Jagee John v. C. Gopinathan, Jayarajan and M/s Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 4TH DAY OF MARCH 2016/14TH PHALGUNA, 1937 MACA.No. 1722 of 2006 (D) -------------------------- AGAINST THE AWARD IN OPMV 1270/1999 of M.A.C.T.,ATTINGAL DATED 03-01-2006 APPELLANT/APPLICANT:: --------------------- JAGEE JOHN, D/O.LATE P.C.JOHN, PARAVILA OASIS, PULAMON P.O, KOTTARAKKARA, KOLLAM DISTRICT. BY ADV. SRI.SANDESH RAJA.K. SRI.V.SHANKAR RESPONDENTS: -------------- ## 1. C.GOPINATHAN S/O.CHELLAPPAN, KAKKOTTUKONAM, PARASSALA P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. ## 2. JAYARAJAN, S/O.RAMAYYAN NADAR, THATTARAKKUZHIVILAKOM VEEDU, NEAR GOVT.U.P.S., CHENKAL, CHENKAL.P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 3. M/S. ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE NO.II, ST.MARY VILLA, ULLOOR MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. R3 BY ADV. SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -----------------------------------------------------------------M.A.C.A.No.1722 of 2006 -----------------------------------------------------------------Dated this the 4[th] day of March, 2016** ## **JUDGMENT** ## Anil K.Narendran, J. The appeal is for enhancement of the compensation awarded by the Tribunal in respect of injuries, pursuant to the road traffic accident occurred on 13.9.1998. 2. The factual position revealed from the proceedings is that the claimant was a passenger in a Maruti Esteem Car bearing No.KL-2D/4505 going along the Trivandrum-Kollam N.H. from North to South direction. When the car reached at Mangalapuram Junction, a lorry bearing No.KL-2B/833 came from the opposite direction, driven by the 2[nd] respondent, and dashed against the car causing serious injuries, which led to the claim petition filed by her before the Tribunal seeking to compensate the loss. 3. The matter was contested mainly by the 3[rd] respondent/insurance company. The nature of contention raised by the 3[rd] respondent/Insurance Company was mainly on quantum and negligence. M.A.C.A.No.1722 of 2006 2 4. The claim petition was tried along with connected cases. The evidence adduced before the Tribunal consists of Exts.A1 to A61 and the oral evidence of PWs.1 to 8 on the side of the claimants. Ext.X1 is the C.D.File. The respondents have not chosen to adduce any oral or documentary evidence. 5. Based on the relevant materials on record, the Tribunal arrived at a finding that the accident occurred solely because of the negligence on the part of the driver of the lorry and proceeded to fix the compensation accordingly. 6. Referring to serious consequences resulted because of the injury a total sum of ₹5,00,000/- was claimed. Awarding amounts under different heads, total compensation was fixed by the Tribunal as ₹75,500/-, which was directed to be satisfied with interest @9% per annum. The liability accordingly mulcted upon the shoulders of the 3[rd] respondent/insurance company. 7. Inadequacy of compensation is the subject matter of challenge in this appeal. 8. Heard the learned counsel for the appellant as well as the learned counsel for the 3[rd] respondent insurer. M.A.C.A.No.1722 of 2006 3 ## 9. The nature of injuries sustained by the appellant as discussed in paragraph 13 of the Award reads thus:- “Head injury with contusion in the right superior parietal region, fracture through the mastoid air cells, soft tissue thickness with air, livery injury with contusion in right lobe of liver, abdominal injury, IUD of 15 weeks and 5 days old foetus lacerated wound 10x6cm parietal scalp and lacerated wound through upper lip 4x2cm.” 10. The amounts awarded by the Tribunal under different heads as given in paragraph 15 are as follows:- ||₹| |---|---| |Pain and suffering|15,000/-| |Transport to hospital|3,000/-| |Extra nourishment|2,000/-| |Damage to clothing|500/-| |Compensation for|| |bystanders’ fee|5,000/-| |Loss of amenities|10,000/-| |Loss of earning|10,000/-| |Hospitalisation and|| |Treatment|15,000/-| |Medical bills|15,000/-| ||---------| ||₹75,500/-| ||======| M.A.C.A.No.1722 of 2006 4 11. At the time of accident the appellant was aged 26 years. She was holding Ext.A57 diploma certificate for Interior Decoration from the University of Pensylvania. 12. The specific case put forth by the appellant was that her pregnancy was actually aborted as the foetus was dead as a result of the accident. The appellant has also contended that she was having traumatic headache and connected ailments. Ext.A38 wound certificate would show the injury sustained by the appellant and Exts.A39 and A40 discharge cards would show the inpatient treatment undergone by her for a total period of 27 days. Ext.A55 C.T. scan report of brain and Ext.A56 ultrasound scan report of abdomen proved the injuries sustained by the appellant. The Doctor, who was examined as PW.6 deposed that no damage was seen to the uterus. The appellant has also produced no documents to prove that she had any permanent disability as a result of the injuries sustained in the accident. 