Fousia v. Ragupathy and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 15TH DAY OF JANUARY 2016/25TH POUSHA, 1937 MACA.No. 396 of 2012 () -----------------------AGAINST THE AWARD IN OPMV 920/2006 of M.A.C.T., PALAKKAD DATED 08-11-2011 APPELLANT(S):PETITIONER ------------------------------ FOUSIA W/O.NAVAS, RESIDING AT ERUMAYOOR, PALAKKAD DISTRICT. BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD RESPONDENT(S):RESPONDENTS ----------------------------------- 1. G. RAGUPATHY S/O.GANAPATHY GOUNDER RESIDING AT GANAPATHY GOUNDER THOTTAM, K.G.CHAVADI P.O.MADUKKARAI, COIMBATORE, TAMILNADU-641 105. 2. K.SAKTHIVEL - S/O.KALLAPPAN, RESIDING AT 10/AYYANPATHI, C.K.PUDUR K.K.CHAVADI, COIMBATORE, TAMILNADU-641 001. 3. THE NEW INDIA ASSURANCE COMPANY LIMITED. DIVISIONAL OFFICE-IV, S.N.V.CHAMBERS, III FLOOR 482/483, CROSS CUT ROAD, GANDHIPURAM COIMBATORE, TAMILNADU-641 001. 4. C.A.SIDDIQUE - RESIDING AT CHATHANKULAM HOUSE, KOTTAPURAM P.O. MANGAD, THRISSUR-680 584. 5. NAVAS - S/O.ISMAIL CHEMMANADA, ERUMAYOOR, PALAKKAD-678 546. 6. THE NEW INDIA ASSURANCE COMPANY LIMITED P.B.NO.43, N.S.TOWERS, NEAR STADIUM BUS STAND COIMBATORE ROAD, PALAKKAD-678 001. R6 BY ADV. SRI.RENI ANTO KANDAMKULATHY BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & MARY JOSEPH, JJ.** ## **--------------------------------------------M.A.C.A.No.396 OF 2012 ---------------------------------------------** Dated this the 15[th ] day of January, 2016 ## **JUDGMENT** _Ravikumar, J_ . The appellant/petitioner met with an accident on 20.2.2006 at about 9.15 a.m near Ettimadai-Kaliyapuram Road while riding as a pillion rider on the motorcycle driven by her husband. When they reached the said place, the offending vehicle viz., a tractor bearing Reg.No.TN 37 AK/5683 driven by the second respondent in a rash and negligent manner from west to East through Kaliyapuram Road hit on the motorcycle. Consequently, both of them fell down and the tractor ran over her legs. Immediately, the appellant was taken to Nataraj Hospital, Madukkarai and after giving first aid, she was referred to Ganga Hospital, Coimbatore. She had been an inpatient there till 17.3.2006 and thereafter, intermittently she had to get admitted in different hospitals to undergo treatments. She was an inpatient from 3.4.2006 to 10.4.2006, 3.5.2006 to 10.5.2006, 15.5.2006 to 21.5.2006 and 19.10.2007 to 26.10.2007. Ext.A7 M.A.C.A.396/2012 2 wound certificate would reveal that she sustained the following injuries:- - 1)Right leg:Major crush injury of the right leg at the lower third level exposing the fracture bone and the crushed muscles. The distal foot is pink and warm. - 2)There is lacerated wound 5x3 cm over the midleg region exposing the muscles and the fractures fibula, sensations could not be assessed in view of patient being in agitated state. - 3)Pain and tenderness over pelvic region. X-ray reports: Pelvis:Left inferior public ramus fracture It is in the said circumstances that she approached the Motor Accidents Claims Tribunal, Palakkad by filing O.P.(MV).No.920 of 2006 under section 166 of the Motor Vehicles Act claiming a total compensation of `15,83,000/-. It was jointly tried along with O.P.(MV).No.919 of 2006 filed by her husband who also sustained injuries in the accident. 2. On the side of the appellant, the doctor who issued A16 M.A.C.A.396/2012 3 disability certificate was examined as PW1 and Exts.A1 to A21 were got marked. The respondents did not adduce any evidence, either oral or documentary. After carefully analysing the evidence on record as also the arguments advanced by both sides, the Tribunal passed an award for an amount of `4,88,000/- with interest at 7.5% per annum from 18.9.2006 till realisation and with costs. This appeal has been preferred seeking enhancement of the compensation awarded by the Tribunal contending that the Tribunal has failed to award just compensation. 3.We heard the learned counsel for the appellant Sri.T.C.Suresh Menon and Sri.Renil Anto Kandamkulathy, the learned counsel appearing for the Insurance Company. The contention of the learned counsel for the appellant is that the Tribunal erroneously estimated the compensation for incurring disability and for that purpose, the petitioner was considered as a student and her annual income was notionally fixed as `15,000/- It is discernible from the claim petition itself that she is the wife of one M.A.C.A.396/2012 4 Navas and the very case that she sustained the injuries for which she seeks for compensation occurred while travelling as a pillion rider on the motor cycle driven by her husband. In that context, it is pertinent to note that in the accident, he too sustained injuries and for getting compensation, he had also filed O.P.