High Court of KeralaSingle Judge2021-06-23Appeal allowed; enhanced compensation; deposit ...

Latha Sathyarajan v. Daly.V.K. and The New India Assurance Co. Ltd.

Case / Petition Number:MACA No. 208 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2021-06-23
Court Decision / Holding: Appeal allowed. The compensation is enhanced by Rs. 68,400 over the Tribunal’s award, with interest at 7.5% per annum from the date of petition to the date of deposit by the insurer. The 2nd respondent is directed to deposit the enhanced amount before the Tribunal within two months from receipt of a certified copy of the judgment, with liberty to the appellant to withdraw on deposit.
Final Disposition: Appeal allowed; enhanced compensation; deposit to be made within two months; liberty to withdraw on deposit.

Parties to the Case

Appellants / Petitioners

Latha Sathyarajan w/o. Sathyarajan, Deepavalietteil, Power House Ward, Alappuzha

Respondents

Daly.V.K., W/o C.V.Po ulose, Parayil House, Ward No.4, Chembannur, Maikkad Po, Nedumbassery, Aluva Taluk-683585
The New India Assurance Co. Ltd, Alappuzha - 688001

Legal Representation & Advocates

Counsels for Petitioners

• Sri. P.V. Baby
• Sri. A.N. Santhosh
• SMT. A. Sreekala

Counsels for Respondents

• SMT. A. Sreekala

Case Synopsis & Summary

This is a Motor Accident Claims Appeal (MACA No. 208 of 2013) from the Kerala High Court. The appellant, Latha Sathyarajan, sustained serious injuries in a scooter- and mini lorry collision on 16 February 2006 on the Cherthala–Alappuzha National Highway. The Motor Accidents Claims Tribunal, Alappuzha, had allowed the claim petition against the insurer with a modest compensation of Rs. 22,849, plus interest and costs. The insurer contested liability and the extent of damages, while the appellant contended she suffered a permanent whole‑body disability and was entitled to higher compensation. Notably, the tribunal rejected Ext. A1, a disability certificate certifying 10% whole‑body disability, and did not accord due weight to PW1’s testimony. The High Court, examining Ext. A1 and the medical evidence, held that disability could be established by the examining doctor or medical board, relying on Rajkumar v. Ajayakumar and Union of India v. Talwinder Singh. The court re‑assessed income (notional) to Rs. 4,000 per month, recalculated loss of earnings to Rs. 12,000 (for three months), and awarded Rs. 62,400 for disability, among other heads, resulting in a total enhanced compensation of Rs. 91,249. The appeal was allowed, with a further enhancement of Rs. 68,400, and directions for deposit within two months and liberty to withdraw on deposit."

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that Ext.A1 disability certificate is valid and should be accepted as proof of permanent whole‑body disability; the Tribunal’s non‑consideration of Ext.A1 and the PW1 evidence is erroneous. Citing Rajkumar v. Ajayakumar and Union of India v. Talwinder Singh, the appellant asserts courts should generally rely on expert opinions and medical certificates; the notional income should be Rs.4,000 per month given her manual labour background, with three months’ loss of earnings and Rs.62,400 for disability, among other heads, justifying an enhanced overall award.

