Lathika (Appellant) v. Ravi S/o Ramakrishnan and The Manager, The National Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 8TH DAY OF NOVEMBER 2013/17TH KARTHIKA, 1935** **MACA.No. 2951 of 2008 (F)** **-------------------------------------[AGAINST THE AWARD DATED 17-05-2008 IN O.P.(M.V).NO.498/2002 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ATTINGAL]** **..............** **APPELLANT/APPLICANT: ------------------------------------** **LATHIKA, W/O. GOPAKUMAR, RAVEENDRA BHAVAN, CHITTAZHA, VATTAPARA P.O, THIRUVANANTHAPURAM.** **BY ADVS.SRI.R.T.PRADEEP, SRI.J.ROBINSON, SRI.V.VIJULAL.** **RESPONDENTS:** **-----------------------** **1. RAVI, S/O. RAMAKRISHNAN, MANNOORKONATHU VEEDU, KUTTIYANI, PANTHALACODE P.O. VATTAPPARA.** ## **2. THE MANAGER,** **THE NATIONAL INSURANCE COMPANY LIMITED, BRANCH NO.1, P.B.NO. 60, SOUNDARYA BUILDINGS, M.G. ROAD, THIRUVANANTHAPURAM, PIN- 695 001.** **R2 BY ADV. SRI.JOE KALLIATH.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ----------------------------------------------------------------M.A.C.A. No.2951of 2008 -----------------------------------------------------------------Dated this the 8[th] day of November, 2013 ## J U D G M E N T ## K. Ramakrishnan, J Claimant in O.P.(M.V.).No.498/2002 on the file of the Motor Accidents Claims Tribunal, Attingal, is the appellant herein. The appellant filed the application for compensation for the injuries and consequential disabilities sustained by her in a motor vehicle accident, caused on account of the rash and negligent driving of the vehicle, owned and driven by the first respondent and insured with the 2[nd] respondent. After considering the evidence on record, the tribunal found that the accident occurred due to the rash and negligent driving of the vehicle by the first respondent and awarded a total compensation of 1,42,568/- on various heads as follows:₹ M.A.C.A. No.2951of 2005 2 |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**awarded₹**| |---|---|---| |1|Loss of earning|20, 710| |2|Transport to hospital|3, 000| |3|Extra nourishment|2, 500| |4|Damage to clothing|250| |5|Medical expenses|13, 107. 60| |6|Bystanders expenses|3, 000| |7|Pain and suffering|25, 000| |8|Amenities and discomforts|50, 000| |9|Disfigurement|25, 000| ||Total|1, 42, 568| Dissatisfied with the quantum of compensation awarded by the tribunal, the appellant has filed this appeal claiming enhanced compensation. 2. Heard the counsel for the appellant and counsel for the insurance company. 3. Since the insurance is admitted and notice was served on the first respondent in the delay condonation application with intimation of the appeal, further notice to first respondent in the appeal is dispensed with. 4. Counsel for the appellant submitted that the appellant was working as a High School Assistant and getting 13,220/- as monthly income at the time of the₹ accident and she was aged only 44 years. She had lost M.A.C.A. No.2951of 2005 3 her right eye in the accident that has caused 45% permanent disability. The tribunal has not awarded any amount under the head loss of earning capacity. The tribunal ought to have fixed the notional income, after retirement and awarded some amount under that head, taking into consideration of the percentage of disability suffered by her. Further the amount awarded under the head pain and suffering and loss of amenities in life are also on the lower side. No amount was awarded under the head future treatment. According to the counsel for the appellant, the appellant is entitled to get enhancement on all heads. 5. On the other hand, counsel for the insurance company submitted that, the appellant did not loose her job on account of the disability and she had taken only 47 days leave and she is continuing in service. This has not affected her teaching capacity as well. So, the tribunal was perfectly justified in not awarding any M.A.C.A. No.2951of 2005 4 amount under the head loss of earning capacity. The total compensation awarded, considering the nature of injuries and other aspects, is just and proper and no interference is called for at the hands of this court. 6. We have considered the rival contentions of both parties in detail. 7. It is an admitted fact that, the appellant was working as a teacher in an aided school at the time of accident and she lost her right eye in the accident, which has caused some disfigurement to her face. The disability certificate issued by the Medical Board assessed her disability as 45%. This fact has been taken into consideration by the tribunal, shows that she is having 45% permanent disability, on account of the loss of right eye. The tribunal has taken this into consideration for the purpose of awarding compensation under the head loss of amenities in life and also for dis-figuration and awarded an amount of 50,000 and 25, 000/- respectively under₹ ₹ M.A.C.A. No.2951of 2005 5 those heads. Though, the amounts should not have been granted under different heads and this could have been taken into consideration for the purpose of loss of amenities in life as such. 8. She was aged 44 years and the tribunal has taken 13 as multiplier, but as per the decision of the Supreme Court in **Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC)** , the multiplier applicable to the age group of the appellant namely 44 is 14 and not 13 as taken by the tribunal. It is true that she has not lost her employment, but after retirement this disability may cause some impact on her teaching capacity and she may not be able to do the teaching work as efficiently as before. So, some amount will have to be awarded under the head loss of earning capacity, taking note of the fact that her earning capacity after retirement will be affected. She is 44 years at the time of the accident and for 11 years, she can continue in her M.A.C.A. No.2951of 2005 6 employment. The remaining three years can be taken for the purpose of assessing compensation under the head loss of earning capacity after retirement. Taking a notional income of 3,000/- and the disability as 45% and₹ three as multiplier, the appellant will be entitled to get ₹ 48,600/- under the head loss of earning capacity and we award that amount under that head. Though persuasive arguments were made by the counsel for the appellant to get enhancement under other heads, we are not inclined to enhance any amount, as the amounts awarded by the tribunal under all other heads are just and proper. There is no evidence adduced on the side of the appellant to prove that she requires future treatment as well. So, she is not entitled to get any amount under the head expenses for future medical treatment. So in all, the appellant will be entitled to get an additional compensation of ₹ 48,600/-, over and above what has been awarded by the tribunal. The 2[nd] respondent insurance company is liable M.A.C.A. No.2951of 2005 7 to pay this amount with 9% interest per annum from the date of the claim petition, till date of payment. Two months time is granted to the insurance company to deposit this amount as well. With the above modification of the impugned award of the tribunal, the appeal is disposed of. Sd/- S. Siri Jagan, Judge Sd/K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss