## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE C.S.DIAS**
**WEDNESDAY, THE 1[ST] DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943**
**MACA NO. 1619 OF 2011**
**AGAINST THE AWARD DATED 25.03.2011 IN OP(MV)NO.1352/2009 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE.**
## **APPELLANT/PETITIONER:**
**JEENA, W/O.LATE GOPALAKRISHNAN, JEEBAS,VALLIKUNNU AMSOM AND DESOM, P.O.KADALUNDI NAGARAM,VALLIKUNNU, ATHANIKKAL,MALAPPURAM.**
**BY ADV SRI.JACOB ABRAHAM**
## **RESPONDENTS/RESPONDENTS:**
- **1 SATHEESH BABU K, SON OF BALAN.K., 24/09,KOLANGOTTY THARAVEEDU, PERUMUKHOM.P.O, KOZHIKODE.**
- **2 MURALEEDHARA PANICKER, SON OF BHAKARA PANICKER, THIRUMALAYIL KALLARIKKAL, BEYPORE AMSOM AND DESOM, P.O.BEYPORE, KOZHIKODE-673015.**
- **3 RELIANCE GENERAL INSURANCE CO.LTD, OPPOSITE TAGORE CENTENARY HALL, KOZHIKODE-673332.**
## **BY ADV SRI.K.B.RAMANAND**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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Dated this the 1[st] day of September, 2021
## **J U D G M E N T**
The appellant was the petitioner in O.P.(MV) No.1352/2009 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. 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 10.08.2008.
3. The facts in brief, relevant for the determination of the appeal, are: On 10.08.2008, while the appellant was travelling along with her
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husband(Gopalakrishnan) from Vallikkunnu to Kozhikode on a motorcycle bearing registration No.KL-11-R-5996, when they reached the old Feroke bridge, a mini bus bearing registration No.KL-11/L-3015(bus), driven by the first respondent in a rash and negligent manner, hit the motorcycle. The appellant and her husband were thrown on the road and sustained serious injuries. Both of them were taken to the Koya's Hospital, Feroke and from there to the Medial College Hospital, Kozhikode. The appellant's husband succumbed to the injuries on the same day. The appellant was unconscious for a period of three days and treated as an inpatient for five days. The appellant sustained severe head injuries and disfigurement. The appellant was a business lady by profession and earning a monthly income of Rs.5,000/-. The bus was owned by the second respondent and insured with the third respondent. The appellant claimed a total amount of Rs.5,00,000/- as
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## compensation from the respondents.
4. The respondent Nos.1 and 2 did not contest the proceedings and were set _ex parte_ .
5. The third respondent filed a written statement, refuting the allegations in the claim petition. It was contended that the accident occurred also due to the negligence of the deceased-husband of the appellant. The third respondent further contended that the compensation claimed by the appellant was on the higher side; but admitted that the bus had a valid insurance coverage.
6. The appellant examined herself as PW1 and marked Exts.A1 to A17 in evidence. The report of the Medial Board was marked as Ext.C1.
7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to realise an amount of Rs.2,64,984/- with interest at the rate of 7% per annum and a cost of Rs.1,000/- from the third
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respondent.
8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal.
9. Heard; Sri. Jacob Abraham, the learned counsel appearing for the appellant/petitioner and Sri. K.B. Ramanand, the learned counsel appearing for the third respondent/insurer.
10. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just?
## **Liability and negligence:**
11. Ext.A4 final report filed by the City Traffic Police, Kozhikode in Crime No.2620/2008 clearly proves that the accident occurred due to negligence of the first respondent. Undisputedly, the second respondent was the owner and the third respondent was the insurer of the bus. Therefore, it is the third
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respondent who is to indemnify the liability of the second respondent arising out of the accident.
## **Notional income:**
12. The appellant had claimed that she was a business woman by profession and earning a monthly income of Rs.5,000/-. The Tribunal, for want of materials, fixed the notional income of the appellant at Rs.4,000/- per month.
13. In _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_
[(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month.
14. Following the ratio in the afore-cited decision and keeping in mind the fact that the accident occurred in the year 2008 and the appellant was a business woman by profession, I am of the opinion that the appellant's notional income can safely be fixed at
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Rs.5,000/- as claimed in the claim petition.
## **Loss of earnings:**
15. It is on record that the appellant had sustained serious injuries, including head injury and fracture of the Squamous Temporal Bone ® side, as evidenced by Ext.A2 wound certificate, Ext.A6 proceedings of the Medial College Hospital, Kozhikode and Ext.C1 disability certificate issued by the Medial Board. The Tribunal has found that the appellant was incapacitated for a period of six months.
16. In view of the re-fixation of the notional income of the appellant at Rs.5,000/- per month, I enhance the compensation for 'loss of earnings' by a further amount of Rs.6,000/-.
## **Loss due to disability:**
17. As per Ext.C1-permanent disability certificate of the Medial Board, it is found that the appellant has permanent disability of 25% due to the right third nerve palsy with diplopia in the primary position,
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downgaze and upgaze and partial optic atrophy right eye and memory disturbances following the accident.
18. The Tribunal accepted Ext.C1 disability certificate and fixed the appellant's functional disability at 25%. In view of the disability assessed by Ext.C1, I do not find any reason to differ from the finding expressed by the duly constituted Medical Board. Hence, I confirm the findings of the Tribunal that the appellant had functional disability at 25%.
19. However, due to the re-fixation of the notional income of the appellant at Rs.5,000/- per month, I re-fix the compensation for 'loss due to disability' at Rs.2,40,000/- instead of Rs.2,04,000/fixed by the Tribunal.
## **Loss of amenities**
20. The appellant had claimed an amount of Rs.25,000/- as compensation for 'loss of amenities'. Nevertheless, the Tribunal did not award any amount under the said head.
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21. It is on record, as per Ext.A2 wound certificate, Ext.A6 proceedings of the Medical College Hospital, Kozhikode and Ext.C1 disability certificate that the appellant had sustained serious injuries and was incapacitated for a period of six months. She has also sustained a permanent disability of 25%. In the said circumstances, I of the considered opinion that the appellant is entitled for compensation for 'loss of amenities' at Rs.25,000/-
22. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation.
23. On a overall re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedent, I am of the definite 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.
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|Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by this<br>Court|
|---|---|---|---|
|1|Loss of earnings|24000|30,000|
|2|Transport<br>to<br>Hospital|1,000|1,000|
|3|Damage<br>to<br>Clothing|1,000|1,000|
|4|Bystander<br>expenses|1,300|1,300|
|5|Extra nourishment|1,500|1,500|
|6|Medical expenses|7,184|7,184|
|7|Pain and sufferings|25,000|25,000|
|8|Loss of amenities|Nil|25,000|
|9|Loss<br>due<br>to<br>disability|2,04,000|2,40,000|
||**Total**|**2,64,984**|**3,31,984**|
In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.67,000/-** with interest at the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.3,000/-. The third respondent is directed to deposit the enhanced compensation with interest and costs
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before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance with law
All pending interlocutory applications will stand closed.
Sd/-
## **C.S.DIAS,JUDGE**
DST
//True copy/ P.A.To Judge
