Karthu v. The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 25TH DAY OF AUGUST 2017/3RD BHADRA, 1939** **MACA.No. 1119 of 2011 ( ) --------------------------** **AGAINST THE AWARD IN OP(MV) 1878/2005 of M.A.C.T.,PERUMBAVOOR DATED 25-03-2011** ## **APPELLANT(S)/PETITIONER IN OPMV 1878/2005:** **-----------------------------------------** **KARTHU, AGED 60 YEARS, W/O.SIVAN, KANNAN KULATH HOUSE, NEAR CHIRA, KARAKKTTU KUNNU, MEKAD.P.O., NEDUMBASSERY VILLAGE, ALUVA.** **BY ADV. SMT.ANUPAMA JOHNY** **RESPONDENT(S)/RESPONDENT NO.3 IN OPMV 1878/2005:** **------------------------------------------------** **THE NEW INDIA ASSURANCE CO.LTD., 5/1/338, ANNAOORNA BUILDING, OOTTY MAIN AROAD, METTUPALAYAM-641301.** ## **BY ADV. SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** jg-2/9 ## C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ. .................................................................... MACA No.1119 of 2011 .................................................................... Dated this the 25[th] day of August, 2017. ## J U D G M E N T ## Ravikumar, J. This appeal is filed against the judgment and award dated 25.03.2011 in OP(MV) No.1878/2005 passed by the Motor Accidents Claims Tribunal, Perumbavoor. The petitioner therein is the appellant herein. The appellant/petitioner sustained injuries in a motor accident occurred on 13.01.2005 at 5 p.m., while walking through the northern side of Aluva-Angamaly National Highway from east to west. When the appellant reached near Mar Athanasius High School, Nedumbassery, she was knocked down by the car bearing Reg.No.TN-41/Z-6797, driven by the second respondent. On sustaining severe injuries, she was initially taken to Little Flower Hospital, Angamaly and from there she was referred to Medical College Hospital, Thrissur. She had to remain as an inpatient for a period of 378 days. The injuries sustained by her resulted in permanent disability. It is in the said circumstances that she filed the said claim petition under Section 166 of the Motor Vehicles Act seeking a compensation of `5 MACA1119/11 -2- lakhs. 2. As per the impugned award, the Tribunal had granted an amount of `3,29,960/- towards compensation with interest at the rate of 8% per annum from the date of petition till realisation. It is seeking enhancement of the quantum of compensation granted as above that the captioned appeal has been preferred. 3. We have heard the learned counsel for the appellant and also the learned counsel appearing for the respondent insurance company. 4. The sole respondent herein was the third respondent before the Tribunal. It is submitted by both sides that there is no dispute regarding the cause of the accident as also the liability of the respondent insurance company to indemnify the insured owner of the offending vehicle. In short, the only question to be considered in this appeal is as to whether the appellant is entitled to enhanced compensation. 5. Before the Tribunal, one of the Members of the Medical Board, who issued Ext.X1 disability certificate in respect of the appellant/petitioner, was examined as PW1. On the side of the MACA1119/11 -3- appellant/petitioner, Exts.A1 to A10 were got marked. Ext.B1 is the copy of the policy certificate pertaining to the offending vehicle. No oral evidence was adduced by the respondents before the Tribunal. The Tribunal had passed the award as aforesaid after appreciating the evidence on record and rival contentions. 6. Learned counsel for the appellant submitted that the compensation granted by the Tribunal is not one commensurating with the injuries sustained by the appellant. Various grounds have been raised by the appellant to assail the award. It is submitted that disregarding the averments that the appellant/petitioner was a coolie and was earning `5,000/- per month, the Tribunal had fixed the monthly income of the appellant/petitioner as `3,000/-, notionally. It is also submitted that, essentially, the Tribunal had fixed the monthly income notionally as above, treating her as a housewife. The learned counsel for the appellant further submitted that even if the appellant/petitioner is treated only as a housewife, there is absolutely no reason to limit her monthly income to `3,000/-, taking into account her age at the time of the accident as also the year of the accident. From Ext.X1, it would reveal that the MACA1119/11 -4- injuries sustained by the appellant/petitioner had resulted in permanent disability of 54.4%. Despite the incurrence of such high degree of permanent disability, the Tribunal had granted only an amount of `20,000/- towards loss of amenities, it is submitted. The learned counsel would further contend that the nature of the disabilities, as vividly explained in para 12 of the impugned award, would reveal the inadequacy of the amount granted thereunder. That apart, it is also submitted that the Tribunal had granted only meagre amounts towards transportation to hospital, extra nourishment as also bystander's expenses. In such circumstances, modification of the compensation granted under various heads is inevitable, it is submitted. 