Gourikutty V.K. v. Biju, Babu Thomas & United India Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 25TH DAY OF OCTOBER 2016/3RD KARTHIKA, 1938 MACA.No. 1500 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 306/2008 of M.A.C.T., KOTTAYAM DATED 27-04-2012 APPELLANT(S)/PETITIONER: ------------------------------ GOURIKUTTY V.K., ERITHEDATH HOUSE, KUDAMALOOR P.O., AYMANAM VILLAGE. BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM RESPONDENT(S)/RESPONDENTS:-: ---------------------------- 1. BIJU, S/O.RAJAPPAN, THAIPARAMBIL, VADAKARA BHAGOM, VELOOR P.O.,PIN- 686 501. 2. BABU THOMAS, VELLOORKUNNEL, NADACKAL, TEEKOY P.O., PALAI - 686 580. 3. THE UNITED INDIA INSURANCE CO.LTD., KOTTAYAM - 686 001. R3 BY ADV. SMT.DEEPA GEORGE R3 BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& K.P.JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.1500 OF 2012 ==========================** Dated this the 25[th] day of October, 2016 ## **JUDGMENT** _Ravikumar, J._ The injured-claimant preferred this appeal seeking enhancement of the compensation granted by the Motor Accidents Claims Tribunal, Kottayam in O.P.(MV).No.306 of 2008. The said claim petition was filed under section 166 of the Motor Vehicles Act seeking compensation for the injuries sustained by the appellant in a motor vehicle accident that occurred on 5.8.2005. While she was walking through the southern side of Ettumanoor-Pala Road, she was knocked down by a bus bearing Reg.No.KL 5/Q 1107 driven by the first respondent. Owing to the absence of any dispute regarding the accident, the cause of the accident as also the insurance coverage of the said offending vehicle, the sole question to be considered in this 2 **M.A.C.A.1500/2012** case is regarding the entitlement of the appellant for enhanced compensation. In such circumstances, we do not think it necessary to issue notice to respondents 1 and 2. Consequently, issuance of notice to respondent 1 and 2 is dispensed with. 2.We have heard the learned counsel for the appellant and Smt.Deepa George, the learned counsel appearing for the third respondent-insurance company. 3.The learned counsel for the appellant contended that the Tribunal disregarded the specific averments of the petitioner in the claim petition regarding occupation and income and erroneously fixed the monthly income at `3,000/-. The appellant was aged 55 years on the date of the accident. She has taken up a specific contention in the claim petition that she is a tailor by profession and was also earning by conducting a poultry farm. In the claim petition, she claimed an amount of `4,000/- as the monthly income. **M.A.C.A.1500/2012** 3 4.The learned counsel for the third respondent submitted that despite taking up such averments regarding occupation and income, the appellant did not tender any evidence to substantiate her claim. When it is evident that the appellant had not tendered evidence to establish her averments regarding occupation and income, we have no hesitation to hold that the Tribunal cannot be found fault with in fixing the monthly income notionally. Therefore, the question is whether fixation of monthly income as `3,000/- treating her as housewife requires interference. In this context, it is relevant to refer to a decision of the Hon'ble Apex Court in **Lata Wadhwa v. State of Bihar [AIR 2001 SC 3218]** and also a Division Bench decision of this Court in **Krishnadas v. Henry Joseph [2011 (4) KLT 716].** In **Lata Wadhwa** 's case, the accident occurred in the year 1989 and the accident involved in **Krishnadas** 's case occurred in the year 2002. In both the said cases, the monthly income of the concerned victim of the accident was fixed as `3,000/-. As noticed hereinbefore, in this case, the appellant who is a housewife met with the accident on 5.8.2005. **M.A.C.A.1500/2012** 4 Evidently, fixation of the monthly income of a housewife is being done equating the services rendered by such a person in terms of money. Taking into account the period in which the accident occurred and the decisions referred above, we are of the view that it is only proper to fix the monthly income of the appellant treating her as a housewife at `4,000/-. Accordingly, `4,000/- is fixed as the monthly income. The Tribunal took only 8% permanent disability for calculation purpose. The learned counsel for the appellant contended that a perusal of the impugned award would reveal that no reason whatsoever was assigned by the Tribunal to ignore the certification under Ext.X1 disability certificate which is issued by a duly constituted medical board whereunder the permanent disability of the appellant was assessed as 9%. On perusing the impugned award, more particularly paragraph 11, we do not find any reason to disagree with the contention raised by the learned counsel for the appellant that no reason whatsoever was assigned by the Tribunal for reducing the percentage of disability. Taking note of the fact that the disability **M.A.C.A.1500/2012** 5 certificate was issued by a duly constituted medical board and finding that no reason whatsoever has been stated for reducing the percentage of disability and above all, taking note of the injuries, we are of the view that it is only proper to take the entire percentage of disability assessed by the medical board. Evidently, the multiplier was adopted with reference to the age of the injured-appellant at the time of the accident. In such circumstances, compensation for permanent disability has to be re-assessed with modified monthly income and also taking the percentage of permanent disability as 9%. On such reassessment, the appellant would be entitled to get an amount of `47,520/-. The Tribunal has already granted an amount of `31,680/-. After deducting the said amount, the appellant would be entitled to get an amount of `15,840/- additionally under that head. It is awarded. Ext.A5 wound certificate and Ext.A6 case records issued from Medical College Hospital, Kottayam as discussed in the impugned award would reveal that the appellant sustained the following injuries in the accident:- **M.A.C.A.1500/2012** 6 “Contusion chest, haematoma scalp, tenderness over the D6, D7 area, multiple abrasions right knee, left knee and tenderness over the symphysis pubis.” 5.Evidently, the appellant had been an inpatient in Medical College Hospital, Kottayam, for 3 days. It is evident from the medical records that the appellant sustained fracture of inferior pubis rami. Taking note of such aspects, we are of the view that the appellant must have endured enormous pain owing to the injuries sustained in the accident and an aftermath of the accident, she must have been deprived of enjoyment of life. In such circumstances, the appellant is entitled to get enhancement of compensation under the head 'pain and suffering' and also towards 'loss of amenities'. We are inclined to grant `8,000/- additionally under the head 'loss of amenities' and an additional amount of `600 under the head 'pain and suffering'. Based on the re-fixed monthly income and retaining the period taken by the Tribunal for loss of earning, the appellant would be entitled to get an additional sum of `4,000/- under head 'loss of earning'. It is granted. **M.A.C.A.1500/2012** 7 The nature of the injuries would reveal that the dresses worn by the appellant must have been damaged. We are inclined to grant `500/more under the head 'damage to clothes'. In the light of the enhancement made by us, the appellant is entitled to get an additional compensation of `34,340/-. It is awarded. The said amount will carry 8% interest from the date of the petition till realisation. The third respondent is directed to deposit the said amount along with interest thereon within a period of two months from the date of receipt of a copy of this judgment. The parties shall bear their respective costs. **Sd/-** **C.T. RAVIKUMAR** **(JUDGE)** **Sd/K.P.JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.1500/2012** 8 **M.A.C.A.1500/2012** 9 ## **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.1500/2012** 10