Jayakumari v. Umesh Narayana Naik, Hasif Iqbal K.A., The Branch Manager, Oriental Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 21[ST] DAY OF JANUARY 2022 / 1ST MAGHA, 1943** **MACA NO. 1414 OF 2012** **AGAINST THE AWARD IN OP(MV) NO.58/2008 OF THE COURT OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, KASARAGOD** ## **APPELLANT/PETITIONER:** **JAYAKUMARI AGED 27 YEARS, D/O.NARAYANA POOJARY, PANIYA HOUSE, MAUVVAR POST, VIA-BADIADKA, KASARAGOD TALUK, KASARAGOD DISTRICT.** **BY ADVS. SRI.M.SASINDRAN SRI.A.ARUNKUMAR** ## **RESPONDENTS/RESPONDENTS:** **1 UMESH S/O.NARAYANA NAIK, KANIYAMOOLA HOUSE, P.O.NEKRAJE, KASARAGOD – 671 121, (DRIVER OF BUS BEARING REG.NO. KL-14/D 1150). 2 HASIF IQBAL K.A. S/O.N.I.ABBAS, 'IBRAHIM MANZIL', SANTHOSH NAGAR, POST ALAMPADY, KASARAGOD – 671 121, (OWNER OF BUS BEARING REG.NO. KL-14/D 1150). 3 THE BRANCH MANAGER THE ORIENTAL INSURANCE COMPANY LIMITED, KASARAGOD – 671 121, (INSURER OF BUS BEARING REG.NO. KL-14/D 1150). BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **21.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 1414 OF 2012** **2** ## **C.S.DIAS, J. ====================== MACA No.1414 of 2012 ====================== Dated this the 21[st] day of January, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.58/2008 on the file of the Motor Accidents Claims Tribunal, Kasargode. 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 28.06.2007. It was her case that, on the above said date, while she was traveling in a bus bearing registration No.KL 14 B 1150 from Cherkala to Kasargode, due to the negligent driving of the 1[st] respondent, the bus capsized. The appellant had sustained multiple injuries including a compound comminuted fracture of the shaft right tibia and fibula and also of her pelvis region. She was initially treated at the Carewell Hospital, Kasargode and then at the Highland Hospital, Mangalore, for a period of 81 **MACA NO. 1414 OF 2012** **3** days in two spells. The appellant has suffered severe mental shock, pain and agony. She was a tailor by profession and earning a daily income of Rs.4,00/- to Rs. 5,00/-. The appellant is suffering from a permanent disability. She is unable to carry on her avocation due to the disability suffered to lower limbs. The bus was owned by the 2[nd] respondent and insured with the 3[rd] respondent. Hence, the appellant claimed a compensation of Rs.10,00,000/- from the respondents. 3. The respondents 1 and 2 were set ex-parte. 4. The 3[rd] respondent had filed a written statement admitting that the bus had a valid insurance coverage. However, the 3[rd] respondent contended that the accident occurred due to the negligence of the appellant. The 3[rd] respondent also disputed the age, income and occupation of the appellant. 5. The appellant had produced and marked Exts.A1 to A6 series in evidence. The disability certificate issued by the District Medical Board, Kanhangad was marked as Ext.X1. 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 **MACA NO. 1414 OF 2012** **4** Rs.3,09,700/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.M.Sasindran, the learned counsel appearing for the appellant/petitioner and Sri.P. Jacob Mathew, the learned counsel appearing for the 3[rd] respondent/insurer. 9. The point that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and Liability** 10. Ext.A2 charge sheet laid by the Kasargode Police in Crime No.451/2007 proves that the accident occurred due to the negligence of the 1[st] respondent. Indisputably, the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the bus. The respondents have not let in any evidence to discredit Ext.A2 charge sheet. The 3[rd] respondent has 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. **MACA NO. 1414 OF 2012** **5** ## **Income** 11. The appellant had claimed that she was a tailor by profession and was earning a monthly income of Rs.5,000/-. Nevertheless, for want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.3,000/-. 12. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd.** : (2011) 13 SCC 236, the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- . 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2007, I fix the notional monthly income of the appellant at Rs.5,000/-, as claimed in the claim petition. ## **Loss of earnings** 14. It is proved by Ext.A4 series discharge summaries that the appellant had suffered a fracture of the shaft of both bones of her right leg and was treated as an inpatient for a period of 81 days. As she was a tailor by profession, necessarily she could not carry on with her avocation. Hence, I hold that she was indisposed for a period of five months. **MACA NO. 1414 OF 2012** **6** 15. In view of the re-fixation of the notional monthly income of the appellant at Rs.5,000/-, I award her an amount of Rs.25,000/- towards 'loss of earnings'. ## **Disability** 16. The appellant was referred by the Tribunal to the Medical Board attached to the District Hospital, Kanhangad. A five member Medical Board, after taking note of the fact that the appellant had suffered a Type III B compound comminuted fracture shaft of the right tibia and fibula and has limitation of motion of her right ankle, loss of sensation, dorsam foot which has effected the stability of her right lower limb, has fixed her permanent disability at 28%. The Tribunal, apparently for no reason, scaled down the disability to 15%. 17. In **Raj Kumar V. Ajay Kumar** [2011 (1) KLT 620], the Honourable Supreme Court has categorically held that what needs to be looked into in an injury claim is the functional disability of the injured/claimant. It is also observed that if the disability certificate is marked with the consent of the parties, the same can be accepted in evidence. 18. In the present case, it was the Tribunal which referred **MACA NO. 1414 OF 2012** **7** the appellant to a duly constituted Medical Board. A five member expert body after examining the appellant arrived at a conclusion that she has 28% permanent physical impairment, due to the injuries sustained to her right lower limb. As the appellant was a tailor by profession, I hold that the scaling down of disability by the Tribunal is erroneous and wrong going by the principles in **Raj Kumar (Supra)** . Accordingly, I fix the 'functional disability' of the appellant at '28%' as certified in Ext.X1. ## **Multiplier** 19. The appellant was aged 23 years at the time of the accident. In the light of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier to be adopted is '18'. ## **Loss due to disability** 20. Taking into account the above mentioned factors, namely the monthly income of the appellant at Rs.5,000/-, her functional disability at 28% and the multiplier at 18, I award the appellant an amount of Rs.3,02,400/- towards **MACA NO. 1414 OF 2012** **8** 'loss due to disability', instead of Rs.97,200/- awarded by the Tribunal. ## **Bystander expenses and extra nourishment** 21. The Tribunal has awarded the appellant an amount of Rs.12,150/- towards bystander expenses and Rs.8,000/- towards extra nourishment. I find the said amounts to be too meagre. 22. On a consideration of the fact that the accident occurred in the year 2007 and that the appellant was treated as an inpatient for a period of 81 days, I award her an amount of Rs.4,00/- per day for 81 days towards 'bystander expenses' which works out to Rs.32,400/- and Rs.2,00/- per day for a period of 81 days towards 'extra nourishment' which comes to Rs. 16,200/- . ## **Pain and sufferings and loss of amenities** 23. The Tribunal has awarded the appellant an amount of Rs.15,000/- towards 'pain and sufferings' and has not awarded any amount under the head 'loss of amenities'. 24. Taking into account the fact that the appellant was treated as an inpatient for period of 81 days, that she was indisposed for a period of five months and that she has suffered **MACA NO. 1414 OF 2012** **9** a functional disability of 28%, I award her a further amount of Rs.15,000/- under the head 'pain and sufferings' and an amount of Rs.25,000/- under the head 'loss of amenities'. 25. With respect to the compensation awarded under the heads 'transportation expenses', 'medical expenses' and 'loss of marriage prospects', I find that the Tribunal has awarded reasonable and just compensation. 26. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. **==> picture [461 x 257] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>No. awarded by awarded by<br>the Tribunal this Court<br>(in Rs.) (in Rs.)<br>1. Loss of earnings Nil 25,000<br> 2. Transportation expenses 11,600 11,600<br>3. Bystander expenses 12,150 32,400<br>4 Extra nourishment 8,000 16,200<br>5. Medical expenses 1,45,750 1,45,750<br>**----- End of picture text -----**<br> **MACA NO. 1414 OF 2012** **10** **==> picture [461 x 168] intentionally omitted <==** **----- Start of picture text -----**<br> 6. Pain and sufferings 15,000 30,000<br>7. Loss of amenities Nil 25,000<br>8 Loss of marriage 20,000 20,000<br>prospects<br>8. Loss due to disability 97,200 3,02,400<br>Total Rs.3,09,700/ - 6,08,350/-<br>**----- End of picture text -----**<br> In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.2,98,650/- rounded off to Rs.3,00,000/- (Rupees Three Lakhs only) with interest on the enhanced compensation at the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.20,000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and cost to the Tribunal within a period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the same to the appellant in accordance with law. Sd/- ## **C.S.DIAS, JUDGE** sn