K.G. Omana Amma and Others vs R. Bhagavathi Ammal and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 6[TH] DAY OF AUGUST 2021 / 15TH SRAVANA, 1943** **MACA NO. 1563 OF 2011** **AGAINST THE AWARD DATED 08.11.2010 IN OP(MV) NO.347/2003 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA, ALAPPUZHA** ## **APPELLANTS/ PETITIONERS:** - **1 K.G.OMANA AMMA, W/O. G. GOPALA PILLAI, SANTHOSH BHAVAN, PERINGALA, KAYAMKULAM,ALAPPUZHA DISTRICT.** - **2 SALINI SREEKUMAR, W/O.SREEKUMAR, SANTHOSH BHAVAN, PERINGALA, KAYAMKULAM, ALAPPUZHA DISTRICT.** - **3 SANTHOSH KUMAR, S/O.G.GOPALA PILLAI, SANTHOSH BHAVAN, PERINGALA, KAYAMKULAM,ALAPPUZHA DISTRICT. BY ADV.SRI.T.R.HARIKUMAR** ## **RESPONDENTS/ RESPONDENTS & 5TH PETITIONER:** - **1 R.BHAGAVATHI AMMAL, BHAVAN, PARAKKAL ROAD, KOTTAR POST, NAGERCOVIL, KANYAKUMARI DISTRICT, TAMILNADU - 629 002.** - **2 E.MURUGAN, 2, PILLIYAR KOIL STREET, SANTHAKULAM, TAMILNADU - 629 205.** - **3 THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO.LTD., KOLLAM DISTRICT - 691 001.** **4 SAJEESH KUMAR,** M.A.C.A.No.1563/2011 -:2:- **S/O.G.GOPALA PILLAI SANTHOSH BHAVAN, PERINGALA, KAYAMKULAM, ALAPPUZHA DISTRICT - 690 502.** **BY ADV SRI.GEORGE CHERIAN THIRUVALLA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1563/2011 -:3:- Dated this the 6[th] day of August, 2021 ## **J U D G M E N T** The appellants were the additional petitioners 2 to 4 in O.P.(MV) No.347/2003 on the file of the Motor Accidents Claims Tribunal,Mavelikara. The respondents in the appeal were the respondent Nos.1 to 3 and additional fifth petitioner before the Tribunal. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The first petitioner(deceased)-'Sri.G. Gopala Pillai @Sankaran Kutty' had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 15.12.2002. It was his case that, on 15.12.2002, while he was standing at Thambaram(Chennai) near Periyar Nagar on G.S.T. M.A.C.A.No.1563/2011 -:4:- road, a lorry bearing registration No.TNK-8910, driven by the second respondent in a reckless manner, ran over his left leg. He sustained grievous injuries, including amputation of his left leg below the knee. The lorry was owned by the first respondent and insured with the third respondent. The deceased was taken to the Government General Hospital and, thereafter, to the Madras Medical College, Chennai and was treated as an inpatient. He was discharged on 22.12.2002. Thereafter, he was brought to his native place and admitted in the Century Hospital, Mulakuzha, on 24.12.2002 and discharged on 08.01.2003. He was continuing treatment. The deceased sustained severe pain and mental agony due to the accident. The deceased was an autoriskshaw driver by profession and earning a monthly income of Rs.5,000/-. The deceased claimed a total compensation of Rs.5,96,000/- from respondents. 3. During the pendency of the claim petition, M.A.C.A.No.1563/2011 -:5:- the first petitioner lost his life. The additional petitioners 2 to 5 - his wife and children of the deceased - were impleaded as additional petitioners 2 to 5 as per the order of the Tribunal in I.A.No.722/2004. 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 contending that the accident occurred on account of the negligence of the deceased. However, it was conceded that the lorry had a valid insurance coverage. The third respondent also disputed the age, income and injury sustained by the deceased and prayed that the claim petition be dismissed. 6. Additional second petitioner and a witness were examined as PWs1 and 2 and Exts.A1 to A7 were marked in evidence. Respondents did not let it any evidence. 7. The Tribunal, after evaluating the pleadings M.A.C.A.No.1563/2011 -:6:- and materials on record by the impugned award, allowed the claim petition in part, by permitting the additional petitioners 2 to 5 to realise an amount of Rs.1,25,000/- from the third respondent with interest at the rate of 7.5% per annum from the date of petition till the date of realisation. The compensation amount was directed to be apportioned in equal shares among the additional petitioners 2 to 5. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the additional petitioners 2 to 4 have filed the appeal. 9. Heard; Adv. Sri. T.R. Harikumar, the learned counsel appearing for the appellants/additional petitioners 2 to 4 and Adv. Sri. John Joseph Vettikad, 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 M.A.C.A.No.1563/2011 -:7:- and just. 11. Ext.A1 First Information Report (FIR) and Ext.A2 First Information Statement (FIS) prove that the accident occurred solely on account of the negligence of the second respondent. Undisputedly, the first respondent was the owner and the third respondent was the insurer of the lorry. Therefore, the third respondent is liable to indemnify the first respondent of his liability to pay compensation. ## **Notional income:** 12. The deceased had stated in the claim petition that he was an autorickshaw driver and earning a monthly income of Rs.5,000/-. Nevertheless, the Tribunal fixed the notional income of the deceased at Rs.3,000/- per month. 