7. Per contra, the learned counsel appearing for the respondent insurance company submitted that a mere glance of the schedule of compensation granted would reveal that the appellant/petitioner was adequately compensated by the Tribunal. It is further submitted that though the appellant/petitioner had averred in the claim petition that she was a coolie and was earning `5,000/- per month, she had not even chosen to mount the box to MACA1119/11 -5- give evidence. In such circumstances, it cannot be said that the Tribunal had erred in treating her as a housewife and fixing the monthly income as `3,000/-, it is submitted. In short, the contention is that no appellate interference is called for. 8. Having given our anxious consideration to the rival contentions, we are of the considered view that an interference with the quantum of compensation is required in this appeal. Firstly, we will consider the question whether the Tribunal was justified in fixing the monthly income, notionally, and even if it is answered in the affirmative, the next question is whether the fixation of the monthly income as `3,000/- invites interference? True that in the claim petition it is averred that the appellant was a coolie and was earning `5,000/- per month. We are not oblivious of the position that as regards coolie workers, it would not be possible to adduce cogent evidence regarding the occupation and income. But, at the same time, there is absolutely no reason for the appellant/petitioner for not mounting the box to give evidence in support of her contentions. When that be the case, we cannot find fault with the Tribunal in treating the appellant/petitioner as a housewife and MACA1119/11 -6- fixing the monthly income, notionally, for calculation purpose. 9. Now, we will consider the question as to whether the fixation of monthly income, notionally, as `3,000/-, invites any interference. Essentially, in the case of a housewife, it is the service rendered by her to the family that is to be equated in terms of money, for fixing the monthly income for calculation purpose. In the decision in Lata Wadhwa and others v. State of Bihar & Ors. [(2001) 8 SCC 197] , the Hon'ble Apex Court had fixed the monthly income of housewives between the age group of 34 to 59 as `3,000/-. The accident involved in the case of Lata Wadhwa's case (supra) had occurred in the year 1989. This Court in Krishnadas v. Henry Joseph [2011(4) KLT 716] followed the decision of the Apex Court in Lata Wadhwa's case (supra) and fixed the monthly income of a housewife as `3,000/- for the purpose of calculating compensation. The accident involved in Krishnadas's case (supra) had occurred on 24.08.2002. In the contextual situation, we are of the view that it is not inappropriate to refer to a decision of the Apex Court in Arun Kumar Agrawal v. National Insurance Company Ltd. [2010(9) SCC 218]. In Para 23 of the said decision, it is stated MACA1119/11 -7- thus:- “23. In India the Courts have recognised that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer's work for particular hours. She takes care of all the requirements of husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children.” The accident involved in Krishnadas's case (supra) had occurred in the year 2002. In Amar Singh Thukral v. Sandeep Chhatwal [112 (2004) DLT 478], a learned Single Judge of Delhi High Court adopted MACA1119/11 -8- the yardstick of minimum rates of wages for the purpose of fixing the monthly income for awarding compensation in the case of death of a housewife and it was observed therein: “since there is no scientific method of assessing the contribution of a housewife to her household, in cases such as the present, resort should be had to the wages of a skilled worker as per the minimum rates of wages in Delhi. Although, this may sound uncharitable, if not demeaning to a housewife, there is hardly any option available in the absence of statutory guidelines.” In the decision in Arun Kumar Agrawal's case (supra), the Apex Court had observed that though India is a signatory to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which is ratified on 9.7.93, no law had been hitherto made for