LeelambiKa Panapurathu Kuttyil v. The New India Assurance Co. Ltd.

_M.A.C.A.No.1626/2013_ _1_ # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943_ ## _MACA.No.1626 OF 2013_ _AGAINST THE AWARD IN OPMV 619/2004 DATED 29-04-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MAVELIKKARA_ ## _APPELLANT/S:_ _LEELAMBIKA PANAPURATHU KUTTYIL, VALLIKUNNAM MURI, VALLIKUNNAM._ _BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN SRI.K.J.SHARATH KUMAR_ ## _RESPONDENT/S:_ _1 NAVAS, PUNCHAVELUMPIL PADEETHATHIL, THEKKU KOCHU MURI, KRISHNAPURAM-690 533._ _2 REMANAN, KUTTYIL VEEDU, PADA NORTH, KARUNAGAPPALLY-690 518._ _3 THE NEW INDIA ASSURANCE CO.LTD., REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE, KAYAMKULAM-690 502._ _R3 BY ADV. SMT.A.SREEKALA_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ _M.A.C.A.No.1626/2013_ _2_ ## **JUDGMENT** ## **Dated this the 24th day of March 2021** This is an appeal filed by the petitioner in O.P. (MV).No.619/2004 on the file of the Motor Accidents Claims Tribunal, Mavelikkara. The said claim petition was filed by her seeking compensation for the injuries sustained in a motor accident occurred on 05.06.2003. It was contended that, she was aged 57 years at the time of accident and was a home maker. The monthly income claimed by her was Rs.3,000/-. It was also contended by her that due to the injuries, she sustained permanent disablement. As compensation, an amount of Rs.2,10,000/- was sought for in the petition. 2. The original petition was contested by the 3[rd] respondent Insurance Company alone. They filed a written statement admitting the coverage of policy, but disputed the liability on various grounds. Quantum of compensation was also seriously disputed by them. 3. The evidence in this case consists of Exts.A1 to A19 _M.A.C.A.No.1626/2013_ _3_ and the oral evidence of PWs1 and 2 from the side of the appellant/ petitioner. No evidence was adduced from the side of the respondents. 4. After the trial, the Tribunal passed an award allowing a total compensation of Rs.99,100/- and the 3[rd] respondent Insurance Company was directed to deposit the said amount along with interest at the rate of 7.5% per annum. 5. This appeal is filed by the appellant, being aggrieved by the quantum of compensation as above. Heard the learned counsel for the appellant and the learned counsel for the 3[rd] respondent Insurance Company. 6. The main contention urged by the learned counsel for the appellant is that, the monthly income taken by the Tribunal is Rs.3,000/-, which is on lower side, going by the principles laid down by the Hon'ble Supreme Court in various judgments. It is true that the fixation of Rs.3,000/- as monthly income was made by the Tribunal, by accepting the claim in the petition only. However, the crucial aspect to be noticed in this regard is that merely mentioning of Rs.3,000/- as monthly income in the claim petition cannot prevent this Court to ensure just compensation to _M.A.C.A.No.1626/2013_ _4_ the appellant in this case. This is because of the fact that the appellant herein is a home maker. It is a fact is that, no person can ascertain the monthly income of a home maker with arithmetical precision. In the judgment rendered by this Court in **Gopinathan A. and others v. Afzal Basha and others [2020 (3) KHC 666],** it is held in paragraph No.16 as follows: “As held by the Apex Court in **Arun Kumar Agarwal** the gratuitous services rendered by wife/mother to the husband and children cannot be equated with the services of an employee and no evidence or data can possibly be produced for estimating the value of such services. In the instant case, the accident occurred on 10/10/2004 and at the time of accident, the deceased was aged 53 years. The appellants claimed Rs.4,000/as the notional monthly income of the deceased, who was a housewife. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2004, and taking note of the fixation of notional monthly income by the Apex Court in **Ramachandrappa** and **Syed Sadiq** , the monthly income of a manual labourer or a labourer in an unorganized sector doing his own business as vegetable vendor, fruit vendor, etc., who met with a motor accident in the year 2004, could be reasonably taken as Rs.4,500/-. Therefore, the notional monthly income that could be taken for a housewife/homemaker, who met with a motor accident _M.A.C.A.No.1626/2013_ _5_ in the year 2004, for the purpose of awarding just and reasonable compensation under the head loss of dependency, shall not be less than the notional monthly income of Rs.4,500/-, that could be taken for a manual labourer or a labourer in an unorganized sector doing his own business as vegetable vendor, fruit vendor etc., who met with a motor accident in the year, taking note of the fixation of notional monthly income by the Apex Court in **Ramachandrappa** and **Syed Sadiq** , even in a case in which the notional monthly income claimed in the claim petition is on the lower side. The appellants have no case that the deceased was earning any income by doing tailoring, embroidery work, etc. Therefore, the notional monthly income of the deceased is re-fixed as Rs.4,500/-, for the purpose of assessing compensation under various heads.” 