13. The learned counsel for the appellant mainly contended that, since the pregnancy was aborted as the foetus of nearly 4 months old was found dead as a result of the accident, M.A.C.A.No.1722 of 2006 5 the Tribunal should have awarded adequate compensation for loss of foetus, even though such a claim was not specifically made in the claim petition. The fact that the pregnancy of the appellant was aborted as the foetus was found dead in the accident is not in dispute. The foetus is a part of the human body and when the pregnant woman looses the foetus she obviously suffers pain and suffering. 14. A Division Bench of this Court in **Manikuttan T.R. v. M.N.Baby and others (2008(4) KLT 539)** awarded a separate compensation of 10,000/- to the appellant therein under the₹ head loss of foetus, taking note of the fact that substantial compensation has already been awarded to him on account of the death of his wife who was admittedly 4 months pregnant. The Division Bench awarded a further sum of 5,000/- to the mother₹ of the deceased as compensation for loss of foetus, stating that but for the death of her pregnant daughter, she would have had a grandchild. In **Manikuttan's** case (supra) the Division Bench has relied on another Division Bench decision of this Court in **Oriental Insurance Company Ltd. v. Rasheed (2004 (3)** M.A.C.A.No.1722 of 2006 6 **KLT 552)** upholding grant of a specific compensation of ₹25,000/- for the death of foetus while awarding compensation for the death of a pregnant woman (who was in the advanced stage of pregnancy) consequent upon a motor accident. Taking note of the principle laid down in the judgments referred to supra and considering the fact that, in the instant case the claim petition is filed by the pregnant woman who lost her foetus of nearly 4 months old, due to the injuries sustained in the accident, we deem it appropriate to award a sum of **₹40,000/-** as compensation towards loss of foetus. 15. As far as the compensation awarded by the Tribunal under other heads are concerned, towards pain and suffering the Tribunal awarded a sum of ₹15,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, we deem it appropriate to re-fix the compensation as ₹25,000/-, resulting an additional compensation of **₹10,000/-** under this head. 16. Similarly for loss of amenities the Tribunal has granted only a sum of 10,000/-. The appellant claimed a monthly income₹ M.A.C.A.No.1722 of 2006 7 of 5,000/- as Fashion Designer and claimed loss of earning for a₹ period of one year. However, no reliable materials were produced before the Tribunal to prove her monthly income, except producing her diploma certificate and mark sheet as Exts.A57 and A58. The appellant has also not chosen to enter the box. Considering the fact that the accident occurred in the year 1998 and that at the time of accident the appellant was an able bodied person aged 26 years, we deem it appropriate to fix the monthly income of the appellant notionally at 4,000/- for granting loss of₹ earning. Considering the nature of injuries sustained and the inpatient treatment she had undergone for 27 days in different hospitals, we deem it appropriate to award loss of earning for a period of 5 months. Accordingly, the compensation under this head is re-fixed as ₹20,000/resulting an additional compensation of **₹10,000/-** (20,000-10,000). Considering the nature of injuries sustained and the discomfort/disability that may arise therefrom, we deem it appropriate to re-fix the compensation under the head loss of amenities as 15,000/- resulting an additional sum of ₹ **₹5,000/-** M.A.C.A.No.1722 of 2006 8 under this head. 17. The compensation awarded by the Tribunal under other heads represents just and reasonable compensation, which requires no interference in this appeal. In the result, the appellant will be entitled to get an additional compensation of **₹65,000/-** in this appeal together with interest @9% per annum from the date of petition till the date of realisation. Since the insurance coverage of the vehicle is not in dispute, the 3[rd] respondent insurer shall deposit the additional compensation awarded in this appeal together with interest, before the Tribunal, within one month from the date of receipt of a certified copy of this judgment. The appeal is disposed of as above. ## Sd/- ## **P.R.RAMACHANDRA MENON, JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** skj True copy P.A to Judge