MACA NO. 1702 OF 2009

MACA NO. 1702 OF 2009 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 13[TH] DAY OF JANUARY 2022 / 23RD POUSHA, 1943 MACA NO. 1702 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 422/2003 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL ,KALPETTA** **APPELLANT/S:** ELSY VARGHESE, AGED 34 YEARS W/O.P.K.VARGHESE, PUTHENPURACKAL HOUSE,, MANDAD P.O., KALPETTA(VIA), VYTHIRI TALUK,, WAYANAD DISTRICT. BY ADV SRI.N.J.ANTONY ## **RESPONDENT/S:** 1 MATHAI, AGED 45 YEARS S/O.CHACKO, PUTHANPURACKAL HOUSE,, VELLITHODU, THRIKKAIPATTA., (DRIVER OF BUS (TTL) NO.KL12B/4197.D.L.NO.4393/ 73/W). 2 A.B.VINODKUMAR AGE NOT KNOWN S/O.BALAN,, MANAGING DIRECTOR, THRIKKAIPATTA TRAVELS LTD.,, THRIKKAIPATTA., (OWNER OF BUS(TTL)NO.KL-12B/4197). 3 NATIONAL INSURANCE CO. LTD. KALPETTA., (POLICY NO.570800/31/02/6308759). 4 AJEESH M.JOSE AGE NOT KNOWN S/O.JOSEPH M.A., MORTIKUTTIYIL HOUSE,, THRIKKAIPATTA,, (DRIVER OF BUS NO.KL7AF/7250.D.L.NO.2212/01/W). 5 UNITED INDIA INSURANCE CO. LTD. KALPETTA., (POLICY NO.100203/31/02/62658). 6 ABDUL KAREEM MUCHETTA HOUSE MACA NO. 1702 OF 2009 2 H.M.T.COLONY, KALAMASSERY, ERNAKULAM. BY ADVS. SMT.S.JAYASREE SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1702 OF 2009 3 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.422/2003 on the file of the Motor Accidents Claims Tribunal, Kalpetta. The respondents 1 to 4 in the appeal were the respondents 1 to 4 before the Tribunal. As the 5[th] respondent before the Tribunal was struck off from the party array, the respondents 6 and 7 before the Tribunal are arrayed as the respondents 5 and 6 in the appeal. Nonetheless, the parties are for the sake of convenience, referred to as per their original litigate status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that she sustained in an accident on 15.08.2003. It was her case that, on the above said date, while she was traveling in a bus bearing registration No.KL-12B 4197 (offending bus) from Muttil to Kalpetta, due to the rash and negligent driving of the offending bus by the 1[st] respondent, the bus hit another bus bearing registration No.KL-7AF-7250 driven by the 4[th] respondent. The appellant was treated as an inpatient for a period of seven days. The offending bus was driven by the MACA NO. 1702 OF 2009 4 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. The other bus was driven by the 4[th] respondent, owned by the supplemental 7[th] respondent and insured with the 6[th] respondent. (On finding that the 5[th] respondent was not the owner of the other bus, the petitioner got the 5[th] respondent struck off from the party array and impleaded the supplemental 7[th] respondent). The petitioner was a home maker and was earning a notional monthly income of Rs.3,000/-. Hence, the petitioner claimed a compensation of Rs.2,30,000/- from the respondents, which claim was limited to Rs.2,00,000/-. 3. The respondents 1 and 2 did not contest the proceeding. 4. The 3[rd] respondent had filed a written statement contending that the accident occurred due to the negligence of the other bus. However, the 3[rd] respondent had admitted that the offending bus had a valid insurance coverage. 5. The 6[th] respondent had filed a written statement contending that the 5[th] respondent was not the owner of the other bus. However, after the supplemental 7[th] respondent was impleaded, the 6[th] respondent admitted that the supplemental 7[th] respondent was the insured. Nevertheless, the 6[th] MACA NO. 1702 OF 2009 5 respondent contended that the accident happened due to the negligence of the 1[st] respondent. 6. The petitioner had produced and marked Exts.A1 to A9 in evidence. The disability certificate issued by the Medical Board was marked as Ext.C1. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioner to recover from the respondents 3 and 6 – the insurers of both the buses - an amount of Rs.10,450/with interest at the rate of 6% per annum from the date of petition till the date of realisation and proportionate cost. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard Sri. N.J. Antony, the learned counsel appearing for the appellant/petitioner, Sri. P. Jacob Mathew, the learned counsel appearing for the 3[rd] respondent/insurer and Smt. S.Jayasree, the learned counsel appearing for the 5[th] respondent/6[th] respondent/insurer. 10. The point that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just ? MACA NO. 1702 OF 2009 6 ## **Negligence and Liability** 11. The petitioner had contended that the accident occurred due to the negligence of the drivers of the two buses, namely the respondents 1 and 4. Indisputably, the 2[nd] and supplemental 7[th] respondents were the owners and the 3[rd] and 6[th] respondents are insurers of the two buses. The insurers have not proved that the insured have violated the insurance policy conditions. Therefore, it is the respondents 3 and 6 – the insurers of the buses - who are liable to pay the compensation amount in equal shares. ## **Income** 12. The petitioner had claimed that she was a housewife and was having a notional monthly income of Rs.3,000/-. For want of materials, the Tribunal had fixed the monthly income of the petitioner on notional basis at Rs.2,000. ## 13. In **Ramachandrappa vs. Manager, Royal Sundaram** **Alliance Insruance Company Ltd.