7. Thus it is evident that a different yardstick can be applied in the case of a house wife. I am in full agreement with the said view. 8. Therefore, this Court is of the opinion that merely because of the reason that the appellant had specified Rs.3,000/as monthly income in the claim petition, that should not preclude her from claiming compensation in tune with the principles laid down by the Hon'ble Supreme Court in this regard. It is to be _M.A.C.A.No.1626/2013_ _6_ noted that, going by the principles laid down by the Hon'ble Supreme Court **Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735]** and **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011)** **13 SCC 236],** the monthly income of a coliee has to be fixed for the year 2004 as Rs.4,500/-. In this case, the accident was occurred in the year 2003. Considering the fact that the accident occurred prior to the year mentioned in the judgment of the Hon'ble Supreme Court mentioned above, this Court is of the view that Rs.4,000/- would be ideal in this case. Accordingly, the monthly income of the appellant is fixed as Rs.4,000/-. 9. Next aspect highlighted by the learned counsel for the appellant is that the multiplier adopted by the Tribunal was 8. However, going by the principles laid down by the Hon'ble Supreme Court in **Sarla Verma & Ors. v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the multiplier has to be 9 for the age group of 55 to 60. Since, the appellant was aged 58 on the date of accident, the multiplier can be fixed as 9. 10. It is further urged by the learned counsel for the appellant that, the permanent physical disability taken by the _M.A.C.A.No.1626/2013_ _7_ Tribunal was 10%, even though as per Ext.A19 certificate issued by the Doctor, it was certified as 15%. It was contended by him that the Tribunal discarded Ext.A19 on the reason that the doctor who issued the said certificate was not examined. In this regard, he contents that, merely because of the reason that the doctor was not examined, the percentage of disability certified in the disability certificate cannot be discarded. He places reliance upon the judgment rendered by this Court in **Karunakaran v. Abdul Rasheed [2015 (4) KLT 465]** . It was also observed by this Court in the said judgment that, merely because of the reason that the certificate was issued by the Doctor who has not treated the victim, the said certificate cannot be destructed. However, on examining the factual circumstances under which the observations made by this Court in the said judgment, it is seen that the certificate issued in that case contained specific details of injuries, method of calculation and it was also specifically mentioned that the assessment was done under Mc Bride Scale. However, on going through the contents of Ext.A19 medical certificate produced in this case, such material particulars are lacking. Apart from the above, the doctor who issued the certificate is not the person who treated the victim. _M.A.C.A.No.1626/2013_ _8_ 11. In the above circumstances, the percentage of disability as certified in Ext.A19 cannot be accepted as such. Hence, this Court is of the view that for the purpose of computing the compensation for permanent disablement, 10% disability as taken by the Tribunal can be retained. In the light of the revised criteria as above, the compensation for disability shall be Rs.43,200/- [4000x12x9x10/100]. The Tribunal has already awarded an amount of Rs.28,800/- and after deducting the said amount the petitioner shall be entitled for a further sum of Rs.14,400/- under the head of permanent disability. 12. On account of the revision of monthly income, the appellant will be entitled for a further sum of Rs.4,000/- under the head of loss of earning and the said amount is awarded. 13. It was further contended by the learned counsel that the transportation expenses granted was Rs.1500/- as against the claim of Rs.7,000/-. It was pointed out by him that the appellant had undergone treatment in Oachira and Thiruvananthapuram. Therefore, the transportation expenses granted by the Tribunal is on lower side. Considering the fact that the treatment was availed at Thiruvananthapuram and also _M.A.C.A.No.1626/2013_ _9_ taking into consideration the fact that the accident occurred in the year 2003, this Court is of the opinion that a further sum of Rs.1500/- can be granted under the said head. The amount awarded under the head of pain and suffering is Rs.20,000/- and the learned counsel seeks enhancement of the said amount. Going by the nature of injuries sustained, and the period of hospitalization undergone by the appellant, this Court feels that the said amount can be enhanced to some extent and a further some of Rs.10,000/- is reasonable. Another head on which enhancement sought for by the learned counsel for the appellant was in respect of loss of amenities. Amount awarded by the Tribunal under this head is Rs.10,000/- as against the claim of Rs.25,000/-. While considering the compensation under this head, the fact that she is a home maker is a relevant factor to be taken into consideration. Therefore, taking into account the physical inconvenience that may cause to her in pursuing daily routine and in doing household activities, this Court is of the view that some enhancement can be granted under the head loss of amenities. Considering the entire facts and circumstances of this case a further sum of Rs.10,000/- can be granted under this head. _M.A.C.A.No.1626/2013_ _10_ Thus the total compensation awarded under this head is fixed as Rs.39,900/- [14400+10000+10000+4000+1500]. The 3[rd] respondent Insurance Company shall deposit the said amount along with interest and proportionate costs as ordered by 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** DG