proper evaluation of the household work done by women as homemakers. The said position continues even now. Taking into account the observations made by the Apex Court in Para 23 of Arun Kumar Agrawal’s case (supra), the endeavor a woman has to make as a homemaker and also the passage of time since those decisions, we are of the view that it is too inadequate and unreasonable to fix the monthly income of a MACA1119/11 -9- housewife for calculation purpose in case of personal injuries as also in case of death as `3,000/-. Taking into account the observations of the Apex Court in Arun Kumar Agrawal’s case (supra), as extracted hereinbefore and the invaluable services rendered by a woman to serve her children, husband and the entire family, now a days, we are of the view that it is only reasonable to fix the monthly income of a woman as housewife, slightly above `3,000/-. In the contextual situation, it is only proper to refer to a decision of the Apex Court in Jitendra Khimshankar Trivedi v. **Kasam Daud Kumbhar** [(2015) 4 SCC 237]. In that case, a 22 year old housewife died in a motor vehicle accident occurred on 21.09.1990. Evidently, the Tribunal took the monthly income of the deceased for calculation purpose as `1,500/-. The High Court in the appeal re-fixed the monthly income as `1,350/-. In para 9 after referring to the said aspect, the Apex Court held that "as observed by the Tribunal, embroidery work, stitching work and local traditional embroidery work was doing well in the district of Kachchh and there was good earning. Considering the nature of the work and the evidence of claimants' witnesses-father-in-law and MACA1119/11 -10- mother-in-law of the deceased, had the deceased Jayvantiben been alive, she would have earned not less than `3,000/- per month. The Apex Court went on to observe further that “even assuming Jayvantiben Jitendra Trivedi was not self-employed doing embroidery and tailoring work, the fact remains that she was a housewife and a home maker. It is hard to monetize the domestic work done by a house-mother. The services of a mother/wife is available 24 hours and her duties are never fixed. Courts have recognised that the contribution made by the wife to the house is invaluable and that it cannot be computed in terms of money. A house-wife/home-maker does not work by the clock and she is in constant attendance of the family throughout and such services rendered by the home maker has to be necessarily kept in view while calculating the loss of dependency.” As noticed hereinbefore, the accident involved in that case occurred on 21.09.1990. Another aspect is also worthy to be noted. In our society, it is common sight that aged ladies are also involving in homemaking and assisting other ladies disregarding their ill health and age. In short, it is to be noted that as regards a woman, the common sight is that unmindful MACA1119/11 -11- of the age and health she is contributing, in one way or the other, by her services to the family. Taking into account all these aspects and also the year of the accident involved in the aforementioned cases, we are of the firm view that the monthly income of a housewife, for calculation purpose, has to be fixed notionally above `3,000/-. Considering all the aforesaid relevant aspects and taking into account the fact that in this case, the accident had occurred in the year 2005, we fix the monthly income of the appellant/petitioner for calculation purpose as `4,500/- notionally. The appellant/petitioner was aged 55 years, at the time of the accident. In the absence of any proof of date of birth, the Tribunal had adopted the multiplier '9' treating her as a person falling within the age group of 56 to 60. In Ext.X1, the extent of disability of the appellant/petitioner was assessed as 54.4%. The entire disability assessed by the Medical Board was accepted and acted upon by the Tribunal. In short, the compensation for disability has to be reassessed only by substituting the notional monthly income re-fixed by us. On such re-assessment, the amount payable under the head 'Disability' will be `2,64,384/-. After deducting the amount already MACA1119/11 -12- granted by the Tribunal under this head, viz., `1,76,256/-, the appellant/ petitioner is entitled to an amount of `88,128/-, additionally under that head. 10. The Tribunal had fixed the period for calculating compensation for loss of earning as 10 months. It is submitted by the learned counsel appearing for the appellant/petitioner that the period thus fixed by the Tribunal is too short, taking into account the nature of the disability incurred by the appellant/petitioner owing to the