13. In _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [(2011) 13 SCC 236], the Hon'ble Supreme Court has M.A.C.A.No.1563/2011 -:8:- 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 taking note of the fact that the accident had occurred in the year 2002, I fix the notional income of the deceased at Rs.3,500/- per month. ## **Loss of earnings:** 15. The Tribunal, after evaluating the materials on record, held that the deceased was indisposed for a period of three months, which I do hereby confirm. Taking into account the enhancement of the notional income of the deceased, I re-fix his 'loss of earnings' at Rs.10,500/- instead of Rs.9,000/- awarded by the Tribunal. ## **Disability of the deceased:** 16. It is on record as per Ext.A4-discharge summary and Ext.5-discharge certificate that the right leg of the deceased had to be amputated below the stump, as a result of the accident that occurred on M.A.C.A.No.1563/2011 -:9:- 15.12.2002. It is also certified that the deceased had a crush injury on the left foot and leg, crush injury of the left foot, skin over the dorsum of the foot and heel pad avulsed and suffered dislocation and multiple injuries all over his body. 16. the accident occurred on Although 15.12.2002, going by the pleadings and materials on record, it is seen that the deceased was undergoing treatment all throughout till he breathed his last. It is proved through PWs1 and 2, that the left leg of the deceased had to be amputated. 17. True, the disability of the deceased was not assessed. Nevertheless, it is to be born in mind that the deceased unexpectedly lost his life during the pendency of the proceedings. 18. In the peculiar facts and circumstances of the case, even though the disability of the deceased was not assessed by a duly constituted Medical Board, I am of the considered opinion that the disability of the M.A.C.A.No.1563/2011 -:10:- deceased has to be fixed as per Serial No. 20 in Part II of Schedule I of the Employee's Compensation Act, 1923 and Serial No.26 of Second Schedule to the Employees State Insurance Act, 1948, wherein the percentage of disability/loss of earning capacity for persons whose leg is amputated below the knee is fixed at 50%. Taking into account the undisputed fact of amputation and the statutory recognised principles of assessment of disability in the above two beneficial and analogous pieces of legislations relating to accidents, I hold that the very same principle has to be adopted in the instant case. Accordingly, I fix the disability of the deceased at 50%. ## **Multiplier:** 19. As the deceased was aged 51 years on the date of accident, relevant multiplier is '11', as laid down in _**Sarala Verma and others v. Delhi Transport Corporation and others**_ [(2009) 6 SCC 121] . M.A.C.A.No.1563/2011 -:11:- ## **Future Prospects:** 20. In light of the law laid down by the Hon'ble Supreme Court in _**Raj Kumar v. Ajay Kumar**_ [2011(1)KLT 620(SC)] and in _**Pappu Deo Yadav v. Naresh Kumar and Ors.**_ [AIR 2020 SC 4424], I also hold that the deceased was also entitled to 'future prospects' at 10% on the compensation for 'loss due to disability'. ## **Loss due to disability:** 21. Taking into account the above mentioned factors namely; the notional income of the deceased at Rs.3,500/-, his disability assessed at 50%, the multiplier at '11' and future prospects at 10%, I hold that the deceased was entitled for compensation for 'loss due to disability' at Rs.2,54,100/-, which the additional petitioners 2 to 5 are entitled to inherit. ## **Loss of amenities:** 22. Although the additional petitioners 2 to 5 had claimed an amount of Rs.25,000/- as compensation for M.A.C.A.No.1563/2011 -:12:- 'loss of amenities', the Tribunal had not awarded any amount under the said head. 23. Taking into consideration the serious injuries that the deceased had suffered, and that his leg had to be amputated at the age of 51 years, I hold that the deceased was also entitled for compensation under the said head at Rs.25,000/-, as claimed in the claim petition i.e., an enhancement by a further amount of Rs.15,000/-. 24. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 25. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I am of the definite opinion that the appellants and the fourth respondent/the additional petitioners 2 to 5 before the Tribunal, are entitled for enhancement of compensation as modified and re-calculated above and M.A.C.A.No.1563/2011 -:13:- ## 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<br>and<br>recalculated<br>by this<br>Court| |---|---|---|---| |1|Loss of earnings|9,000|10,500| |2|Transport<br>expenses|5,000|5,000| |3|Clothing|500|500| |4|Bystander<br>expenses|7,500|7,500| |5|Extra nourishment|3,000|3,000| |6|Medical expense|40,000|40,000| |7|Pain and sufferings|50,000|50,000| |8|Loss of amenities|10,000|25,000| |9|Loss of earning<br>power/disability|Nil|2,54,100| ||**Total**|**1,25,000**|**3,95,600**| In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.2,70,600/-** with interest at the rate of 7.5% per annum from the date of petition till the date of deposit, after excluding the period of 171 days, i.e, the period of delay in preferring this appeal and as ordered by M.A.C.A.No.1563/2011 -:14:- this Court on 15.11.2011 in C.M.Appln.No.1394/2011, and proportionate costs. The third respondent is ordered to deposit the enhanced compensation awarded in this appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellants and the fourth respondent/ additional petitioners 2 to 5 in equal shares and in accordance with law. All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge