MACA No. 1312 of 2013 & MACA No. 1314 of 2013

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 21ST DAY OF JULY 2017 / 30TH ASHADHA, 1939 MACA.No. 1312 of 2013 AGAINST THE AWARD IN OPMV 714/2011 of M.A.C.T.,KOTTAYAM DATED 14-01-2013 APPELLANT(S)/PETITIONER RAMANI ANTHANATTU HOUSE, EDAVATTOM, KULASEKHARAMANGALAM, VAIKOM. BY ADVS.SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN RESPONDENT(S)/RESPONDENTS: 1. LOGESH PUTHANKULANGARA, MULAKULAM, KARICKODU. 2. LEKHA SABU, ARATHARA, CHEMMANATHUKARA, VAIKOM. 3. THE UNITED INDIA INSURANCE CO. LTD. KOTTAYAM. R3 BY ADV. SRI.RAJESH THOMAS R1-R2 BY ADV. SRI.ALIAS M.CHERIAN R BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21-07-2017, ALONG WITH M.A.C.A.NO.1314 OF 2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SKS ## **C.T.RAVIKUMAR & ANIL K NARENDRAN, JJ.** **----------------------------------M.A.C.A. Nos. 1312 & 1314 of 2013 ---------------------------------------------Dated this the 21[st ] day of July, 2017** ## **JUDGMENT** ## **C.T.Ravikumar, J.** These appeals arise from a common award passed by the Motor Accidents Claims Tribunal, Kottayam in O.P.(M.V.) Nos. 714 of 2011 and 715 of 2011 dated 14.01.2013. The former appeal is directed against the award in O.P.(M.V.) No.714 of 2011 and the latter appeal is directed against the award in O.P.(M.V.) No.715 of 2011. The appellants were the petitioners before the Tribunal. They filed the said claim petitions, under Section 166 of the Motor Vehicles Act, seeking compensation for the injuries sustained by them in a motor vehicle accident that occurred on 30.08.2009 at 1.30 pm. The appellant in the former appeal is the mother of the appellant in the latter. On that fateful day, they were standing near Pottanchira Junction by the side of Thalayolaparambu-Vaikom road. On that day the car bearing Registration No.KL 36A3420 driven by the 1[st] respondent knocked them down and M.A.C.A. Nos. 1312 & 1314 of 2013 2 consequently, they sustained injuries. Initially, they were taken to Community Health Centre, Vaikom. Thereafter, they were referred to Medical College Hospital, Kottayam. The appellant in the latter appeal remained as an inpatient for a period of 26 days and the appellant in the former appeal has to remain as inpatient for a period of 4 days. The appellant in the latter appeal incurred permanent disability owing to the injuries sustained in the accident. In O.P.(M.V.) No.714 of 2011 as against the claim of Rs.10 lakhs, the Tribunal has granted an amount of Rs.61,945/- and in O.P.(M.V.) No.715 of 2011 as against the claim of Rs.30 lakhs, the Tribunal has granted an amount of Rs.2,50,980/-, as compensation. Interest at the rate of 7.5% per annum from the date of petition till realisation was ordered in both cases. Alleging inadequacy of the quantum of compensation, appeals have been filed seeking enhancement. 2. Heard the learned counsel appearing for the Insurance Company in the former appeal, the learned counsel appearing for the 3[rd] respondent in the former appeal and the learned counsel appearing for the 3[rd] respondent in the latter M.A.C.A. Nos. 1312 & 3 1314 of 2013 appeal. There is no dispute regarding the accident, the cause of the accident as also the liability of the 3[rd] respondent insurer of the offending vehicle to indemnify the insured owner of the said vehicle. In the said circumstances, we are only called upon to consider whether or not the appellants are entitled to get enhanced compensation. ## **M.A.C.A. No. 1312 of 2013** 3. As already noticed, this appeal arise from the judgment and award dated 14.01.2013 in O.P.(M.V.) No.714 of 2011. The injured appellant was then aged 45 years. Going by Ext.A5 wound certificate, she sustained the following injuries in the accident:- Lacerated wound having a size of 1 X 0.5 cm, black eye and BAT (rater of peritoneal haematoma). She was admitted in the Medical College Hospital, Kottayam on 30.08.2009 and discharged from the Hospital on 03.09.2009. 4. The claim petition filed by the appellant herein was jointly enquired into along with the O.P.