MACA No.1322 of 2010

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 26TH DAY OF AUGUST 2013/A4TH BH** ## **MACA.No. 1322 of 2010 ( )** **-------------------------OP(MV)NO. 761/2003 OF ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL,THRISSUR ----------------------------------------------** ## **APPELLANT/PETITIONER:** **----------------------------------------------** ## **SINDHU, W/O. SAJI,** **KUNNATHUSSERIYIL HOUSE, (NIRAVUKAVIL), P.O. KALLAMALA,ATTAPADI, PALAKKAD DISTRICT.** ## **BY ADV. SRI.P.V.CHANDRA MOHAN** **RESPONDENT(S)/RESPONDENTS :** **--------------------------------------------------** **1. GEORGE P.V., S/O. VARGHESE, PALLATH HOUSE, JELLIPARA, AGALI, PALAKKAD DISTRICT.** **2. JAISON GEORGE, S/O. GEORGE VARGHESE, PALLATH HOUSE, JELLIPARA, AGALI, PALAKKAD DISTRICT.** **3. UNITED INDIA INSURANCE CO. LTD., REPRESENTED BY THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, THRISSUR.** **R1 & R2 BY ADV. SRI.M.V.THAMBAN** **SRI.R.REJI** **SMT.THARA THAMBAN SRI.B.BIPIN** **SMT.REVATHY P.NAIR** - **R3 BY SRI.MATHEWS JACOB,SENIOR ADVOCATE ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ----------------------------------------------------------------M.A.C.A. No.1322 of 2010 -----------------------------------------------------------------Dated this the 26[th] day of August, 2013 J U D G M E N T ## K. Ramakrishnan, J An unfortunate young lady who is the petitioner in O.P.(M.V). No.761/2003 on the file of the Additional Motor Accidents Claims Tribunal, Thrissur is the appellant herein. The appellant was aged only 27 years at the time of the accident, became a paraplegic patient, on account of the accident occurred due to the rash and negligent driving of a vehicle by the 2[nd] respondent, owned by the 1[st] respondent and insured with the 3[rd] respondent and she filed the application for compensation for the injuries and consequential disabilities suffered by her in the accident. 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 2[nd] respondent and awarded a total compensation of ₹ 11,86,500/- on various heads as follows: M.A.C.A. No.1322 of 2010 2 |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**awarded₹**| |---|---|---| |1<br>2<br>3<br>4<br>5<br>6<br>7<br>8|Transport to the hospital<br>Loss of earning<br>Pain and suffering<br>Medical expenses<br>Bystander expenses<br>Extra nourishment<br>Loss of amenities<br>Clothing<br>Total|2000<br>25000<br>50000<br>474000<br>40000<br>5000<br>50000<br>500<br>1186500| Dissatisfied with the quantum of compensation awarded, the appellant has come up before this court with the above appeal. 2. Heard the learned counsel for the appellant and counsel for the insurance company. 3. The counsel for the appellant submitted that the petitioner was aged only 27 years at the time of the accident and she was working as an Anganwadi teacher and also operating a flour mill and getting more than 5,000/- per month. Further apart from that, she is₹ looking after the household work as a house wife as well. On account of the injuries, she became a paraplegic patient and sustained 100% disability. Somebody will have to look after her throughout her life. She has lost M.A.C.A. No.1322 of 2010 3 her marital life as well. Considering these aspects, the notional income fixed by the tribunal as 2,500/- is far₹ less and the amounts awarded under the head pain and suffering, loss of amenities in life etc., are also less. Further, the evidence was adduced on the side of the petitioner to prove that she had paid 1,30,000/- towards₹ bystander expenses and that was proved through by examining PW2 bystander. But, the tribunal was not justified in awarding only 40,000/- under that head. No₹ amount was awarded for future bystander expenses as well. So, according to the learned counsel for the appellant, the appellant is entitled to enhancement on all heads. 4. On the other hand, the counsel for the insurance company submitted that, the tribunal has taken 100% disability and awarded compensation under the head loss of earning capacity. But, the tribunal has also awarded 25,000/- under head loss of earning during the₹ M.A.C.A. No.1322 of 2010 4 period of treatment, which is unsustainable in law. Further, as per **Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC)** , the multiplier to be taken for the age group of 27 is only 17. But the tribunal has taken 18 as multiplier. Considering these aspects, the total compensation awarded by the tribunal is just and proper and no interference is warranted at the hands of this court. 5. We have considered the rival contentions of both parties in detail. 6. It is unfortunate that the young lady aged 27 years having husband and two minor children has become a paraplegic patient, on account of the injuries sustained by her in the accident. It is true that, though she claimed that she was an Anganwadi teacher and also operating flour mill and getting 5,000/- per month, no₹ evidence has been adduced to prove this fact, except her own evidence. But, the accident occurred in the year M.A.C.A. No.1322 of 2010 5 2002. Apart from doing anganwadi teacher work, she will have to look after her house hold work as well. So considering these aspects, the monthly income of ₹ 2,500/- fixed by the tribunal, appears to be on the lower side and we enhance the same to 3,000/- per month.₹ There is some force in the submission made by the counsel for the insurance company that, the multiplier ought to have been taken as 17 because as per Sarla Verma's decision (supra), the multiplier applicable to the age group of 27 years is 17. Taking the monthly income as 3,000/-, per month and multiplier as 17, disability has₹ taken by the tribunal as 100%, the appellant will be entitled to get an amount of 6,12,000/-, under the head₹ loss of earning capacity instead of 5,40,000/- awarded₹ by the tribunal. 7. The documents produced show that she was treated as inpatient for 318 days. Further, even after discharge, she was completely bedridden and being M.A.C.A. No.1322 of 2010 6 looked after by a bystander and this condition even now continues. PW2 was examined in the court to prove that she was paid 1,30,000/- towards bystander expenses, till₹ she was examined before the court. The tribunal has awarded only 40,000/- under the head. There is nothing₹ brought out to disbelieve the evidence of PW2, regarding her evidence on this aspect. So, the tribunal was not justified in deducting the amount under that head. Further the tribunal has not considered the fact that, she will have to employ a person through out her life for this purpose as well. So, considering these aspects, we feel that an additional amount of 2,00,000/- can be awarded₹ under the head bystander expenses, incurred during the period of treatment and also for future bystander expenses. 8. Considering the nature of injuries sustained and period of treatment undergone, we feel that the amount awarded under the head pain and M.A.C.A. No.1322 of 2010 7 suffering also appears to be on the lower side and we also enhance the same to 75,000/- from 50,000/- awarded₹ ₹ by the tribunal. The tribunal has awarded only ₹ 50,000/- under the head loss of amenities in life. She was aged only 27 years at the time of the accident. She has completely lost her marital life because of the injuries sustained by her in the accident. Further, she may not be able to lead her normal life and enjoy her life with her husband and children as well. She will have to live with these difficulties, for the remaining period of her life. So, considering these aspects, we allow an additional amount of 1,50,000/- under the head loss of amenities in life.₹ She will have to incur future medical expenses as well. So, considering these aspects, we award an additional amount of 50,000/- under that head as well. We are not₹ inclined to enhance any amount under other heads, as the amount awarded appears to be just and proper. In all, the appellant will be entitled to get an additional amount M.A.C.A. No.1322 of 2010 8 of 4,97,000/-,over and above the compensation awarded₹ by the tribunal, which the 3[rd] respondent insurance company is liable to pay with 9% interest, from the date of the claim petition, till date of payment. Three 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. **==> picture [26 x 12] intentionally omitted <==** S. Siri Jagan, Judge **==> picture [40 x 12] intentionally omitted <==** K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss