Gracy Chacko v. Jayan, The Managing Partner M/S Dharmapriya Tours and Travels, National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY,THE 24[TH] DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA, 1943 MACA NO. 1974 OF 2009** **AGAINST THE COMMON AWARD DATED 30.03.2009 IN OPMV 259/2006 OF** ## **MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD APPELLANT/PETITIONER:** GRACY CHACKO, AGED 45 YEARS, W/O CHAKKUNNY, PALIAKKARA HOUSE, CHIYARAM, THRISSUR. BY ADVS. SRI.SHEJI P.ABRAHAM SMT.GISA SUSAN THOMAS ## **RESPONDENTS/RESPONDENTS:** - 1 JAYAN, S/O NARAYANAN, KOONAKKAMPILLY HOUSE, POOMANGALAM VILLAGE, EDAKKULAM, THRISSUR - 2 THE MANAGING PARTNER M/S DHARMAPRIYA TOURS AND TRAVELS, , KIZHAKKUPEEDIKA, IRINJALAKKUDA, THRISSUR DISTRICT. - 3 NATIONAL INSURANCE COMPANY LIMITED KOLLANNUR DEVASSY SMARAK BUILDING, ROUND NORTH, THRISSUR, POLICY NO. 570701/31/05/6300003659, VALID FROM 03.08.2005 TO 02.08.2006 BY ADV LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No1974-2009 ## **Dated this the 24[th] day of November, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.259/2006 on the file of the Motor Accidents Claims Tribunal, Ottapalam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that she sustained in an accident on 27.12.2005. It was her case that, on the aforesaid date, while she was travelling in a bus bearing registration No.KL 8V 4060 (bus), when the bus reached Sholayur, the 1[st] respondent negligently applied the brakes of the bus. The appellant sustained serious injuries, including a spiral fracture to the shaft 3 MACA No1974-2009 of the humarus right lower 3[rd] . She was treated as an inpatient at the Elite Mission Hospital, Thrissur, for a period of 13 days in two spells. The bus was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The appellant was a home maker and was earning a notional monthly income of Rs.3500/-. Hence, the appellant claimed a compensation of Rs.2,42,500/- from the respondents, but limited the claim to Rs.1,50,000/- 3. The respondents 1 and 2 did not contest the proceedings and were set exparte. 4. The third respondent had filed a written statement refuting the allegations in the claim petition. The third respondent disputed the age and income of the appellant. However, it was admitted that the bus had a valid insurance policy. 5. The appellant was examined as PW1 and Exhibits A1 to A10 series were marked in evidence. The third respondent produced the insurance policy, which was marked as Exhibit B1. 4 MACA No1974-2009 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the 3[rd] respondent an amount of Rs.57,880/- with interest and a cost of Rs.1500/-. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard Sri. Sheji P. Abraham, the learned counsel appearing for the appellant and Sri. Lal George, the learned counsel appearing for the 3[rd] respondent/insurer. 9. The question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Exhibit A5 charge sheet filed by the Malakkapara police in Crime No.1/2006 substantiates that the accident occurred due to the negligence of the 1[st] respondent. Admittedly, the 2[nd] respondent was the 5 MACA No1974-2009 owner and the 3[rd] respondent was the insurer of the bus. The respondents have not let in any evidence to discredit the charge sheet. The third respondent has also not proved that the 2[nd] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 2[nd] respondent arising out of the accident. ## **Income** 11. The appellant had claimed that she was a home maker and she was having a notional monthly income of Rs.3500/-. 12. In **Rajendra Singh V. National Insurance Company Ltd** [2020 (4) KLT 6(SC)], the Honourable Supreme Court has fixed the notional income of a home maker at Rs.5000/- per month. 13. In the instant case, as the appellant has claimed that she was having a notional income of Rs.3500/-, I fix the notional monthly income of the appellant, following 6 MACA No1974-2009 the yardstick in **Rajendra Singh** (supra), at Rs.3500/-. ## **Multiplier** 14. The appellant was aged 45 years at the time of the accident. Going by the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘14’. ## **D isability** 15. The appellant had produced Exhibit A8 disability certificate issued by the Doctor who treated her, wherein it is certified that the appellant has a permanent disability of 10% as per the MC Bride scale. It was found by the Doctor that the appellant has restriction of movements of her right shoulder, abduction and external rotation, pain on the right shoulder, limitation of movement of the right shoulder and right elbow and weakness of her right wrist. Nevertheless, the Tribunal, for the reason that the 7 MACA No1974-2009 appellant had not examined the doctor who issued Exhibit A8, has fixed the permanent disability of the appellant at 4%. 16. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable supreme Court has categorically held that what needs to be looked into in a case of injury, is the functional disability of the injuredclaimant. It is also observed that, if the Tribunals are not satisfied with the disability certificate produced before it, it is the bounden duty of the Tribunal to refer the injured-claimant to a duly constituted Medical Board. 17. In the case at hand, the Tribunal, after marking, accepting and referring to Exhibit A8, refused to accept the assessment in Exhibit A8 for the reason that the Doctor was not examined. The course adopted by the Tribunal is erroneous and unsustainable in law, especially in view of the ratio laid down in **Raj Kumar** 8 MACA No1974-2009 (supra) **.** 18. On a re-appreciation of Exhibit A8 and considering the fact that the appellant was a home maker, I hold that the assessment made by the Doctor in Exhibit A8 is the functional disability of the appellant. Hence, I fix the functional disability of the appellant at 10% as certified in Exhibit A8. ## **Loss due to disability** 19. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.3500/-, the multiplier at 14 and functional disability at 10%, I fix the compensation for ‘loss due to disability’ at Rs.58,800/-, instead of Rs.12,480/- awarded by the Tribunal. ## **Loss of earnings** 20. The Tribunal has found that the appellant was indisposed for a period of three months, which I find to be reasonable and just. However, in view of the re- 9 MACA No1974-2009 fixation of the notional monthly income of the appellant at Rs.3500/-, I re-fix the compensation for ‘loss of earnings’ at Rs.10,500/- instead of Rs.6000/- awarded by the Tribunal. ## **Loss of amenities** 21. Even though the appellant had claimed compensation for ‘loss of amenities’ to the tune of Rs.30,000/-, the Tribunal has not awarded any amount under the said head. 22. Taking into account the fact that the appellant was treated as inpatient for a period of 13 days, she was indisposed for a period of three months, her functional disability is 10%, I award an amount of Rs.10,000/towards loss of amenities. ## **- By stander expenses** 23. It is on record, as evidenced by Exhibit A7 discharge summary, that the appellant was treated as inpatient for a period of 13 days. The Tribunal has 10 MACA No1974-2009 awarded only an amount of Rs.1900/- towards bystander expenses, which according to me is on the lower side. I re-fix the by-stander expenses at Rs.250/- per day for a period of 13 days, which works out to Rs.3250/-. 24. With respect to other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 25. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I hold 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. |SI.<br>No|Head of claim|Amount<br>awarded (in<br>rupees)|Amounts<br>modifed and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings|6000|10500| |2|Transportation and clothing|3000|3000| |3|By stander expenses|1900|3250| |4|Medical expenses|24500|24500| |5|Pain and suferings|10000|10000| |6|Loss of amenities|0|10000| 11 MACA No1974-2009 |7|Loss due to disability|12480|58800| |---|---|---|---| ||||| ||Total|57880|120050| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.62,170/- with interest on the said amount at the rate of 8% per annum from the date of petition till the date of deposit and a cost of Rs.5000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the compensation amount to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** rmm24/11/2021