(M.V.) No.715 of 2011. Both sides did not adduce any oral evidence. In fact, the evidence before the Tribunal consisted only of documentary evidence on the side of the petitioner, viz., Exts.A1 to A17. M.A.C.A. Nos. 1312 & 1314 of 2013 4 After evaluating the evidence on record and the rival contentions, the Tribunal has assessed a total compensation of Rs.61,945/- as hereunder : |**_Sl.No._**|**_Head of Claim_**|**_Amount_**<br>**_Claimed (in_**<br>**_Rupees)_**|**_Amount_**<br>**_awarded_**<br>**_(in Rupees)_**|**_Basis vital_**<br>**_details in a nut_**<br>**_shell_**| |---|---|---|---|---| |1|Transportation|Rs.3,000/-|Rs. 1,500/-|In view of the<br>visits to the<br>Hospital| |2|Extra<br>nourishment|Rs.5000/-|Rs. 1,500/-|Nominal amount| |3|Damage<br>to<br>clothings|Rs.1,000/-|Rs.500/-|......do.......| |4|Bystander<br>expenses|Rs.2,000/-|Rs.800/-|Bystander<br>expenses for 4<br>days at the rate<br>of rs.200/- per<br>day| |5|Medical<br>expenses|Rs.50,000/-|Rs.8,645/-|As per Ext.A10<br>series medical<br>bills| |6|Loss of earning|Rs.10,000/-|Rs.14,000/-|3,500/-<br>X4<br>=14,000/-| |7|Pain<br>and<br>sufferings|Rs.5,00,000/-|Rs.20,000/-|Ion view of the<br>pain suffered by<br>the petitioner as<br>a result of the<br>injuries| |8|Loss<br>of<br>amenities||Rs.15,000/-|The<br>injuries<br>must<br>have<br>restricted<br>her<br>enjoyment of life| |9|Permanent<br>disability|Rs.2,27,000/-|Not allowed|No evidence| |10|Loss of earning<br>power|Rs.2,00,000/-|Not allowed|........do........| ||**Amount**<br>**claimed**|**Rs.10,00,000/**<br>**-**|**Rs.61,945/**<br>**-**|.......................| M.A.C.A. Nos. 1312 & 5 1314 of 2013 5. In the appeal, the appellant raised various grievances. According to her, the amounts granted under the heads transportation expenses, extra nourishment and bystander are on the lower side. So also, it is her contention that the Tribunal had failed to order reimbursement of medical expenses appropriately. We have carefully gone through the schedule of compensation given in the impugned judgment and award. 6. Towards transportation, the Tribunal has granted an amount of Rs.1,500/- as against the claim of Rs.3,000/-. Immediately after the accident, the appellant was taken to the Community Health Centre, Vaikom and from there she was referred to Medical College Hospital, Kottayam. She remained there as an inpatient only for four days. There is no evidence regarding further hospitalisation or even a further visit for review. In such circumstances, we do not find any reason to interfere with the amount granted towards the transportation expenses. The accident occurred in the year 2009. The Tribunal has granted Rs.200/- per day towards bystander expenses. In other words, for four days of hospitalization an M.A.C.A. Nos. 1312 & 6 1314 of 2013 amount of Rs.800/- was granted. Towards damage to clothing, Tribunal has granted an amount of Rs.500/- . Though the petitioner had remained as inpatient only for four days, the Tribunal has granted an amount of Rs.1,500/- towards extra nourishment. Therefore, we do not find any reason to interfere with the quantities of compensation/amount reimbursed, under the said heads by the Tribunal. Schedule of compensation would reveal that taking note of the fact that she had black eye and BAT besides, a lacerated wound having a size of 1X.5 cms, the Tribunal has taken the period of loss of earning as four months. The said fixation cannot be said to be too short and therefore, it warrants no interference. Towards pain and suffering, the Tribunal has granted an amount of Rs.20,000/-. Despite the fact that the injuries did not result in permanent disability, the Tribunal has granted Rs.15,000/- towards loss of amenities. Considering the fact that she was aged at 45 and was a house-wife, the Tribunal has fixed the monthly income of the appellant for the purpose of computing compensation towards loss of earning as Rs.3,500/-. The said notional fixation of the monthly income in relation to the appellant, who M.A.C.A. Nos. 1312 & 1314 of 2013 7 was a house-wife, cannot be said to be on the lower side in the light of the decision of the Apex Court in **Lata Wadhawa and** ## **others v. State of Bihar and others [2001 KCJ 1735].