Euphery Meyn v. Francis Binatt Dicosta (deleted from party) & United India Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 21ST DAY OF NOVEMBER 2013/30TH KARTHIKA, 1935** ## **MACA.No. 1017 of 2009** **-------------------------AGAINST THE AWARD IN OP(MV)NO. 1120/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA DATED 17-11-2008** **.....** ## **PETITIONER/APPELLANT:** **---------------------------------------** **EUPHERY MEYN, W/O.EMMANUEL MEYN, VELIKKAKAM HOUSE, KADUKUTTY POST, THRISSUR.** **BY ADV. SRI.T.N.MANOJ** ## **RESPONDENT(S):RESPONDENTS:** **---------------------------------------------------** ## *** 1. FRANCIS BINATT DICOSTA,** **CHOPPILLYPARAMBIL HOUSE, KADUKUTTY POST.(D E L E T E D)** ***RESPONDENT NO.1 IS DELETED FROM THE PARTY ARRARY AT THE RISK OF THE APPELLANT VIDE ORDER DTD. 4/11/2013 IN I.A.NO.2895/13 IN MACA 1017/2009.** **2. THE MANAGER, UNITED INDIA INSURANCE COMPANY LTD., SREEKUMAR BLDGS, CHALAKUDY.** **R2 BY ADV. SMT.P.K.SANTHAMMA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.** ----------------------------------------------------------------------M.A.C.A.No.1017 of 2009 ----------------------------------------------------------------------Dated this, the 21[st] November 2013 ## Judgment ## Ramakrishnan, J. The claimant in O.P.(M.V).No.1120/04 before the Motor Accidents Claims Tribunal, Irinjalakuda, is the appellant herein. The appellant filed the application for compensation for the injuries and consequential disabilities suffered by her in a motor vehicle accident caused on account of the rash and negligent driving of the vehicle by the first respondent and insured with the third respondent. After considering the evidence on record, the Tribunal found that the accident occurred due to the rash and negligent driving of the vehicle by the first respondent and awarded a total compensation of Rs.71600/- on various heads as follows : |**_Head_**|**_Amount Rs._**| |---|---| |**_Medical expenses_**|**_28,700.00_**| |**_Transportation expenses_**|**_500.00_**| |**_Bystander's expenses_**|**_3,100.00_**| |**_Loss of earnings_**|**_6,000.00_**| |**_Pain and sufferings_**|**_12,000.00_**| |**_Loss of amenities in life_**|**_4,000.00_**| |**_Disability_**|**_17,300.00_**| |**_Total_**|**_71,600.00_**| MACA 1017/09 2 Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has filed this appeal, claiming enhanced compensation. 2. Heard the learned counsel for the appellant and the learned Standing Counsel for the Insurance Company. 3. The learned counsel for the appellant submitted that the appellant was a seamstress aged 38 years and getting Rs.3,000/- per month as income, but the Tribunal has arbitrarily fixed Rs.1,500/- as her monthly income, which is not correct. Further, she suffered severe disability and the disability certificate issued by the doctor shows that she is having 13.5% permanent disability due to ankylosis of left shoulder and ankylosis of left knee. But, the Tribunal has arbitrarily reduced the same to 6% for the purpose of assessing compensation under the head loss of earning capacity. The amounts awarded under the heads pain and sufferings and loss of amenities in life are also on the lower side. So, according to the learned counsel for the appellant, the appellant is entitled to enhancement of compensation on all heads. MACA 1017/09 3 4. On the other hand, the learned counsel for the Insurance Company submitted that considering the fact that no evidence is adduced on the side of the appellant to prove her income, the Tribunal was perfectly justified in notionally fixing her income as Rs.1,500/- per month. Further, there is no evidence to show that the disability assessed by the doctor is having that much impact on her earning capacity. So, the Tribunal has rightly taken 6% disability for the purpose of awarding compensation under the head loss of earning power. The total compensation awarded is in commensurate with the nature of injuries sustained and no interference is called for with the award at the hands of this Court. 5. We have considered the rival contentions of both parties in detail. 6. Though the appellant claims to be a seamstress, earning Rs.3,000/- per month, no evidence is adduced to prove this fact. But, considering the fact that the accident occurred on 1.12.2003 and considering the fact that she was aged 38 years, she may be able to do some work and considering the living conditions and cost of living, it cannot be said that a person of that MACA 1017/09 4 calibre will be getting only Rs.1,500/- per month. So, we are inclined to re-fix the monthly income of the appellant as Rs.2,000/- per month. If Rs.2,000/- is taken as the monthly income, the appellant will be entitled to get Rs.8,000/- under the head loss of earnings instead of Rs.6,000/- awarded by the Tribunal under the head loss of earnings during the period of treatment. 7. It is seen from the documents that she suffered a fracture to her left shoulder along with some injury to her knee and she was treated as an inpatient for 31 days on two occasions. Considering these aspects, the amount of Rs.12,000/- awarded by the Tribunal under the head pain and sufferings appears to be on the lower side, which, we enhance to Rs.20,000/-. It is seen from the disability certificate that she is having the following disabilities and the doctor has assessed the total disability as 13.5% : “(a) Partial ankylosis of (l) shoulder. - (b) Partial ankylosis of (l) knee.” The disabilities were noted on the shoulder and knee joint. Being a seamstress, it may have great impact on her working capacity. The Tribunal has not considered this fact, but only observed that while converting this into whole body disability, she may have only 6% MACA 1017/09 5 disability, which appears to be unsustainable in law. One will have to correlate the nature of disability to the avocation so as to find out the impact of disability on the avocation of the person to consider the occupational disability. Considering these aspects, we are inclined to take 13% as the disability for the purpose of assessing compensation under the head loss of earning capacity. As per the decision in **Sarla Varma v. Delhi Transport Corporation** (2010(2) KLT 802 (SC), the proper multiplier applicable to the age group of 38 years is 16 and not 15, as taken by the Tribunal. If a recalculation is made on that basis, the appellant will be entitled to get Rs.46,800/- (2000 x 12 x 15 x 13%), instead of Rs.17,300/taken by the Tribunal and we award this amount under this head. 8. Considering the fact that she is having 13.5% disability on her shoulder and knee, this may have some impact on her personal life as well. She was aged only 38 years at the time of accident. She will have to be with this difficulty for the remaining period of her life also. So, the amount of Rs.4,000/- awarded under the head loss of amenities in life appears to be on the lower side, which, we enhance to Rs.20,000/-. We are not inclined to enhance MACA 1017/09 6 the amounts awarded under other heads as they appear to be just and reasonable. In all, the appellant will be entitled to get an additional compensation of Rs.55,500/-, over and above what has been awarded by the Tribunal, which, the second respondentinsurance company is liable to pay with 9% interest from the date of petition till the date of payment. Two months' time is granted to the insurance company to deposit this amount as well. With the above modification of the impugned award, the appeal is disposed of. ## **S.SIRI JAGAN, JUDGE** ## **K.RAMAKRISHNAN,JUDGE** sta MACA 1017/09 7 MACA 1017/09 8