Karthiyani v. Binoy Kurian and The Oriental Insurance Company Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 6[TH] DAY OF JUNE 2022 / 16TH JYAISHTA, 1944 ``` ## `MACA NO. 1922 OF 2011` ``` AGAINST THE AWARD DATED 27.05.2011 IN OP(MV)NO.604/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA ``` ## `APPELLANT/PETITIONER:` ``` 1KARTHIYANI W/O.THAKAPPAN, KUZHIMATTATHIL HOUSE, KUZHITHOLY KARA & POST, KARUNAPURAM VILLAGE. ``` ``` BY ADVS.SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1BINOY KURIAN, THAZATHU HOUSE, NETTITHOZHU P.O., RAJAKKAD, VANDANMEDU-685 551. ``` - `2 THE ORIENTAL INSURANCE COMPANY LTD, REPRESENTED BY ITS DIVISIONAL MANAGER, MUVATTUPUZHA-686 661.` ## `BY ADV SRI.M.JACOB MURICKAN` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1922/2011 -:2:- Dated this the 6[th] day of June, 2022 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV)No.604/2006 on the file of the Motor Accidents Claims Tribunal, Thodupuzha. 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 02.01.2006. It was her case that, on the above day, while she was travelling in an autorickshaw bearing registration No.KL-3K/6142 (autorickshaw) from Vandenmedu to Kuzhithodu, the driver of the autorickshaw abruptly applied brakes and the appellant fell on the road. The rear tyre of the autorickshaw ran over the left foot of the appellant, causing severe injuries to her and her left foot big toe and 2[nd] toe had to be amputated. The appellant was M.A.C.A.No.1922/2011 -:3:- treated as an inpatient at St. John’s Hospital, Kattappana, from 02.01.2006 to 14.01.2006. The autorickshaw was owned by the first respondent and insured with the second respondent. The appellant was a coolie worker by profession and was earning a monthly income of Rs.3,000/-. She was aged 48 years at the time of the accident. The appellant claimed a compensation of Rs.2,32,500/- from the respondents, but the claim was limited to Rs.1,50,000/-. 3. The first respondent did not contest the proceedings. 4. The second respondent had filed a written statement admitting that the autorickshaw had a valid insurance policy. Nevertheless, the second respondent contended that the accident occurred due to the negligence of the appellant. The second respondent also disputed the age, income and occupation of the appellant. M.A.C.A.No.1922/2011 -:4:- 5. The appellant produced and marked Exts. A1 to A8 in evidence. The second respondent produced the insurance policy, which was marked as Ext.B1. 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 second respondent an amount of Rs.94,300/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri. Mathew John K, the learned counsel appearing for the appellant/petitioner and Sri. M. Jacob Murickan, the learned counsel appearing for the second respondent -insurer. 9. The sole question that arises for consideration in the appeal is whether the quantum of M.A.C.A.No.1922/2011 -:5:- compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability:** 10. Ext.A3 final report filed by the Vandanmedu Police in Crime No.4/2006, substantiates that the accident occurred due to negligence of the first respondent. Admittedly, the first respondent was the owner and the second respondent was the insurer of the autorickshaw. The respondents have not let in any evidence to discredit Ext.A3 final report. Similarly, the second respondent has not proved that the first respondent had violated the insurance policy conditions. Therefore, the second respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income:** 11. The appellant had claimed that she was aged 48 years at the time of the accident and was a coolie M.A.C.A.No.1922/2011 -:6:- worker by profession. She had claimed that she was earning a monthly income of Rs.3,000/-. The Tribunal accepted the assertion of the appellant, and has fixed the monthly income of the appellant at Rs.3,000/-. ## **Disability:** 12. The appellant had produced Ext.A6 disability certificate issued by a three member Medical Board attached to the Taluk Head Quarters Hospital, Thodupuzha. The Medical Board, after assessing the injuries sustained by the appellant, fixed her ‘permanent disability’ at 16%. However, the Tribunal scaled down the ‘permanent disability’ to 15%. 13. In **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)], the Honourable Supreme Court has categorically held that, if the Tribunal is dissatisfied 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. M.A.C.A.No.1922/2011 -:7:- Similarly, what needs to be looked into in a case of injury, is the ‘functional disability’ of the injured/claimant. 