(MV).No.919 of 2006 before the Tribunal. Both the claim petitions were tried together. It is the submission that despite such facts borne out from the records, the Tribunal failed to reckon the monthly income of the appellant going by the settled position of law enabling to treat her as house wife and to equate her service to the family, in terms of money. Evidently, for the purpose of computing the compensation for her permanent disability, her annual income was fixed notionally at `15,000/- treating her only as a student. It is the submission that the method adopted by the Tribunal in assessing the compensation under the said head is therefore nothing but an erroneous estimation and it calls for interference. It is further contended that though an amount of `1,00,000/- was claimed towards future treatment, the Tribunal has not granted any amount. It is the further submission M.A.C.A.396/2012 5 that Ext.A9 would reveal the disability incurred by the appellant as a result of the accident and going by the said disability certificate which was proved by PW1, her permanent disability is 30% for the whole body. Ext.A7 wound certificate would reveal that in the accident, the appellant sustained a major crush injury on the right leg at the lower 3[rd] level exposing the fractured bone and crushed muscles. Apart from that, there was a lacerated wound having a size of 5x3 cms over the mid leg region exposing the fractured bone and crushed muscles. Ext.A16 would reveal that owing to the accident, she had 5cms shortening of right leg and she is using a shoe raise. It is contended that taking into account the injuries sustained as also permanent disability incurred, the Tribunal was not justified in declining compensation under the head future treatment. It is the further submission that towards transportation expenses, an amount of `10,000/- was claimed. However, only an amount of `4,000/was granted despite the fact revealed from the records that at least on five occasions the appellant was hospitalised. In such circumstances, it is contended that there was absolutely no reason M.A.C.A.396/2012 6 for declining transportation expenses as claimed. For the same reasons, it is contended that disinclination to grant the amount claimed towards extra nourishment is also liable to be interfered with. Under that head, as against a claim of `5,000/-, only an amount of `2,000/- was granted by the Tribunal. Towards the compensation under the head 'pain and suffering', an amount of `50,000/- was claimed and only an amount of `25,000/- was granted. It is contended that taking into account the nature of the injuries sustained by the appellant as borne out from Ext.A7 wound certificate and Ext.A12 discharge summary and also taking note of the duration of the treatment, there was absolutely no reason for not granting the entire amount claimed under the said head. The learned counsel further contended that against a claim of `50,000/- under the head loss of amenities and conveniences, the Tribunal has granted only a meagre amount of `10,000/-. It is contended that Ext.A16 would reveal that there was shortening of right leg of the appellant by 5cms as a result of the accident. In such circumstances, there was no justification or reason for declining the amount M.A.C.A.396/2012 7 claimed under the said head. In the said circumstances, it is contended that enhancement of compensation under the aforesaid heads is required to set right the illegality and the redress the grievances regarding denial of just compensation. 4.Per contra, the learned counsel for the third respondent contended that in the claim petition what was stated is that the appellant/petitioner was a plus-two student aged 19 years. Therefore, the Tribunal cannot be found fault with, in not taking the monthly income treating the appellant as a house wife and also for fixing the annual income notionally at `15,000/-. It is further submitted that a perusal of the award would reveal that under the other heads also, the Tribunal granted reasonable and adequate compensation. In short, it is contended that the appellant has failed to bring out a case warranting an appellate interference. 