** Having given our anxious consideration, we do not find any reason to hold that the appellant was denied just compensation commensurating with the injuries sustained. Upshot of the discussion is that no case was made out by the appellant for interference with the award. Therefore, this appeal is liable to fail. ## **M.A.C.A. No. 1314 of 2013** 7. This appeal is directed against the judgment in O.P. (M.V.) No. 715 of 2011. The injured appellant was aged only 16 years at the time of the accident. She was then, a plus two student. Going by Ext.A6 wound certificate and Ext.A11 discharge summary issued from Medical College Hospital, Kottayam, she sustained the following injuries in the accident. 8. Lacerated wound having a size of 2.5X0.5 cm over the chin, pain and swelling left knee joint, subluxation of sacroiliac joint left and fracture superior and inferior pubic rami. She remained as an inpatient for a period of 26 days. M.A.C.A. Nos. 1312 & 8 1314 of 2013 The evidence on record, as discussed in the impugned judgment itself, would reveal that she had lost one academic year. The injuries sustained in the accident resulted in permanent disability. The permanent disability was assessed by a duly constituted Medical Board as 18%. As against the claim of Rs. 30 lakhs, the Tribunal has awarded an amount of Rs.2,50,980/-. Essentially, the contention of the appellant is that she was deprived of just compensation. 9. Going through the impugned judgment and also the memorandum of appeal, we are of the view that this is an eminently fit case warranting exercise of the appellate jurisdiction. The nature of the injuries revealed from Ext.A6 wound certificate and Ext. A11 discharge summary, referred to in the impugned judgment itself, together with Ext.X1, disability certificate would reveal the nature of the injuries and their impacts. As noticed herein before, it resulted in 18% permanent disability. It is thus obvious that the injured, who is a female, sustained subluxation of sacroiliac joint left and a fracture on superior and inferior pubic rami. Despite those aspects, revealed from those documents, which were M.A.C.A. Nos. 1312 & 9 1314 of 2013 specifically taken note of by the Tribunal, no amount whatsoever was granted by the Tribunal towards loss of marriage prospects. Virtually, the Tribunal has rejected the claim thereunder. True that the Tribunal has granted an amount of Rs.50,000/- as loss of amenities. For the purpose of computing compensation for permanent disability, the Tribunal has notionally fixed the monthly income of the appellant as Rs.3,000/-. We will firstly consider whether the fixation of the monthly income by the Tribunal for calculation purpose for calculating compensation for permanent disability warrants interference. Taking into the account the age of the appellant at the time of the accident and the year of the accident, we do not find any reason to hold that the fixation of the monthly income notionally as Rs.3,000/- is too low. But at the same time, we are of the considered view that taking into account the impact of the accident, the degree of the permanent disability and the age at which she sustained such injuries, the Tribunal court ought to have considered the question whether any addition ought to have been made to the income thus fixed. The nature of the injuries sustained would M.A.C.A. Nos. 1312 & 1314 of 2013 10 reveal that it may adversely affect her capacity to discharge the functions of a house-wife in the longer run. 10. In Ext.X1 disability certificate, the following facts were recorded. The petitioner walks with a limping. There is shortening of left lower limb by one inch, prominence of ileum by left sacroiliac joint, tenderness over left sacroiliac joint and left superior and inferior pubic rami. She is having stiffness of knee and subluxation of sacroiliac joint. Evdiently, the petitioner had undergone examination by the Medical Board at the age of 19 years. As noticed herein before, she sustained injuries at the age of 16 years. When the impact of injuries were noted by the Medical Board, that too, after about three years is of such nature, we have no hesitation to hold that the appellant ought to have been adequately compensated, taking into account all such aspects. Though the percentage of the disability is assessed only as 18%, taking