Foujisa W/o Nazir v. K. Mohammed @ Kunhippa Haji, Shiji K.M., The Oriental Insurance Company Ltd

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 17TH DAY OF FEBRUARY 2016/28TH MAGHA, 1937 MACA.No. 19 of 2013 () ----------------------AGAINST THE AWARD IN OPMV 994/2010 of M.A.C.T., KOZHIKODE DATED 24-07-2012 APPELLANT(S)/PETITIONER: ------------------------------- FOUJISA W/O.NAZIR, R/A.MATTUMMAL HOUSE P.P CHELEMBRA (VIA) IDIMOOZHIKKAL, MALAPPURAM BY ADV. SRI.AVM.SALAHUDEEN RESPONDENT(S): ------------------- 1. K.MOHAMMED @ KUNHIPPA HAJI S/O.UNNIALI HAJI, R/A.KARAKUZHIYIL HOUSE, P.O.THUVOOR PAYIPULLU, MALAPPURAM, PIN-676505 2. SHIJI K.M S/O.MATHEW, R/A.KUTTIYIL HOUSE, P.O.VAZHIKKADAVU MALAPPURAM, PIN-679333 3. THE ORIENTAL INSURANCE COMPANY LTD, JASEELA COMPLEX, BYPASS JUNCTION, NILAMBUR ROAD MANJERY P.O, MALAPPURAM, PIN-676121 R3 BY ADV. SRI.A.R.GEORGE BY SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & MARY JOSEPH, JJ.** **========================== M.A.C.A. No.19 OF 2013 ==========================** Dated this the 17[th] day of February, 2016 ## **JUDGMENT** ## _**Ravikumar, J.**_ The injured-claimant is the appellant. She sustained injuries in a motor accident occurred on 25.8.2009 at about 9.45 a.m. while she was travelling in a stage carriage bus bearing Reg.No.KL-08-AF 5868 from Idimoozhikkal to Medical College Hospital, Kozhikode. When the bus reached Thiruvannur, it collided with another bus coming from the opposite direction. Passengers including the appellant herein sustained injuries. The appellant was taken to MIMS Hospital, Kozhikode and she had been an inpatient there from 25.8.2009 till 13.10.2009. It is in the said circumstances that she filed O.P.(MV). 994/2010 seeking compensation raising allegation of negligence **M.A.C.A.19/2013** 2 against the second respondent, the driver of the offending vehicle. The first respondent is the owner of the bus and the third respondent is its insurer. The appellant has also taken averments to make the first respondent vicariously liable and the third respondent to indemnify the first respondent, the insured. . 2.Before the Tribunal, respondents 1 and 2 remained _ex parte_ The third respondent filed a written statement mainly taking up the contention that there was no negligence on the part of the second respondent as alleged in the claim petition. At the same time, they have admitted the existence of a valid insurance policy in respect of the offending vehicle. It is contended that the amount of compensation claimed is exorbitant and that the appellant shall be put to strict proof with respect to age, occupation, income etc. No oral evidence was adduced by both sides. On the side of the appellant, Exts.A1 to A10 were got marked. Ext.X1 is the medical records from MIMS Hospital and Ext.C1, the disability certificate is the court **M.A.C.A.19/2013** 3 document. On appreciating the evidence on record and the arguments advanced, the Tribunal passed the impugned award whereunder an amount of `6,61,665/- with interest @ 7% per annum from the date of the petition till realisation, was awarded. The appellant seeks enhancement of the said amount of compensation in this appeal. 3.The main grievance of the appellant is with respect to the monthly income fixed by the Tribunal. Going by the claim petition, the contention is that the appellant is a tailor by profession and she is earning a monthly income of `6,500/-. The Tribunal fixed `2,500/- as notional monthly income. Evidently, the appellant was aged 30 years at the time of the accident. Therefore, the question to be considered is whether the Tribunal has erred in fixing the monthly income notionally at `2,500/-. No evidence whatsoever was produced before the Tribunal by the appellant in support of her contentions that she is a tailor by profession and was earning a monthly income of `6,500/-. True that in the claim petition, she has stated that she is a tailor by **M.A.C.A.19/2013** 4 profession. But, when the claimant/appellant failed to adduce any evidence in support of the said contention as also with respect to the monthly income, the Tribunal could not be found fault with in fixing the monthly income notionally. In this context, another aspect also assumes relevance. Ext.A1 FIR would reveal that FIR was registered based on the statement lodged by none other than the appellant herself. In the FI statement, she has categorically stated thus:- **“** ®ÈßAí dÉçÄcµßºîí ç¼ÞÜß ²Kᢠ§Üï. **”** In such circumstances, in the absence of any evidence and taking into account the aforesaid recital in Ext.A1, the appellant's status could have been taken only as that of a housewife. Presumably, the Tribunal treated the appellant as a housewife and fixed the monthly income, on a modest estimation, by equating her services to the family in terms of money. Even then, the question is whether the Tribunal was justified in taking her monthly income notionally at `2,500/- only. In this context, it is relevant to refer to the decision of the Hon'ble Apex **M.A.C.A.19/2013** 5 Court in **Lata Wadhwa v. State of Bihar [AIR 2001 SC 3218]** and the decision of the Division Bench of this Court in **Krishnadas** **v. Henry Joseph [2011 (4) KLT 716]** rendered relying on **Lata Wadhwa** 's case. **Lata Wadhwa** 's case was pertaining to the death of a housewife in a fire accident. The Hon'ble Apex Court found if the value of the service rendered by her to the house is taken and equated in terms of money, even on modest estimation, it should be `3,000/per month. Evidently, the Apex Court held so, in the case of housewife belonging to the age group 34 to 59 years. In **Krishnadas** 's case, the mother of the claimant who lost her life in an accident occurred on 24.8.2002, was aged 46 years at the time of the accident. This Court took the monthly income of the said lady who lost life for the purpose of computing loss of dependency as `3,000/-. Taking into account the cost of living and price index and also taking note of the fact that the accident in this case occurred on 25.8.2009, we are of the view that the value of her service to her family when equated in terms of money for the purpose of computing the compensation for **M.A.C.A.19/2013** 6 incurring permanent disability, the monthly income ought to have been fixed notionally at `4,000/-. Accordingly, we fix the monthly income of the appellant notionally, as `4,000/-. Going by the decision in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** the multiplier to be applied in the case of persons belonging to the age group 26 to 30 is 17. The Tribunal fixed the multiplier as 17. In the absence of any evidence to show that the appellant had crossed the age of 30 years at the time of the accident, we do not propose to interfere with the multiplier fixed by the Tribunal viz., 17. Ext.C1 is the disability certificate. In fact, she was referred to the medical board in Medical College Hospital, Kozhikode by the Tribunal. After examination of the appellant, the medical board assessed the permanent disability at 52% as per Ext.C1. Evidently, the Tribunal took the entire percentage of disability viz., 52% for the purpose of computing the compensation payable for the permanent disability incurred by the appellant in the accident. Since we have taken the monthly income of the appellant as `4,000/- the amount payable has **M.A.C.A.19/2013** 7 to be re-assessed. Substituting the multiplicand `4,000/- in place of `2,500/- the amount would come to `4,24,320/-. On deducting the amount already granted by the Tribunal under the said head viz., `2,65,200/-, the appellant would be entitled to get `1,59,120/additionally. In view of the fact that we have fixed the monthly income of the appellant notionally at `4,000/-, the appellant is entitled to get an enhancement under the head loss of earning as well. The Tribunal took the loss of earning for a period of six months. Taking the monthly income of the appellant as `4,000/- and the period as six months, the appellant is entitled to get `24,000/-. After deducting the amount already granted, the appellant would be entitled to get `9,000/- additionally under the said head. Though the appellant has a contention that compensation granted for transportation to hospital and extra nourishment are too low, we find no merit in the said contention. We are of the view that the Tribunal considered the relevant aspects and granted appropriate compensation under the said heads. The appellant claimed an amount of `2,000/- towards damages **M.A.C.A.19/2013** 8 to clothing and other articles and the Tribunal has granted only`500/-. We are of the view that the appellant would be entitled to get `500/more under the said head. Under treatment expenses, the appellant claimed an amount of `6,00,000/- and the Tribunal granted `3,20,415/- taking into account Ext.A10 series of bills. In such circumstances, we do not find any reason for granting any further amount under the said head as the said amount was granted against the bills produced. Towards bystander expenses, the Tribunal granted only an amount of `5,550/- as against a claim of `12,800/- by granting `150/- per day for a period of 37 days. Taking note of the fact that the accident occurred on 25.8.2009, we are of the considered view that he bystanders expenses ought to have been `250/- per day. Based on such calculation, the appellant would be entitled to get `3,700/- additionally. Under the head pain and suffering, the appellant claimed an amount of `2,00,000/- and the Tribunal granted `30,000/-. Ext.A6 is the wound certificate. It would reveal that the appellant had sustained the following injuries:- **M.A.C.A.19/2013** 9 1. Segmental fracture of right tibia 2. central fracture dislocation of the acetabulum right 3. fracture of the left humerus 4. fracture posterio lateral wall of right orbit 5. crown fracture right upper central incisor 6. penetrating injury to the right eye with prolapse and retained foreign body in the right eye 7. central dislocation fracture right hip Evidently, she had been an inpatient in MIMS Hospital, Kozhikode from 25.8.2009 till 13-10-2009. Taking note of the nature of the injuries and the period of hospitalisation and the excruciating pain that she must have been put to suffer, we are of the view that the appellant is entitled to get slight enhancement under the head 'pain and suffering'. We fix the said amount at `50,000/-. In other words, the appellant would be entitled to get `20,000/- additionally under the said head. The appellant contended that the Tribunal granted only a meager amount of `20,000/- as against a claim of `1,00,000/- under the head loss of amenities of life. Taking note of the nature of the injuries, we do not find any reason to grant further enhancement of **M.A.C.A.19/2013** 10 compensation under this head. In the light of the above discussions and the enhancement which we have granted under different heads, the appellant is entitled to get an additional compensation of `1,92,320/-. The said enhanced amount will carry interest @ 8% from the date of the petition till realisation. The third respondent is directed to deposit the amount within a period of three months from the date of receipt of a copy of this judgment failing which the entire amount remaining to be paid will carry interest @ 9% per annum. There will be no order as to costs. **Sd/(JUDGE)** **C.T. RAVIKUMAR** **Sd/-** **MARY JOSEPH (JUDGE)** **spc/** **M.A.C.A.19/2013** 11 **C.T. RAVIKUMAR, J.** **M.A.C.A.19/2013** 12 **JUDGMENT September, 2010** **M.A.C.A.19/2013** 13