5.The provision for awarding compensation for bodily injuries and death arising out of the provisions under the M.V.Act is a social M.A.C.A.396/2012 8 welfare legislation. A perusal of the impugned award would reveal that it is a common award passed in OP(MV).Nos.919 and 920 of 2006. The captioned appeal has been preferred against the award in OP(MV) No. 920 of 2006. O.P.(MV) 919 of 2006 was filed by the husband of the appellant. It is also to be noted that in the claim petition (OP(MV) No. 920 of 2006), it has been specifically stated that she is the wife of Navas and she sustained injuries on 20.2.2006 while riding as a pillion rider on the motorcycle driven by her husband. The fact that the Tribunal has also took note of the fact that the appellant herein is the wife of the petitioner in O.P.(MV). No.919 of 2006 is evident from the impugned judgment itself. In paragraph 2 of the common judgment it is stated thus:- “On 20.02.2006, at about 9.15 A.M. the petitioner was riding the motor cycle, KL8P/4224 through Coimbatore-Palakkad road with his wife Fousia, (the petitioner in OP(MV) 920/06) as a pillion rider, when the motor cycle reached Ettimadai-Kaliyapuram Road, the Tractor bearing registration No.TN 37 AK/5683 driven by R2 in rash and negligent manner came from West to East and was suddenly turned towards Kaliyapuram road without showing any signal, due to which, it hit the motor cycle.” M.A.C.A.396/2012 9 True that she was a plus two student at the relevant point of time. It is to be noted that the very cause title of O.P.(MV).No.920 of 2006 itself would reveal that she disclosed the fact that she is the wife of Navas. None of the respondent disputed her status as the wife of the petitioner in O.P.(MV).No.919 of 2006 who drove the motor cycle involved in the accident. Obviously, the claim petitions filed by the appellant herein and her husband were jointly enquired into by the Tribunal and a common award was also passed by the Tribunal. In the said circumstances, we are of the view that merely because in the claim petition the appellant stated that she is a plus two student, that itself should not have been a reason for the Tribunal to deprive the benefit to which she is entitled to, by virtue of her position as a housewife, in the matter of computation of compensation. When once it is evident that the claimant is a married lady, there is absolutely no reason for declining her the said status as also the benefit to which she is entitled to, by virtue of the said status. Pursuing with the studies even after the marriage cannot be a reason for depriving the appellant the due benefits by virtue of her M.A.C.A.396/2012 10 indisputable status as a house wife. Therefore, for the purpose of computing the compensation for incurring permanent disability, the monthly income of the appellant ought to have been fixed by the Tribunal treating her as a house wife. In the case of an unemployed, married lady, even on modest estimation by equating her services as a house wife in terms of money, the monthly income has to be fixed notionally as `3,000/-. The said position is settled by the Hon'ble Apex Court in **Lata Wadhwa v. State of Bihar [AIR 2001 SC 3218]** . The mere fact that the Hon'ble Apex Court fixed `3,000/- as the monthly income notionally in the case of house wives between the age group 34-59 years cannot be a reason for depriving that benefit to the appellant. Going by the said decision, in the case of house wives above the aforesaid age group, the notional income has to be `2,000/-. Then what about the case of house wives below the age of 34 years. It can, under no circumstances, be less than `3,500/-. A Division Bench of this Court in **Krishnadas v. Henry Joseph [2011 (4) KLT 716]** held that in the case of contribution of the mother or wife, the monthly income can safely be assumed as M.A.C.A.396/2012 11 `3,000/-, following the decision in **Lata Wadhwa's case** (supra). In the said circumstances, in the light of the decision in **Lata Wadhwa's case** (supra) and **Krishnadas** 's case (supra), we have no hesitation to hold that the Tribunal went wrong in fixing the annual income of the appellant notionally as `15,000/-. Going by the decisions referred (supra), the appellant should have been treated as a house wife and recognising her status as housewife and considering the fact that she was then aged only 19 years, her monthly income should have been taken as `3,000/- for the purpose of assessing compensation. In the said circumstances, we are of the view that the assessment of compensation by the Tribunal under different heads has to be re-assessed taking into account the relevant aspects. Indisputably, the appellant/petitioner