Geetha v. Sasi Nedumala and Satheesh T.M. and The Oriental Insurance Co. Ltd.

**MACA.No.2495 OF 2012** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943** ## **MACA.No.2495 OF 2012** **AGAINST THE AWARD IN OPMV 255/2009 DATED 28-03-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR** ## **APPELLANT/PETITIONER:** **GEETHA, W/O.BHARATHAN DAILY LABOURER, EDAMANA HOUSE, P.O. ENGANDIYOOR, THRISSUR DISTRICT.** ## **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS/RESPONDENTS:** |**1**|**SASI NEDUMALA**| |---|---| ||**408/04, NEDUMALA HOUSE, MANDALAM P.O.- 670 582,**| ||**VIA NDUVIL, THALIPARAMBU, KANNUR DISTRICT.**| |**2**|**SATHEESH T.M.**| ||**S/O MADHAVAN THALACHIRAYIL HOUSE,**| ||**POTTENPLAVU P.O. - 670 582,**| ||**NADUVIL VIA, THALIPARAMBU, KANNUR DISTRICT.**| |**3**|**THE ORIENTAL INSURANCE CO. LTD.**| ||**BRANCH OFFICE, TIRUR – 676 101.**| **R1, R3 BY ADV. SRI.A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29-03-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2495 OF 2012** **2** ## **JUDGMENT** ## **Dated this the 29th day of March 2021** The appellant was the petitioner in O.P.(MV) No.255/2009 on the file of the Motor Accidents Claims Tribunal, Tirur. The respondents in the appeal were the respondents in the claim petition. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act (in short “ Act”) claiming compensation on account of the injuries sustained by her in an accident on 19.10.2008. 3. The concise case of the appellant, relevant for the determination of the appeal, in the claim petition was that on 19.10.2008 while the appellant was working as a labourer in the premises of Sree Narayana Hall, Ethai, a Mahindra Pick Up van bearing Reg. No.KL59A/3397 (offending vehicle) driven by the 2nd **MACA.No.2495 OF 2012** **3** respondent in a rash and negligent manner hit the appellant. The appellant sustained grievous and was hospitalised as an inpatient at the West Fort Hospital, Thrissur on nine occasions. Even after her discharge from the hospital, she continued her treatment as an outpatient. She attended for review at the same hospital on 16 occasions. The appellant has become 100% disabled due to the accident. She was aged 45 years and was employed as a daily labourer earning a monthly income of Rs.4,500/-. The offending vehicle was owned by the 1[st] respondent and insured with the 3[rd] respondent. The respondents 1 to 3 were jointly and severally liable to pay compensation to the appellant which she quantified at Rs.14,70,500/-. 4. The respondents 1 and 2 did not contest the proceedings and were set ex parte. **MACA.No.2495 OF 2012** **4** 5. The 3[rd] respondent – Insurance Company – filed a written statement, admitting that the offending vehicle had a valid insurance coverage. However, the 3[rd] respondent denied that the accident was caused due to the negligence on the part of the 2[nd] respondent. The 3[rd] respondent contended that the claim putforth by the appellant was excessive. 6. The appellant and her attendant were examined as PW1 and PW2 respectively and Exts.A1 to A24 were marked through them. The disability certificates issued by the District Medical Board, General Hospital, Manjeri and the State Standing Disability Assessment Board, were marked as Exts.C1 and C2 in evidence. The case diary of the Town South Police Station in Crime No.254/1995 was marked as Ext.X1. 7. The Tribunal, after analysing the pleadings and materials on record, by the **MACA.No.2495 OF 2012** **5** impugned award allowed the claim petition, in part, by holding that the appellant was entitled to get a compensation of Rs.9,23,631/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation, excluding the attendant charges of Rs.,50,000/along with costs of Rs.15,000/-. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard Sri.P.V.Chandramohan, the learned counsel appearing for the appellant/petitioner and Sri.A.R.George,the learned counsel appearing for the 3rd respondent/Insurance Company. 10. The sole question that emanates for consideration is whether the quantum of compensation awarded by the Tribunal is justifiable or not? **MACA.No.2495 OF 2012** **6** 11. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equitability. 12. Ext.A5 final report filed by the Vadanappally Police Station in Crime No.784/2008 substantiates that the accident occurred solely due to the negligence on the part of the 2[nd] respondent. Ext.A1 FIR, A3 scene mahazar and Ext.A4-AMVI report corroborates with Ext.A5 final report. Exts.A6 **MACA.No.2495 OF 2012** **7** to A14, A22 and A23 substantiate that the appellant had undergone treatment for a period of more than three years. Exts.A16,17 and A24 series medical bills shows the expenses incurred by the appellant for her medical treatment. 13. The principal area of dispute in the appeal is with regard to the fixation of the notional income of the appellant and the fixation of permanent disability of the appellant. ## Permanent disability 14. The appellant was examined by the District Medical Board, District Hospital, Manjeri. The District Board by Ext.C1 report came to the conclusion that the appelland had a malunited fracture of the left tibia, shorterning of her leg segment about 3 cms., stiffness of her left ankle i.e, partial ambylosis of the right ankle, united fracture of the left **MACA.No.2495 OF 2012** **8** hameus and implant in situ, malunited fracture of the right ankle and that she is ambulant in her walk. She cannot do any manual labour in future and needed further surgery for the implant removal. The appellant had a permanent disability of 20% and loss of earning capacity of 100%. 