Lalitha Gopinath @ Lalithamma v. Lalumon Pallithottam, Amar Kamash Hydrose, Oriental Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **TUESDAY, THE 17[TH] DAY OF OCTOBER 2023 / 25TH ASWINA, 1945** ## **MACA NO. 1533 OF 2010** **AGAINST THE ORDER/JUDGMENT OPMV 534/2004 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL, ALAPPUZHA** ## **APPELLANT/PETITIONER:** LALITHA GOPINATH @ LALITHAMMA W/O.GOPINATH, LEJU NIVAS, THONDANKULANGARA,, ALAPPUZHA DISTRICT. BY ADVS. SRI.M.V.THAMBAN SRI.B.BIPIN SRI.R.REJI SMT.REVATHY P.NAIR SMT.THARA THAMBAN ## **RESPONDENT/RESPONDENTS:** 1 LALUMON PALLITHOTTAM P.O., KOLLAM 691 006. 2 AMAR KAMASH HYDROSE BLDG. PALLITHOTTAM P.O., KOLLAM- 691 006. 3 THE ORIENTAL INSURANCE CO.LTD. REPRESENTED BY ITS DIVISIONAL MANAGER,, DIVISIONAL OFFICE, THIRUVALLA, PIN 686 033. BY ADVS. K.S.SANTHI, SC, ORIENTAL INSURANCE COMPANY LTD. SRI.GEORGE CHERIAN THIRUVALLA ## **OTHER PRESENT:** R3 - SRI.GEORGE A CHERIAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 M.A.C.A No.1533 of 2010 ## **JUDGMENT** The appellant is the petitioner in OP(MV)No.534/2004 on the files of the Motor Accidents Claims Tribunal, Alappuzha. The said claim petition was submitted by the appellant seeking compensation for the injuries sustained to her in a motor accident that occurred on 06.11.2003. 2. The accident occurred when the appellant, along with some other persons were travelling in a car, and when they reached north of Kalpavakavadi at Karuvatta North, another car bearing registration No.KL-4/A-3458, driven by the second respondent in a rash and negligent manner, came from the opposite direction, hit the car in which the appellant was travelling. Consequent to the accident, the appellant sustained serious injuries. The car which hit the vehicle in which the appellant was travelling, was being driven by the second respondent herein, owned by the first respondent and was insured with the 3[rd] respondent Insurance Company. The vehicle in which the appellant was travelling belonged to her. The claim petition was submitted by her in such circumstances. 3 M.A.C.A No.1533 of 2010 3. The 3[rd] respondent insurance company filed a written statement admitting the existence of a policy for the vehicle that hit the vehicle of the appellant. However, they disputed the negligence and the quantum of compensation. 4. The aforesaid claim petition was tried along with O.P. (M.V) Nos.533/2004, 535/2004 and 536/2004, as the said claim petitions were filed in connection with the injuries sustained by the persons in the very same accident. 5. The evidence in this case consists of oral testimonies of PWs 1 and 2 and Exts.A1 to A21 from the side of the claimants. From the side of the respondents, Ext.B1 was marked. After the trial, the Tribunal concluded that the accident occurred due to the negligence of the drivers of both vehicles and therefore, the 3[rd] respondent was held liable to pay 50% of the compensation awarded. The quantum of compensation in this case was fixed as Rs.2,43,546/- and the 3[rd] respondent was directed to deposit 50% of the said amount, i.e. Rs.1,21,773/- with interest at the rate of 6% per annum from the date of petition till realisation. This appeal is submitted by the appellant challenging the finding of negligence and seeking enhancement of compensation. 4 M.A.C.A No.1533 of 2010 6. Heard, Sri. R. Reji, the learned counsel appearing for the appellant and Sri.George A Cherian, the learned counsel appearing for the 3[rd] respondent/insurance company. 7. The first contention raised by the learned counsel for the appellant relates to the finding on the question of negligence. It is discernible from the materials that the police, after investigation, chargesheeted both drivers for the accident. The Tribunal, after appreciating the materials placed on record, came to the conclusion that the accident occurred due to the negligence of both drivers. Moreover, it is seen from the award that the finding on the negligence is already upheld by this Court in M.A.C.A No.1608/2010, although a direction to confining the deposit to 50% of the award by the 3[rd] respondent/insurance company was vacated. However, it is to be noticed from the said judgment rendered by this Court that the reason