had been an inpatient for 51 days. True that the appellant/petitioner had not claimed compensation under the head bystander's expenses. We have already taken note of the injuries sustained by the appellant as a result of the accident. They would undoubtedly reveal the fact that the appellant must have had the services of a bystander at least M.A.C.A.396/2012 12 during the period of treatment. Ext.A8 series would reveal that the appellant had been an inpatient from 3.4.2006 to 10.4.2006, 3.5.2006 to 10.5.2006, 15.5.2006 to 21.5.2006 and from 19.10.2007 to 26.10.2007. The learned counsel for the appellant contended that the appellant was admitted in the hospital on the date of the accident itself viz., on 20.2.2006 and she was discharged from the hospital only on 17.3.2006. Considering the nature of the injuries, there is no room for any doubt that immediately after the accident she must have been taken to a hospital. So also, taking note of the injury there is absolutely no reason to doubt the duration of hospitalisation. In such circumstances, we do not find any reason to discard the submission that the appellant had been an inpatient for a period of 51 days. The incident occurred in 2006. In such circumstances mentioned above, we are inclined to grant an amount of `250/- per day under the head bystanders expenses and therefore, the appellant is entitled to get an amount of `12,750/-. Obviously, the Tribunal granted an amount of `10,000/- under the head bystanders expenses though that was not specifically claimed. In such circumstances, the M.A.C.A.396/2012 13 appellant is entitled to get an amount of `2,750/- additionally under the said head. The injuries sustained by the appellant as a result of the accident revealed from Ext.A7 would undoubtedly suggest that she must have endured the excruciating pain. In fact, Ext.A7 would reveal that she sustained a major crush injury on the right leg at the 3[rd] lower level exposing the fractured bone and crushed muscles. That apart, she sustained lacerated wound having size 5x3 cms over the mid leg region exposing muscles and fractured tibula. There was tenderness and pain over the pelvis region noted in Ext.A7. As noticed hereinbefore, she had been an inpatient for 51 days. In such circumstances, we are of the view that the Tribunal was not justified in declining the entire sum claimed under the head pain and suffering viz., `50,000/- and granting only `25,000/-. In such circumstances, we award `25,000/- more under the head 'pain and suffering'. Loss of amenities embraces everything which reduces the enjoyment of life and any disability which would interfere with or prevent the pursuit of the former activities. In this case, owing to the injuries sustained in the accident, the appellant had 5cms M.A.C.A.396/2012 14 shortening of right leg and thereby she was forced to use shoe raise. In such circumstances, it has to be said that the injured was deprived of the ordinary experiences and enjoyments of the life owing to the nature of the injury and its ultimate impact. We do not find any reason for rejecting the sum claimed by the appellant under the head loss of amenities and conveniences viz., `50,000/-. We are of the view that the Tribunal has erroneously estimated the compensation under the said head at `10,000/-. In such circumstances, the appellant is entitled to get an amount of `40,000/- additionally under the aforesaid head. As noticed hereinbefore, the main grievance of the appellant is that owing to the failure on the part of the Tribunal in following the decision of the Hon'ble Apex Court in **Lata Wadhwa's** case (supra) which was followed by this Court in **Krishnadas** 's case (supra) instead of taking the monthly income of the appellant as `3,000/- the compensation for permanent disability was assessed treating her as a student and taking the annual income as ` 15,000/-. We have already taken note of the dictum laid down by the Hon'ble Apex Court in **Lata Wadhwa'** s case (supra) which M.A.C.A.396/2012 15 was followed by this Court in **Krishnadas** 's case (supra). Going by the aforesaid decisions, it can only be said that the Tribunal went wrong in taking the annual income of the appellant notionally at `15,000/-. In fact, the Tribunal was bound to take the monthly income of the appellant recognising her status as housewife, at `3,000/-. We do not find any reason for not treating her as a house wife for the aforesaid purpose solely because her age do not belong to the age group 34-59 years. The other