15. In an appeal preferred by the appellant, the State Standing Disability Assessment Board found that the appellant's permanent disability is 40%. However, the State Standing Dissabililty Assessment Board did not assess the functional disability of the appellant. 16. The Police after investigation filed Ext.P5 charge-sheet finding that the 2[nd] respondent had hit the appellant and the offending vehicle had ran over both her thighs. In Ext.A2 wound certificate and Ext.A14 **MACA.No.2495 OF 2012** **9** discharge summary, it is noted that the appellant has a segmental facture tibia left with bimaleolar fracture right ankle with blackened skin right thigh and left leg. Taking note of the all the above fractures and after examining the appellant, the District Medical Board by Ext.C1 came to the conclusion that the appellant had a loss of earning capacity to the extent of 100%. This finding was not disputed by the respondents. 17. In an appeal filed by the appellant, the State Standing Disabililty Assessment Board found that the appellant has a permanent disability of 40%. However, the functional disability of the appellant was not assessed because that was not disputed before the State Assessment Board. Therefore it is only to be inferred that the findings of the District Medical Board with regard to the functional **MACA.No.2495 OF 2012** **10** disability of the appellant has merged with Ext.C2 and the appellant's functional disability is to be read as fixed by the District Medical Board at 100%. In the said circumstances, I am of the considered opinion, especially taking into consideration the fact that the appellant was a coolie worker and both her were thighs severely injured leaving her incapacitated, the appellant's functional disability is 100% and her permanent disability is 40% as per Exts.C1 and C2. Hence, I fix the functional disability of the appellant at 100%. ## Notional Income. 18. The appellant had claimed that she was a casual labourer earning an monthly income of Rs.4,500/- per month. The Tribunal fixed the appellant's notional income at Rs.4,000/- per month. 19. In **Ramachandrappa v. Manager,** **MACA.No.2495 OF 2012** **11** **Royal Sundaram Alliance** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4500/- per month. 20. Following the above parameter in the aforecited precedent, I am of the firm opinion that the appellant's notional income can safely be fixed at Rs.4,500/- per month. ## Loss due to disabillity with future prospects 21. In **Pappu Deo Yadav v. Naresh Kumar and others** [AIR 2020 SC 4424] and a whole line of earlier precedents on the point, the Hon'ble Supreme Court has held that along with the compensation under the head 'loss due to disability, future prospects is also to be awarded. 22. In the instant case, as the notional income is fixed at Rs.4,500/- and her permanent disability is 100% and she was 45 **MACA.No.2495 OF 2012** **12** years of age, the relevant multiplier is 14. Hence, the appellant is entitled for future prospects at 25% on the total compensation for loss due to disability., Accordingly, I re- fix the compensation for loss due to disability with future prospects at Rs.9,45,000/- instead of Rs.2,68,800/- awarded by the Tribunal. Loss of earnings 23. In view of the re-fixation of the notional income of the appellant at Rs.4,500/per month and taking note of the fact that the accident occurred on 19.10.2008 and the appellant had filed the claim petition on 26.3.2009, I am of the view that the appellant is only entitled for loss of earnings between the said period, i.e. for a period of five months because the permanent disability of the appellant has been fixed at 100% and future prospects at 25%. Hence, I fix the **MACA.No.2495 OF 2012** **13** compensation under the head 'loss of earnings' at Rs.22,500/- instead of Rs.60,000/- awarded by the Tribunal. ## Other heads of claim 24. With respect to the other heads of claim namely, Transportation, Clothing, Bystander expenses, Extra nourishment, Medical expenses, Pain and sufferings, Expenses for attendants and compensation for dis-figuration, I find that the Tribunal has awarded reasonable and just compensation. 25. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the aforecited decisions, I am of the firm opinion 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. **MACA.No.2495 OF 2012** **14** |SI.<br>No|Head of claim|Amount awarded (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings|60,000|22,500| |2|Transportation expenses|30,000|30,000| |3|Clothing|500|500| |4|Bystander expenses|13,300|13,300| |5|Extra nourishment|19,950|19,950| |6|Medical Expenses|4,36,081|4,36,081| |7|Pain and sufferings|35,000|35,000| |8|Compensation for dis-figuration|10,000|10,000| |9.|Expenses for Attendants|50,000|50,000| |10.|Loss due to disability with<br>future prospects|2,68,800|9,45,000| |||9,23,631|15,62,331| In result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.6,38,700/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation excluding the period of 135 days delay in preferring the appeal as ordered by this Court on 4.4.2018 in CM.Appl.No.2963/2012 and proportionate costs. The 3[rd] respondent shall deposit the enhanced compensation awarded in this appeal before the Tribunal with interest and **MACA.No.2495 OF 2012** **15** proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment, after deducting the liability of the appellant towards court fee/legal benefit fund, if any. The Tribunal shall disburse the additional compensation to the appellant, in accordance with law. **Sd/-** Ma/30.3.2021 /True copy/ **C.S.DIAS JUDGE**