14. In the instant case, the appellant had produced Ext.A6 disability certificate issued by a Medical Board comprising of three members. The Medical Board considering the amputation of the left foot big toe and second toe of the appellant and taking note that the appellant was a coolie worker by profession, fixed her ‘permanent disability’ at 16%. The Tribunal without any cogent reason has scaled down the ‘permanent disability’ of the appellant to 15%. The course adopted by the Tribunal, according to me, is erroneous and wrong. 15. On a re-appreciation of Ext.A6 disability certificate and the ratio in **Rajkumar** (supra), I am of the firm view that the appellant’s ‘functional disability’ has to be fixed at 16%, as she was a coolie worker by M.A.C.A.No.1922/2011 -:8:- profession and her two toes were amputated, as a result of the injuries sustained in the accident. ## **Multiplier:** 16. It is on record that the appellant was aged 48 years at the time of accident. In the light of the law laid down in **Sarla Verma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802 (SC)],the relevant multiplier to be adopted is ‘13’. ## **Loss due to disability:** 17. Taking into account the above mentioned factors, namely; the notional monthly income of the appellant at Rs.3,000/-, her ‘functional disability’ at 16% and the ‘multiplier’ at ‘13’, I re-fix compensation for ‘loss due to disability’ at Rs.74,880/-, instead of Rs.59,400/- awarded by the Tribunal. ## **Loss of earnings:** 18. It is proved that the appellant was treated as an inpatient for a period of 12 days. She had to M.A.C.A.No.1922/2011 -:9:- undergo amputation of her big toe and her second toe. Undisputedly, the appellant was a coolie worker by profession. Although she claimed that she was indisposed for a period of five months, the Tribunal has fixed the period at one month, which again is wrong. 19. Taking into account the serious injuries sustained by the appellant and the fact that she was a coolie worker by avocation, I hold that she was indisposed for a period of five months. 20. As the appellant was earning Rs.3,000/- per month, I award her a compensation of Rs.15,000/towards ‘loss of earnings’. ## **Bystander expenses:** 21. The appellant has proved that she was treated as an inpatient for a period of 12 days i.e., from 02.01.2006 to 14.01.2006. Taking into account the fact that the accident occurred in the year 2006, I M.A.C.A.No.1922/2011 -:10:- award her an amount of Rs.250/- per day for a period of 12 days, which works out to Rs.3,000/-, instead of Rs.1,200/- awarded by the Tribunal. ## **Loss of amenities** 22. The appellant had claimed an amount of Rs.15,000/- towards 'loss of amenities'. The Tribunal has awarded only an amount of Rs.5,000/- under the said head, which is too meager. 23. On a consideration of the fact that the appellant was treated as an inpatient for a period of 12 days, that she has sustained a functional disability of 16%, that her two toes were amputated and that she was indisposed for a period of five months, I award her an amount of Rs.15,000/-, as claimed in the claim petition towards ‘loss of amenities’, instead of Rs.5,000/- awarded by the Tribunal. 24. With respect to the other heads of compensation, I find that the Tribunal has awarded M.A.C.A.No.1922/2011 -:11:- reasonable and just compensation. 25. On an overall re-appreciation of the pleadings, 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. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|3,000|15,000| |2|Transportation<br>expenses|300|300| |3|Treatment|8,700|8,700| |4|Extra nourishment|1,200|1,200| |5|Damage to<br>clothing|500|500| |6|Bystander<br>expenses|1,200|3,000| |7|Loss of amenities|5,000|15,000| ||Pain and sufferings|15,000|15,000| ||Permanent<br>disability|59,400|74,880| ||**TOTAL**|**94,300**|**1,33,580**| M.A.C.A.No.1922/2011 -:12:- In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **Rs.39,280/-** with interest on the enhanced compensation at the rate of 7.5% per annum from the date of petition till the date of realisation and a cost of Rs.10,000/-. The second respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty 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 enhanced compensation amount to the appellant in accordance with law, after deducting her liability, if any, towards court fee. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/06.06.2022 //True copy/ P.A.To Judge