Contentions of Respondents

The insurer contends that the tribunal’s finding on disability should be treated with caution and that Ext.A1 was not properly considered. The respondent insurer also argues liability rests with the insured driver, and disputes the appellant’s age, occupation, and income as claimed. It is argued that the accident occurred largely due to the appellant’s negligence, not the driver’s, and the tribunal’s calculated compensation should stand. The insurer maintains that relying on expert opinion alone may not warrant substantial modification of the award.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Rajkumar v. Ajayakumar	2011(1) KLT 620 (SC)	Positive	Disability certificate can be proved by examination of the doctor who issued it or by a medical board, a proposition relied upon by the High Court.
Union of India and another v. Talwinder Singh	2012 (5) SCC 480	Positive	Court should not ordinarily interfere with expert opinions; defer to experts familiar with medical issues.
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	2011(13) SCC 236	Positive	Notional income notional basis for computation of compensation; used to fix notional income in this case as a reference point.
Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd.	(2014) 2 SCC 735	Positive	Notional income guidelines for specific occupations used to determine appellant’s notional income.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 23[RD] DAY OF JUNE 2021 / 2ND ASHADHA, 1943 MACA NO. 208 OF 2013** **AGAINST THE JUDGMENT IN OP(MV)NO. 918/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA** ## **APPELLANT/PETITIONER:** **LATHA SATHYARAJAN W/O. SATHYARAJAN, DEEPAVALIVEETTIL, POWER HOUSE WARD, ALAPPUZHA. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS:** **1 DALY.V.K.,W/O.C.V.POULOSE, PARAYIL HOUSE, WARD NO.4, CHEMBANNUR, MAIKKAD PO NEDUMBASSERY, ALUVA TALUK-683 585 2 THE NEW INDIA ASSURANCE CO. LTD ALAPPUZHA - 688 001.** ## **BY ADV SMT.A.SREEKALA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _MACA No. 208 of 2013_ _2_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 208 of 2013 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of June, 2021 ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.918 of 2012 on the file of the Motor Accidents Claims Tribunal, Alappuzha. The respondents in the appeal were the respondents in the claim petition. 2. The facts in the claim petition, relevant for the determination of the appeal are: on 16.02.2006 while the appellant was travelling on a Scooter bearing registration No.KL-7/X 6445 on the Cherthala-Alappuzha National Highway, a Mini Lorry bearing registration No. KL-7/AZ (offending vehicle) owned and driven by the 1[st] respondent and insured with the 2[nd] respondent hit the Scooter causing serious injuries to the appellant. Her daughter was also a pillion rider on the said scooter. The appellant was treated at the Medical College Hospital, Alappuzha as an in-patient from 16.02.2006 to _MACA No. 208 of 2013_ _3_ 18.02.2006. The appellant sustained a fracture of the 3[rd] metatarsal right and unicortcal fracture upper tibia left. The accident was caused solely due to the negligence on the part of the 1[st] respondent and the 2[nd] respondent was the insurer of the offending vehicle. The appellant claimed to be a manual labourer by profession and earning an amount of Rs.4,000/- per month. The appellant claimed compensation from the respondents, which she quantified at Rs.1,05,000/- 3. The 1[st] respondent did not contest the proceedings and was set ex-parte. The 2[nd] respondent filed a written statement and additional written statement denying negligence on the part of the part of the 1[st] respondent and contended that the accident occurred solely due to the negligence on the part of the appellant. The 2[nd] respondent also till disputed the age, occupation and income of the appellant. 4. The appellant examined the Doctor who issued Ext.A1 Disability Certificate as PW1 and also produced _MACA No. 208 of 2013_ _4_ and marked Exts.A1 to A13 series in evidence. Ext.C1Case Records were also marked in evidence. 5. The appellant's daughter had also filed OP(MV)No.919 of 2006 before the Tribunal seeking compensation. 6. The Tribunal consolidated and jointly tried both the claim petitions and by impugned common award allowed the claim petition filed by the appellant permitting her to realise an amount of Rs.22,849/- with interest at 7.5% per annum from the date of petition till the date of realisation and cost Rs.228/- from the 2[nd] respondent. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/petitioner is in appeal. 8. Heard the learned counsel for the appellant and the learned counsel appearing for the 2[nd] respondent. 9. The questions that emerge for consideration in the appeal are (i) whether the non-acceptance of Ext.A1 _MACA No. 208 of 2013_ _5_ disability certificate by the Tribunal is justifiable and (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just? 10. Ext.A3 FIR and Ext.A4 charge-sheet clearly substantiate that the accident was caused solely due to the rashness and negligence on the part of the 1[st] respondent. It is undisputed that the offending vehicle was insured with the 2[nd] respondent. Therefore, it is the 2[nd] respondent who is liable to indemnify the 1[st] respondent of his liability to pay compensation to the appellant. 