for setting aside the direction issued by the Tribunal to the 3[rd] respondent to deposit only 50% was on the ground that, since both the drivers were held liable for compensation, both of them are joint tortfeasors. The appellant in M.A.C.A No.1608/2010, being a passenger in one of the vehicles, was entitled to recover the 5 ## M.A.C.A No.1533 of 2010 compensation wholly or partly from any of the joint tortfeasors, and this Court relied on the proposition of law laid down by the Honourable Supreme Court in **Khenyei v. New India Assurance Co. Ltd and Others** [2015 (2) KLJ 593]. However, in this case, even though the aforesaid principles can be made applicable but, there is a distinction. Here, admittedly, the vehicle in which the appellant was travelling belonged to her, and as far as the liability of the driver of the said vehicle is concerned, that will extend up to the appellant as well, being the owner of the said vehicle as per the principles of vicarious liability. Therefore, the appellant, who is also liable to pay the compensation, cannot seek compensation from herself. Thus, the direction issued by the Tribunal, to the 3[rd] respondent/insurance company to deposit 50% of the award cannot be interfered with in this case due to the above reasons. Therefore, the said finding is hereby confirmed. 8. The next aspect relates to the quantum of compensation. The appellant claimed to be a housewife, and she sustained physical disablement, which was certified by the doctor as 45%. Ext.A15 is the disability certificate, but the same has not been taken into consideration by the Tribunal. I have carefully 6 ## M.A.C.A No.1533 of 2010 gone through the Ext.A15 document. Of course, in Ext.A15, 45% disability is certified, but it appears that the same is not the whole body disability. Apparently, the assessment of disability is for the particular limps, and therefore, the entire percentage of disability as certified therein cannot be accepted. Considering the nature of the injury sustained and the possible impact of the same, I deem it appropriate to take 23% as the percentage of physical disability in this case. 9. When it comes to the question of monthly income, it is an admitted position that the appellant was a housewife. The assessment of the services rendered by a housewife cannot be measured in terms of money, yet, for the purpose of assessing the compensation for physical disability, a monthly income has to be determined. As per the principle laid down in **Ramachandrappa** ## **v. Manager, Royal Sundaram Alliance Insurance Company** **Ltd.** [(2011) 13 SCC 236], even in the absence of any evidence, the monthly income of a person can be fixed as Rs.4,500/- in respect of an accident occurred in the year 2004. In this case, the accident occurred in the year 2003, and therefore, the monthly income can be safely taken as Rs.4,000/-. The appellant was 7 ## M.A.C.A No.1533 of 2010 aged 61 years at the relevant time, and therefore, the multiplier applicable is '7'. While assessing the compensation for physical disability with the above criteria, the amount would come to Rs.77,280/- (4,000 x 12 x 7 x 23/100). 10. The amount awarded under the head of pain and suffering is Rs.15,000/- and in the facts and circumstances of the case, I deem it appropriate to grant a further sum of Rs.5,000/-. Similarly, the amount of Rs .8,000/- granted towards loss of amenities also appears to be on the lower side. Therefore, a further sum of Rs.7,000/- is awarded under the said head. Thus, the total additional compensation is reckoned as Rs.89,280/Since the appellant is entitled to 50% of the said amount, the amount receivable by the appellant would be Rs.44,640/-. In the light of the aforesaid observations and findings, this appeal is allowed, and the award dated 12.11.2009, passed by the Motor Accidents Claims Tribunal in O.P(M.V) No.534/2004 is hereby modified by granting an additional compensation of Rs.44,640/- (Forty four thousand six hundred and forty only) to the appellant. It shall be deposited by the 3[rd] respondent /insurance company along with interest at the rate as ordered by 8 M.A.C.A No.1533 of 2010 the Tribunal within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A JUDGE** rav/rpk