Fathima v. Nazar & United India Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 18[TH] DAY OF JULY 2022 / 27TH ASHADHA, 1944 MACA NO. 1755 OF 2013** **AGAINST THE AWARD DATED 03.10.2012 IN O.P.(MV) NO.220/2010 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA. APPELLANT/PETITIONER:** **FATHIMA, AGED 48 YEARS, W/O.ALI, THANIKKAD HOUSE, THARUVANA POST, PORUNNANNOOR, MANANTHAVADY VIA, WAYANAD DISTRICT. BY ADV. SMT. CELINE JOSEPH** ## **RESPONDENTS/RESPONDENTS:** **1 NAZAR, AGED 41 YEARS, S/O.IBRAHIM, KOZHISSERY HOUSE, KOKKADAVU,PORUNNANNOOR, VELLAMUNDA POST, WAYANAD DISTRICT-673 121. 2 THE BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LTD, BRANCH OFFICE, RAWTHER BUILDING, NEAR PINANGODE ROAD JUNCTION, MAIN ROAD, KALPETTA-673 121.** **BY ADVS.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA 1755/2013 2 C.JAYACHANDRAN, J. -----------------------------------MACA No.1755 of 2013 ------------------------------------Dated this the 18[th] day of July, 2022 ## J U D G M E N T 1. The injured/claimant in O.P(M.V) No.220/2010 of the Motor Accidents Claims Tribunal, Kalpetta is the appellant herein. By virtue of this appeal, the appellant seeks enhancement of compensation granted by the learned Tribunal on the following grounds: The first is with respect to the percentage of disability. The Medical Board reckoned disability at 16% on the basis of the injuries/fractures suffered by the appellant/claimant. Learned counsel would submit that the disability assessed at 16% is the whole body disability. The appellant was a coolie and on account of the fracture sustained at the vertebra, she is not in a position to bend. She lost three teeth as well. According to the learned counsel, the appellant has hearing disability pursuant to the accident and she also has urinary discontinence, which also is the result of the accident. Therefore, MACA 1755/2013 3 the percentage of disability is liable to be increased, is the submission made by the learned counsel for the appellant. This submission is opposed by the learned counsel for the second respondent/insurance company. 2. Having heard the learned counsel appearing on both sides, I am not in a position to endorse the submissions made by the learned counsel for the appellant. The claims now espoused before this Court have been considered by the learned Tribunal in paragraph no.12 of the award. A perusal of the same would indicate that the fractures at the ribs are well united as per a subsequent x-ray. Further, the learned Tribunal found that the ailments/difficulty spoken to by the appellant/claimant do not find a place in the disability certificate issued by the Medical Board. This Court is of the opinion that assessment of disability of a person, pursuant to an accident, is purely the job of an expert and this Court cannot substitute its views as against the opinion of the expert. The appellant was subjected to examination by the Medical Board specifically for the purpose of assessing disability. If any disability MACA 1755/2013 4 other than the 16% disability reckoned for the whole of the body was indicated from the difficulties or the medical situation of the appellant, the same should have found a place in the certificate. In the absence of the same, this Court is not in a position to accede to the request made by the learned counsel for the appellant. There exists nothing to indicate a functional disability which is different and distinct from the whole body disability assessed by the Board. 3. The second head is with respect to the monthly income. As against Rs.6,000/- claimed, only Rs.3,000/- alone was reckoned by the Tribunal. Going by Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236] , the monthly income to be reckoned for the year 2010 is Rs.7,500/-. This was opposed by the learned counsel for the insurance company pointing out that the amount more than what has been claimed by the appellant/petitioner cannot be granted. This court finds little merit in the objection made by the learned counsel, since the Tribunal is liable to arrive at a just and fair compensation, for which MACA 1755/2013 5 purpose, a just and fair monthly income also should be reckoned, based on material particulars. In Minu Rout & Another v. Satya Pradyumna Mahopatra & Others [(2013) 10 SCC 695] , the Hon'ble Supreme Court held that it was in fact the duty of the Tribunal to fix a just compensation. When the Hon'ble Supreme Court categorically holds for the purpose of uniformity in Ramachandrappa (supra) that the notional monthly income to be reckoned for the purpose of compensation for accidents in the year 2010 is Rs.7,500/-, this Court is of the view that the claimant/appellant need not be deprived of the same, only for the reason that she mentioned Rs.6,000/- only in her petition. In the circumstances, the monthly income is reckoned at Rs.7,500/- and the compensation on account of disability is liable to be reworked on that basis. 4. The next ground is with respect to loss of earning capacity, wherein the Tribunal had reckoned only three months. Learned counsel again emphasised the fact that the appellant/claimant suffered fractures at the 6[th] and 7[th] ribs, with minimal hemothorax, besides fracture to the right transverse processes with L2 and L3. She had also suffered a MACA 1755/2013 6 disability to the extent of 16%. Therefore, the period of three months reckoned is inadequate is the submission made by the learned counsel for the appellant. This Court finds merit in the said submission and the period is, therefore, enhanced to four months. 5. Pain and suffering was reckoned only at Rs.12,000/-. Having regard to the injuries referred above and having regard to the fact that the appellant was an inpatient for a period of seven days, this Court enhances the compensation on account of pain and suffering to Rs.25,000/-, especially for the reason that the fractures sustained were on the vertebra. 6. Under the head loss of amenities and inconvenience, only Rs.5,000/- was given. Here again, going by the nature of the injuries sustained and the disability assessed, this Court is of the opinion that the same is to be enhanced to Rs.20,000/-. Finally, the bystander expenses and expenses for extra nourishment were reckoned only at the rate of Rs.100/- each, per day. The accident is of the year MACA 1755/2013 7 2010, wherefore, the former is liable to be enhanced to Rs.250/- per day and the latter, at the rate of Rs.200/- per day. 7. Another contention is with respect to the multiplier adopted by the learned Tribunal. As against the correct multiplier of 14, the Tribunal had taken only 13. Learned counsel for the second respondent/insurance company has no quarrel in respect of this aspect, since the appellant/claimant was aged 45 years at the time of the accident. Therefore, the correct multiplier to be applied is 14. 8. In the result, the M.A.C.A is allowed and the compensation amount payable to the appellant/claimant will be as indicated in the tabular statement shown hereunder: |Sl.<br>No.|Head of Claim|Amount<br>awarded by<br>the<br>Tribunal<br>(Rs.)|Total amount<br>after<br>enhancement in<br>appeal (Rs.)| |---|---|---|---| |1|Income/notional income|3000|7500| |2|Loss of earning<br>(total)|9000|30000| |3|Medical and<br>miscellaneous expenses|37900|37900| MACA 1755/2013 8 ||8||| |---|---|---|---| |4|Bystander expenses|700|1750| |5|Transportation<br>expenses|4000|4000| |6|Extra nourishment|700|1400| |7|Damage to clothing|500|500| |8|Pain and suffering|12000|25000| |9|Compensation for<br>permanent disability|74880|201600*| ||Loss of amenities and<br>inconvenience|5000|20000| |10|Loss of earning power|5000|5000| ||Total|1,49,680/-|3,34,650/-| ||Total enhancement =Rs.1,84,970/-<br>(3,34,650/- - 1,49,680/-)||| *(7500x16%x14x12) 9. The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amounts at the rate of 5% from the date of petition. If any amounts have already been paid, the same shall be granted set off. Since there was a delay of 207 days in filing the appeal, the interest for the enhanced quantum shall not run for the said period as directed in order dated 3.1.2022 in C.M.Appl.No.1/2013. The claimant/s shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, MACA 1755/2013 9 within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest on enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. 10. The appeal is allowed as indicated above. Sd/C.JAYACHANDRAN JUDGE jg