injuries sustained in the accident. In Ext.X1 disability certificate, for assessing the extent of disability, the following difficulties experienced by the appellant/petitioner were taken note of:- - “Left Hip : Passive – flexion 30, Extension – 5, External rotation deformity 20, further external rotation 10, Abduction – 10, Adduction 15. - Left ankle : Fixed flexion deformity 5 forther flexion 20 - Left foot : Fore foot fixed eqinus 20, Toes fixed eqinus 10, big toe extension atler neutral in lesson toes. - Spine normal - Right knee : Osteoarthritis - Left knee : Partial ankylosis with implant in situ. - Right Ankle foot : Fixed eqinus deformity foot 5 MACA1119/11 -13- - Shortening : 7 cm shortening (L) lower hip. Sensation & vascularity normal.” Paragraph 13 of the impugned judgment would reveal that the Tribunal had taken note of the fact that going by the records, even at the time of her last discharge, there was malunion of right femur fracture. The last period of hospitalisation was from 10.04.2007 to 03.08.2007. As noticed hereinbefore, the accident had occurred on 13.01.2005. In such circumstances, taking note of the aforesaid aspects as also the nature of the injuries and the extent of disability, we are of the view that it is only proper to fix the period for calculating compensation for loss of earnings as 24 months. In view of the re-fixation of notional monthly income and the period of loss of earnings, the total amount payable under the head 'loss of earning' will be `1,08,000/-. The Tribunal had already granted an amount of `30,000/- under the said head. After deducting the said amount, the appellant/petitioner is entitled to get an amount of `78,000/- , additionally, under the head 'loss of earnings'. 11. Towards compensation for loss of amenities, the Tribunal had granted only an amount of `20,000/-. We have MACA1119/11 -14- already adverted to the difficulties of the appellant/petitioner noted in Ext.X1 by the Medical Board, while assessing the extent of permanent disability. Ext.A5 wound certificate would reveal the injuries sustained by the appellant/petitioner. We have also taken into account the fact that even at the time of her last discharge, right femur fracture was not united. Going by the disability certificate, there is 7 CMs. shortening to lower hip (L). Taking into account all these aspects, we are of the view that towards 'loss of amenities', the amount granted by the Tribunal is too meagre. We are of the view that an amount of `40,000/- more can be granted thereunder. Accordingly, it is granted. 12. Towards compensation for damage to clothes, an amount of `250/- was granted by the Tribunal. We are inclined to grant an amount of `750/- more thereunder. It is granted. Towards compensation for extra nourishment and attendance charges, the Tribunal has granted an amount of `5,000/- and `37,800/-, respectively. As noticed hereinbefore, the appellant/petitioner had been an inpatient for a period of 378 days. Taking into account the year of the accident and the cost of living at MACA1119/11 -15- that point of time, it is only proper to grant amounts towards extra nourishment at the rate of `100/- per day and towards bystander's expenses at the rate of `150/-, per day. In that view of the matter, the appellant/petitioner is entitled to get additional compensation of `32,800/- and `18,900/- under the heads 'extra nourishment' and 'bystander expenses (attendance charges)', respectively. 13. Towards compensation for transportation charges, the Tribunal had granted an amount of `3,500/-. Taking into account the number of reviews the appellant/petitioner had, we are of the view that an amount of `3,500/- more has to be granted under that head. It is granted. 14. In the light of the enhancement made as above, the appellant/petitioner is entitled to get an additional compensation of `2,62,078/- (88,128 + 78,000 + 40,000 + 750 + 32,800 + 18,900 + 3,500). This additional compensation will carry interest at the rate of 8% per annum from the date of petition till the date of realisation. In the absence of any dispute regarding the liability to indemnify the insured owner of the offending vehicle, the respondent insurance company is directed to deposit the said MACA1119/11 -16- amount along with interest thereon, within a period of two months from the date of receipt of a copy of this judgment. Needless to say that before disbursing the amount, balance court fee payable in view of the enhancement of compensation shall be realised, in accordance with law. This appeal is disposed of as above. No order as to costs. Sd/(C.T.RAVIKUMAR, JUDGE) Sd/(ANIL K.NARENDRAN, JUDGE) jg-/8