellant to recover from the 3[rd] respondent an amount of Rs.72,994/- with interest and proportionate costs. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.P.M.Joshi, the learned counsel appearing for the appellant/petitioner and Sri.N.S.Najeeb, the learned counsel appearing for the 3rd respondentinsurer. 9. The point that emanates for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 10. Ext.A3 charge-sheet filed by the City Traffic Police in Crime No.4135/2003 proves that the accident occurred due to the negligence of the 1[st] respondent. Indisputably, the 2nd respondent was the owner, 4th respondent was the insured and the 3[rd] respondent was the insurer of the **MACA NO. 2606 OF 2010** **5** bus. The respondents have not let in any evidence to discredit Ext.A3 charge-sheet. The 3[rd] respondent has also not proved that the respondents 2 and 4 had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 4[th ] respondent arising out of the accident. ## **Income** 11. The appellant had claimed that she was a housewife and was earning a monthly income of Rs.4,500/-. The Tribunal, for the want of materials, fixed notional monthly income of the appellant at Rs.2,500/-. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 13. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the **MACA NO. 2606 OF 2010** **6** year 2003, I re-fix the notional monthly income of the appellant at Rs.4,000/-. ## **Loss of earnings** 14. The Tribunal found that the appellant was indisposed for a period of six months. I confirm the said finding. In view of the re-fixation of the notional monthly income of the appellant at Rs.4,000/-, I award her an amount of Rs.24,000/- under the head ‘loss of earnings’, instead of Rs.15,000/- awarded by the Tribunal. ## **Disability** 15. Based on Ext.A13 disability certificate issued by the Medical Board attached to the Medical College Hospital, Alappuzha, the Tribunal fixed the functional disability of the appellant at 5%. I confirm the said finding. ## **Multiplier** 16. In the claim petition, the appellant had pleaded that she was aged 46 years on the date of the accident. **MACA NO. 2606 OF 2010** **7** However, the Tribunal has fixed the age of the appellant at 55. In Ext.A2 wound certificate, it is clearly mentioned that the appellant was aged 46 years at the time of the accident. Therefore, I accept the assertion of the appellant in the claim petition and corroborated by Ext.A2, I fix her age at 46, since there is no serious dispute with regard to her age from the side of the respondents. The view stands fortified by the position laid down by the Hon'ble Supreme Court in **Shivakumar v. Bengaluru Metropolitan Transport Corporation** [2017 (5) SCC 79]. ## **Multiplier** 17. In the light of the law laid down in **Sarla Verma & Otrs Vs. Delhi Transport Corporation** [(2009) 6 SCC 121], the relevant multiplier to be adopted is '13' instead of '8' adopted by the Tribunal. ## **Loss due to disability** 18. Taking into account the above mentioned factors, namely, the monthly income of the appellant at Rs.4,000/-, her functional disability at ‘5%’ and the **MACA NO. 2606 OF 2010** **8** multiplier at '13', I award the appellant an amount of Rs.31,200/- towards ‘loss due to disability’, instead of Rs.9,000/- awarded by the Tribunal. ## **- Extra nourishment expenses** 19. As the appellant was treated as an inpatient for a period of 12 days, I award the appellant an amount of Rs.800/- under the head 'extra-nourishment'. ## **Pain and sufferings and Loss of amenities** 20. On a consideration of the fact that the appellant was treated as an inpatient for a period of 12 days, that she was indisposed for a period of six months, and that she suffered a functional disability of 5%, I award her a further amount of Rs.13,000/- under the head 'pain and sufferings' and Rs.12,000/- under the head 'loss of amenities' . ## **Other heads of compensation** 21. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. **MACA NO. 2606 OF 2010** **9** 22. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. **==> picture [435 x 435] intentionally omitted <==** **----- Start of picture text -----**<br> SI.No Head of claim Amount awarded Amounts<br>by the Tribunal (in modified and<br>rupees) recalculated by<br>this Court<br>1 Loss of earnings 15,000 24,000<br>2. Transport to hospital 500 500<br>3. Damage to clothing 400 400<br>4. Bystander expenses 1,500 1,500<br>---<br>5. Extra nourishment 800<br>6. Medical Expenses 26,594 26,594<br>7 Pain and suffering 12,000 25,000<br>8. Loss of amenities 8,000 20,000<br>9. Loss due to disability 9,000 31,200<br>Total 72,994 1,29,994<br>(rounded off to<br>========<br>Rs.1,30,000/-<br>====== ===<br>**----- End of picture text -----**<br> **MACA NO. 2606 OF 2010** **10** In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.57,006/- with interest at the rate of 7% per annum from the date of petition till the date of deposit, after deducting the interest for a period of 131 days i.e. the period of delay in filing the appeal and as ordered by this Court on 25.10.2021 in C.M.Appli.No.1 of 2010, and a cost of Rs.5,000/-. The 3[rd] respondent-insurer is directed to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited compensation to the appellant/petitioner in accordance with law. ma/17.02.2022 Sd/- **C.S.DIAS, JUDGE**