note of the nature of the injuries and their impacts, we are inclined to make an addition of 50% to the income with a view to grant just compensation to the petitioner in terms of the provisions under Section 168 of the MV Act. Based on the re-fixation of the M.A.C.A. Nos. 1312 & 11 1314 of 2013 monthly income, the amount payable towards permanent disability would come to Rs.1,74,960/-(4500X12X18X18/100). The Tribunal has already granted an amount of Rs.1,16,640/-. After dedecuting the said amount, the appellant is entitled to get an amount of Rs. 58,320/- under that head. 11. In view of the naure of the injuries, it is evident that she must have had further reviews from the Hospital. The Tribunal has granted only an amount of Rs.2,500/- towards transportation. We are inclined to grant an amount of Rs.2,500/- more under that head. She had been an inpatient for a period of 26 days. The Tribunal has granted an amount of Rs.1,500/- towards extra nourishment, obviously at the rate of about Rs. 58/- per day. We are of the view that, it ought to have been Rs.100/- per day. In that view of the matter, the appellant is entitled to get Rs.1,100/- additionally under that head. Towards bystander expenses, the Tribunal has granted only an amount of Rs.5,200/-.The nature of the injuries referred herein-before would reveal undoubtedly that she must have had the services of a bystander even after discharge from the Hospital. The particular part on which the injuries M.A.C.A. Nos. 1312 & 12 1314 of 2013 sustained and the grievous nature of the injuries persuade us to hold that the appellant is entitled to get expenses towards bystander for a period of two months in addition to what was granted by the Tribunal viz., 26 days. Accordingly, the appellant is entitled to get an amount of Rs.12,000/thereunder. 12. Despite the fact that the appellant is a female and she sustained such injuries as mentioned above, at the age of 16 years no amount was granted by the Tribunal towards loss of marriage prospects. Ext.X1 revealed that there was shortening of left lower limb by one inch. There was a subluxation over sacroiliac joint and a fracture on superior and inferior pubic rami. Thus the nature of the injuries would undoubtedly reveal that it would adversely affect her family life. In other words, it would diminish her marriage prospects. While considering the question as to what should be the quantum of compensation to be granted to the appellant under that head, we are of the view that it is only apropos to refer to a decision of the Honourable Apex Court in **G.Ravindranath @ R.Chowdary v. E.Srinivas and another** reported in **AIR** M.A.C.A. Nos. 1312 & 1314 of 2013 13 ## **2013 SC 2974.** 13. Paragraphs 17 to 19 thereunder would reveal that the Honourable Apex Court had interfered with the award of Rs.50,000/- granted towards the loss of marriage prospects holding that the amount thus granted is too inadequate. In that case, the injured was aged only 19 years. He was studying in Pre-university. In fact, the injuries were sustained to a male. Taking into account the fact that the injuries referred herein-before occured to a female, that too, at the age of her sixteen years and the adverse impacts, it could be said with certitude that it would affect her marriage prospects. We are of the view that it is only proper to grant an amount of Rs.1,50,000/- towards loss of marriage prospects. 14. In the result :- M.A.C.A No. 1312 of 2013 is dismissed. M.A.C.A No. 1314 of 2013 is allowed as hereunder:- The appellant is granted an additional compensation of Rs.2,23,920/- which is rounded off to Rs.2,25,000/-. The said additional compensation will carry interest at the rate of 8% per annum from the date of the petition till the realization. M.A.C.A. Nos. 1312 & 1314 of 2013 14 Since there is no dispute regarding the liability of the insurer to indemnify the insured owner, the 3[rd] respondent is directed to deposit the additional compensation along with the interest thereon within a period of two months from the date of receipt of a copy of this judgment. There is no order as to costs in both the appeals. **sd/-** **C.T.RAVIKUMAR JUDGE** **sd/-** **ANIL K NARENDRAN JUDGE** **SKS**