factors which are relevant for the purpose of computing the compensation under the head permanent disability were correctly taken by the Tribunal. In such circumstances, taking the monthly income of the appellant as `3,000/-, the compensation to which the appellant is entitled for the permanent disability has to be re-assessed. Going by the calculation following the same formula but taking the monthly income of the appellant as `3,000/-, she is entitled to get an amount of `1,94,400/-. The impugned award would reveal that under the said head, the Tribunal has already granted an amount of `81,000/-. Hence, the said amount has to be deducted to find out the compensation to M.A.C.A.396/2012 16 which the appellant is actually entitled under the said head. In the light of such calculation, the appellant is entitled to get an additional amount of `1,13,400/- under the said head. True that the appellant had not claimed for any amount under the head loss of earning. The appellant after sustaining serious injuries had been under treatment for a long period. Evidently after the incident, she was admitted in the hospital on 20.2.2006 and the last admission as inpatient going by Ext.A8 series was on 19.10.2007 and she was discharged on 26.10.2007. We have already taken the monthly income of the appellant as `3,000/-. While considering the question whether the appellant is entitled to get compensation under the head loss earning, it is only worthwhile to refer to the decision of the Apex Court in **Raj Kumar v. Ajay Kumar** [( **2011)1 SCC 343]** . It was held therein that the very object of awarding damages to a victim in a motor vehicle accident is to make good the loss suffered as a result of wrong done as far as money could do so, in a fair reasonable and equitable manner. It was further held therein that a person is not only to be compensated for the physical injury, but also for the loss M.A.C.A.396/2012 17 which he suffered as a result of such injury. In such circumstances, we are of the view that the appellant is entitled to a reasonable compensation under the head loss of earning, as well. We have already taken the monthly income of the appellant as `3,000/-. In view of the duration of the treatment undergone by the appellant mentioned hereinbefore, we have no hesitation to say that the family lost her services at least for a period of six months. In such circumstances, we award an amount of `18,000/- to the appellant under the said head. Another question to be decided in the circumstances is whether the Tribunal was justified in declining the compensation claimed by the appellant under the head future treatment. Considering the nature of the injuries sustained by the appellant and the consequential impact, we are of the view that the appellant is entitled to get some amount towards future treatment. The appellant has claimed an amount of `1,00,000/- under the said head. Taking into account all such circumstances, we are of the view that it would only be reasonable to grant an amount of `30,000/- under the said head for the appellant to undergo future M.A.C.A.396/2012 18 treatment and for the incidental expenses for undergoing such treatment. Taking note of the number of hospitalisation, the amount granted towards transportation expenses require modification and we fix it as `10,000/-. In other words, the appellant is entitled to get `6,000/- more under that head. Towards extra nourishment, only an amount of `2,000/- was granted by the Tribunal. Taking note of the period of hospitalisation viz., 51 days, we award an amount of `3,100/- more under the said head. In view of the enhancement given by us under different heads, the appellant is entitled to get a total enhanced amount of `2,38,250/- which is rounded off to `2,38,500/-. Out of the said enhanced amount, `30,000/- was awarded by us towards the future treatment. Therefore, the said amount would not carry interest. In such circumstances, it is made clear that the enhanced amount of `2,38,500/- less `30,000/- alone would carry interest at 8% from the date of the petition till realisation. The third respondent is directed to deposit the enhanced amount, together with interest, as aforesaid, within two months from the date of receipt of a copy of this judgment failing which the M.A.C.A.396/2012 19 amount remaining to be paid will carry interest @ 9% per annum from the date of filing of the petition. There will be no order as to costs. **Sd/-** **(C.T. RAVIKUMAR)** **JUDGE** **Sd/-** **(MARY JOSEPH) JUDGE** **spc/**