11. Ext.A12-Discharge Summary substantiates that the appellant had suffered a fracture of the 3[rd] metatarsal right and unicortcal fracture upper tibia left. She had examined PW1, the Doctor who issued Ext.A1. The Doctor has testified that the appellant has a permanent whole-body disability of 10% due to the injuries sustained by her. Unfortunately, the Tribunal without averting to the evidence of PW1 or Ext.A1 certificate, went on to hold _MACA No. 208 of 2013_ _6_ that the appellant does not have any disability, which according to me is patently erroneous and wrong. 12. In **Rajkumar v. Ajayakumar** [2011(1) KLT 620 (SC)], the Honourable Supreme Court has held that a disability certificate can be proved by examination of the Doctor who issued the same or it is open to the injured to get himself examined by a duly constituted medical board. 13. In the case on hand, the appellant had produced Ext.A1 disability certificate, which was proved through PW1, who certified that the appellant has a permanent whole-body disability at 10%. However, the Tribunal without any reason failed to advert to the said document and the oral testimony of PW1. 14. In **Union of India and another** v. **Talwinder Singh** [2012 (5) SCC 480], the Honourable Supreme Court has held that the court should not ordinarily interfere with the opinions of experts. It would be safe for the courts to follow the opinion to the experts who _MACA No. 208 of 2013_ _7_ are familiar with the problems than to give its general opinion. 15. In the case on hand, PW1, the expert has certified that the appellant has a permanent whole-body disability of 10% as evidenced by Ext.A1. Therefore, I accept Ext.A1 and hold that the appellant has a permanent whole-body disability as assessed by PW1 at 10%. 16. The appellant had claimed that she was a manual labourer earning a monthly income of Rs.4,000/-. However, the Tribunal fixed the notional income of the appellant at Rs.3,000/-. True, the appellant had not produced any document to substantiate her income. 17. The Hon'ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ **[** _(2011) 13 SCC 236_ ] and **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** has fixed the notional income of a Coolie worker in the year _MACA No. 208 of 2013_ _8_ 2004, at Rs.4,500/- per month and that of a vegetable vendor in the year 2008, at Rs.6,500/- per month,respectively. ## **Notional income** 18. Following the parameters laid down by the Hon'ble Supreme Court in the afore-cited decisions and considering the fact that the appellant was aged 46 years and was a manual labourer, I am of the considered opinion that the appellant's notional income can safely be fixed at Rs.4,000/- per month as claimed in the claim petition. Hence, I re-fix the appellant's notional income at Rs.4,000/- per month. 19. Ext.A5-Wound Certificate and Ext.A12 discharge summary clearly proves that the appellant had suffered a fracture of the 3[rd] metatarsal right and unicortcal fracture upper tibia left, which is serious in nature. Eventhough, she had claimed that she was unable to go for work for four months, the Tribunal fixed her loss of earnings only for two months. In view of the evidence _9_ _MACA No. 208 of 2013_ that has been let in by PW1 read with Ext.A1 disability certificate, Ext.A5 wound certificate and Ext.A12 discharge summary, I am of the firm opinion that the appellant's loss of earnings can be fixed at three months. ## **Loss of earnings** 20. In view of the re-fixation of the notional income of the appellant and that she was unable to work for three months, I hold that the appellant is entitled for an amount of Rs.12,000/- instead of Rs.6,000/-awarded by the Tribunal. ## **Loss due to disability** 17. As the appellant has suffered a permanent whole-body disability of 10% as per Ext.A1 and that her notional income is Rs.4,000/- per month, I hold that she is entitled for 'loss due to disability' at Rs.62,400/- ## **Other heads of claim** 22. With respect to the compensation awarded under the various other heads of claim namely transportation charges, extra nourishment, damages to _MACA No. 208 of 2013_ _10_ clothing, byestander expenses, medical expenses, compensation for pain and sufferings and compensation for loss of amenities, I find that the Tribunal has awarded reasonable and just compensation. 23. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the aforecited decisions, I am of the firm opinion that the appellant is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl. No|Heads of claim|Amount awarded by the Tribunal (in rupees)|Amounts modified and recalculated by this Court| |---|---|---|---| |1|Loss of earning|6,000/-|12,000/-| |2|Transportation charges|700/--|700/-| |3|Extra nourishment|500/-|500/-| |4|Damages to clothing|350/-|350/-| |5|Byestander expenses|300/-|300/-| |6|Medical expenses|299/-|299/-| |7|Pain and sufferings|10,000/-|10,000/-| |8|Loss of amenities|4,700/-|4,700/-| |9|Loss due to disability|nil|62400| |||22,849/-|91,249/-| _MACA No. 208 of 2013_ _11_ In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.68,400/(Rupees sixty eight thousand four hundered only) with interest at the rate of 7.5% per annum from the date of petition till the date of deposit by the 2[nd] respondent and proportionate cost. The 2[nd] respondent shall 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 the judgment. The appellant/petitioner would be at liberty to move the Tribunal for withdrawal of the deposited amount. **Sd/- C.S.DIAS,JUDGE** **dlk 23.06.2021**