Latha v. K.R. Subrahmanian, Basheer and The New India Assurance Company Limited

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMRS.JUSTICESOPHYTHOMAS WEDNESDAY,THE21[ST]DAYOFJUNE2023/31STJYAISHTA,1945 MACANO.897OF2012 ``` ## **`AGAINST THE ORDER/JUDGMENT IN OPMV 313/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM APPELLANT/PETITIONER:`** ``` LATHA AGED40YEARS W/O.ARAVINDAKSHAN,KALAMBATHHOUSE, ATHIPOTTAPOST,ALATHURTALUK, PALAKKADDISTRICT,PIN-678544. ``` ``` BYADVS. SRI.O.P.NANDAKUMAR SRI.V.A.AJAIKUMAR ``` ## **`RESPONDENTS/RESPONDENTS 4 TO 6:`** ``` 1K.R.SUBRAHMANIAN S/O.RAJAN,AGEDNOTKNOWN, SREEKRISHNACANALROAD,ERANHIPALAM, KOZHIKODE,PIN-673006. ``` ``` 2BASHEER AGEDABOUT51YEARS NALAKATHUHOUSE,MALAMPUZHA, PALAKKAD,PIN-678651. 3THENEWINDIAASSURANCECOMPANY LIMITED,DIVISIONALOFFICE,PALAKKAD, PIN-678001. BYADV. SRI.RENILANTOKANDAMKULATHY ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEEN FINALLYHEARDON14.06.2023,THECOURTON21.06.2023 DELIVEREDTHEFOLLOWING: ``` MACA No.897 of 2012 2 ## **SOPHY THOMAS, J.** **--------------------------------------MACA No.897 of 2012** **---------------------------------------** Dated this the 21[st] day of June, 2023 ## **J U D G M E N T** This appeal has been preferred by the injured/claimant in OP(MV) No.313 of 2010 on the file of Motor Accidents Claims Tribunal, Ottappalam, challenging the award dated 28.10.2011, on the ground of inadequacy of compensation. 2. On 27.08.2009, while the appellant was travelling in a bus, KL-11B 0216 lorry dashed against the bus and she sustained injuries on her face which caused avulsion of five teeth from the lower jaw. She underwent treatment for the same. She approached the Tribunal claiming compensation of Rs.1,35,000/-. But, the Tribunal awarded only Rs.32,500/-, which is under challenge in this appeal. 3. The 1[st] respondent was the owner of the offending lorry, 2[nd] respondent was its driver and 3[rd] respondent was its insurer. 4. The owner and driver of the offending vehicle remained MACA No.897 of 2012 3 ex parte throughout. The 3[rd] respondent/insurer opposed the claim contending that, the 2[nd] respondent had no valid driving licence and so, he was charge sheeted in petty case No.2350 of 2009 by Perinthalmanna Police. The policy of the offending vehicle, as on the date of accident, was admitted. 5. The evidence before the Tribunal consisted of oral testimony of PW1, Exts.A1 to A9 and Exts.B1 to B3. 6. Now let us see whether there is any illegality or impropriety in the impugned award warranting interference by this Court. 7. Heard learned counsel for the appellant and learned counsel for the 3[rd] respondent. 8. The fact that the accident occurred on 27.08.2009, due to the rash and negligent driving of KL-11B 0216 lorry by the 2[nd] respondent, is proved through Ext.A1 copy of FIR and Ext.A5 copy of charge sheet. The Insurance Company is admitting the policy, and Ext.B1 is the policy certificate of the offending vehicle. 9. PW1 deposed before court that, she lost her five teeth in MACA No.897 of 2012 4 the incident, apart from the injuries suffered on her face and lips. Ext.A9 certificate issued from Palakkad District Co-operative Hospital Dental Clinic supports her case. 10. According to the appellant, she was a 40 year old milk vendor earning monthly income of Rs.3,000/-. But, the learned Tribunal fixed her notional income @ Rs.2,500/- only and loss of income was assessed just for one month. Since she lost five teeth in the incident, and there were injuries on her face, lips etc., according to her, the period assessed by the Tribunal for computing her loss of earning is too meager. 11. There is nothing to show that, the appellant was a milk vendor earning monthly income of Rs.3,000/-. Even if we consider her as a housewife aged only 40, relying on the ratio in the decision **Ramchandrappa** vs. **Manager, Royal Sundaram Alliance Insurance Company Limited** (AIR 2011 SC 2951), she was eligible to get her notional income fixed @ Rs.7,000/- as the accident was in the year 2009. Since her claim was only Rs.3,000/-, this Court is inclined to fix her monthly income @ MACA No.897 of 2012 5 Rs.3,000/-. Considering the nature of injuries suffered by her, loss of her earning can be taken for a period of two months. So, she is eligible to get Rs.6,000/towards loss of earning (3000x2). She was already paid Rs.2,500/- by the Tribunal. So, she will get the balance amount of Rs.3,500/- under the head ‘loss of earning’. 12. Towards future treatment, learned Tribunal awarded only Rs.10,000/-, ignoring Ext.A9 certificate issued from Palakkad District Co-operative Hospital Dental Clinic. It is mentioned in that certificate that, she had lost five teeth and in order to fix a partial denture unit for the missing teeth and abutment teeth, the total cost was Rs.45,000/-. That certificate was not seen opposed by the insurer. Considering the cost of restoration of the missing teeth by fixing partial denture, the cost shown in Ext.A9 is reasonable and so, the Tribunal ought to have allowed that amount accepting Ext.A9. Since the learned Tribunal awarded only Rs.10,000/-, the appellant is eligible to get the balance amount of Rs.35,000/- under the head ‘future treatment’. MACA No.897 of 2012 6 13. Towards pain and suffering, the appellant was given only Rs.15,000/-. Considering the fact that she lost her five teeth in the accident, this Court is inclined to award Rs.3,000/more towards pain and suffering. 14. Towards loss of amenities, the appellant was given only Rs.2,000/-. Since she lost her five teeth from the lower jaw and she had to fix partial denture, it may affect her cosmetic appearance also and considering that fact, this Court is inclined to award Rs.5,000/- more under the head ‘loss of amenities’. 15. The compensation awarded seems to be reasonable under all other heads and so it need not be interfered with. |**Head of claim**<br>**(1)**|**Amount**<br>**awarded by**<br>**the Tribunal**<br>**(2)**|**Amount**<br>**awarded in**<br>**appeal**<br>**(3)**|**Difference to**<br>**be drawn as**<br>**enhanced**<br>**compensation**<br>**(4)**| |---|---|---|---| |Loss of earning|Rs.2,500/-|Rs.6,000/-|Rs.3,500/-| |Future treatment|Rs.10,000/-|Rs.45,000/-|Rs.35,000/-| |Pain and suffering|Rs.15,000/-|Rs.18,000/-|Rs.3,000/-| |Loss of amenities|Rs.2,000/-|Rs.7,000/-|Rs.5,000/-| |**Total**|**Rs.29,500/-**|**Rs.76,000/-**|**Rs.46,500/-**| MACA No.897 of 2012 7 16. In the result, the appellant is entitled to get enhanced compensation of Rs.46,500/- (3500+35000+3000+5000). 17. The accident occurred due to the rash and negligent driving of the lorry by the 2[nd] respondent. So the 1[st] respondent is vicariously liable and the 3[rd] respondent-Insurance Company is liable to indemnify the insured. But, according to the insurer, there was violation of the policy conditions, as the 2[nd] respondent had no valid driving licence to drive the offending vehicle as on the date of accident. So, they prayed for recovery clause to be incorporated in the award. In the result, the 3[rd] respondent/insurer is directed to deposit the enhanced compensation of Rs.46,500/- in the Bank Account of the appellant with 8% interest per annum from the date of petition till the date of deposit (excluding 65 days of delay in filing the appeal), within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/ MACA No.897 of 2012 8 2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund. The 3[rd] respondent/insurer is entitled to recover the amount so deposited from respondents 1 and 2 and their assets. The appeal is allowed accordingly. No order as to costs. Sd/- **SOPHY THOMAS JUDGE** smp