** : (2011) 13 SCC 236, the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 14. Following the yardstick in the afore-cited decision and MACA NO. 1702 OF 2009 7 considering the fact that the petitioner was a house wife, who had claimed to be getting a notional monthly income of Rs.3,000/-, and the fact that the accident occurred in the year 2003, I fix the notional monthly income of the petitioner at Rs.4,000/-. ## **Loss of earnings** 15. The Tribunal found that the petitioner was indisposed for a period of one month. However on a perusal of Ext.C1 disability certificate, it is found that the petitioner had suffered a fracture of the nasal bone and fracture of coccyx (tailbone). In the above circumstances, I hold that petitioner was indisposed for a period of three months. 16. In view of the refixation of the notional monthly income of the appellant at Rs.4,000/- per month, I award the appellant an amount of Rs.12,000/- towards 'loss of earnings', instead of Rs.2,000/- awarded by the Tribunal. ## **Bystander expenses and extra nourishment** 17. The petitioner was treated as inpatient for a period of 7 days. Taking note of the fact that the accident occurred in the year 2003, I award her an amount of Rs.200/- per day for a period of 7 days towards 'bystander expenses', which works out MACA NO. 1702 OF 2009 8 to Rs.1,400/-, instead of Rs.500/- awarded by the Tribunal. ## **Pain and sufferings and loss of amenities** 18. The Tribunal had awarded an amount of Rs.5,000/under the above two heads. 19. Taking into consideration the fact that the petitioner had sustained two fractures, that she was treated as an inpatient for a period of 7 days, that she was indisposed for three months and that she had sustained a functional disability of 2%, I award her an amount of Rs.15,000/- under the head 'pain and sufferings' i.e., an enhancement of Rs.10,000/- and an additional amount of Rs.5,000/- under the head 'loss of amenities'. ## **Disability** 20. The petitioner was referred to a duly constituted Medical Board attached to the District Hospital, Mananthavadi. A four member Medical Board found that the petitioner has a permanent disability of 2%. However, the Tribunal declined to accept the said certificate. 21. In **Raj Kumar vs. Ajay Kumar** : [2011 (1) KLT 620], the Honourable Supreme Court has categorically held that in an injury claim, if the Tribunal is not satisfied with the disability MACA NO. 1702 OF 2009 9 certificate produced before it, the Tribunal has to refer the injured/claimant to a duly constituted Medical Board. Also, what needs to be looked into in such cases, is the functional disability of the injured/claimant. 22. In the instant case, the Tribunal after referring the petitioner to a Medical Board, and the Medical Board assessing the petitioner's permanent disability at 2%, the refusal of the Tribunal to accept Ext.C1, is erroneous and patently wrong. Following the principles in **Rajkumar** (supra), and accepting Ext.C1 on its face value, I fix the petitioner's functional disability at 2%. ## **Multiplier** 23. The petitioner was aged 34 years at the time of the accident. Following the principles laid down in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802], the relevant multiplier to be adopted is '16'. ## **Loss due to disability** 24. Taking into account the above mentioned factors, namely, the notional monthly income of the petitioner at Rs.4,000/-, her functional disability at 2% and the multiplier at 16, I award her an amount of Rs.15,360/- as compensation for MACA NO. 1702 OF 2009 10 'loss due to disability'. 25. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 26. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. **==> picture [462 x 375] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>No. awarded by the awarded by<br>Tribunal (in this Court<br>Rs.) (in Rs.)<br>1. Loss of earnings 2,000 12,000<br> 2. Transportation expenses 500 500<br>3. Damage to clothing 250 250<br>4. Bystander expenses 500 1,400<br>5. Extra nourishment 500 500<br>6. Medical expenses 1,700 1,700<br>7. Pain and sufferings 5,000 15,000<br>8. Loss of amenities 0 5,000<br>9. Loss due to disability 0 15,360<br>**----- End of picture text -----**<br> MACA NO. 1702 OF 2009 11 **Total 10,450 51,710** 27. In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.41,260/-/- with interest @ 6% per annum from the date of petition till the date of deposit, after deducting interest for a period of 142 days i.e., period of delay and as ordered by this Court on 27.09.2021 in CM Appl.No.1/2009, and a cost of Rs.5,000/-. The respondents 3 and 5 in the appeal/respondents 3 and 6 before the Tribunal (insurers of the two buses) are ordered to pay the enhanced compensation amount with interest and cost before the Tribunal within period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellant/petitioner in accordance with law. Sd/- ## **C.S.DIAS, JUDGE** rkc/15.01.22