MACA Nos. 2120/2013 & 2148/2013: Shaija Shajahan v. Xavier S/O Joseph, Haridas S/O Kunjunny, Oriental Insurance Co. Ltd. (and IBA Shajahan (Minor) represented by Shaija Shajahan)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 11[TH] DAY OF MARCH 2024 / 21ST PHALGUNA, 1945** **MACA NO. 2120 OF 2013** **AGAINST THE ORDER/JUDGMENT DATED 10.01.2013 IN OPMV NO.2836 OF 2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** **SHAIJA SHAJAHAN AGED 38 YEARS W/O.SHAJAHAN,RESIDING AT VAKKATTUKAYIL,VENKIDANGU,THRISSUR DISTRICT** **BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD** ## **RESPONDENT/RESPONDENTS:** - **1 XAVIER S/O.JOSEPH,RESIDING AT VENATTUSSERY HOUSE,POOMALA P.O,KILLANNUR,THRISSUR DISTRICT PIN 680 581** - **2 HARIDAS,S/O.KUNJUNNY,RESIDING AT PULIYAKKATTIL HOUSE,MANGALAMKUNNU,PALAKKAD 680 518** - **3 THE ORIENTAL INSURANCE COMPANY LIMITEDTHRISSUR 680 001** **BY ADVS. SRI.GEORGE CHERIAN SR. SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.03.2024, ALONG WITH MACA.2148/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A Nos.2120 and 2148 of 2013 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 11[TH] DAY OF MARCH 2024 / 21ST PHALGUNA, 1945** **MACA NO. 2148 OF 2013** **AGAINST THE ORDER/JUDGMENT DATED 10.01.2013 IN OPMV NO.2837** **OF 2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,THRISSUR APPELLANT/PETITIONER:** **IBA SHAJAHAN(MINOR),D/O SHAJAHAN, AGED 9 YEARS,REPRESENTED BY GUARDIAN MOTHER SHAIJA SHAJAHAN, W/O SHAJAHAN, AGED 38 YEARS. BOTH ARE RESIDING AT VAKLKATTUKAYIL, VENKIDANGU, THRISSUR DISTRICT.** **BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU** ## **RESPONDENT/RESPONDENTS:** - **1 XAVIER,S/O JOSEPH, RESIDING AT VENATTUSSERY HOUSE, POOMALA P.O., KILLANNUR, THRISSUR DISTRICT, PIN:680 581.** - **2 HARIDAS,S/O KUNJUNNY, RESIDING AT PULIYAKKATTIL HOUSE, MANGALAMKUNNU, PALAKKAD-680 518.** - **3 THE ORIENTAL INSURANCE COMPANY LIMITED THRISSUR-680 001.** ## **BY ADV SRI.G.SREEKUMAR (CHELUR)** ## **LATHA SUSAN CHERIAN- R2** THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.03.2024, ALONG WITH MACA.2120/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A Nos.2120 and 2148 of 2013 3 ## **JUDGMENT** Both these appeals arise from a common award passed in O.P(M.V) No.2836/2005, O.P(M.V) No.2837/2005 and O.P(M.V) No.2838/2005. Out of the three cases, two appeals have been filed by the respective claimants in O.P(M.V)Nos.2836/2005 and 2837/2005, which are MACA Nos.2120/2013 and 2148/2013 respectively. 2. The accident in this case, occurred on 22.09.2005, when the respective claimants in the said claim petitions were travelling on a motorcycle. The claimant in O.P(M.V) No.2838/2005 was the rider of the said motorcycle and it collided with a bus bearing Registration No.KL-08-Z-5959, driven by the 2nd respondent in a rash and negligent manner. The 1st respondent was the owner of the said bus and it was insured with the 3rd respondent. The claimants have sustained injuries in the accident and the claim petitions were submitted in such circumstances. 3. The 1st and 2nd respondent remained ex parte. The 3rd respondent filed a written statement admitting the existence of a valid insurance policy for the bus. However, they denied the negligence on the part of the 2nd respondent and according to M.A.C.A Nos.2120 and 2148 of 2013 4 them, the accident occurred due to the negligence of the rider of the motorcycle. The quantum of compensation claimed by the claimants was also disputed by them. 4. In the joint trial of all three claim petitions, to substantiate the respective contentions, the claimants therein have produced Exts.A1 to A20 from their side. The respondent’s evidence consists of Exts.B1 and B2. 5. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 2nd respondent and being the insurer, the 3rd respondent was held liable to pay the compensation. In O.P(M.V) No.2836/2005, the quantum of compensation was fixed as Rs.1,25,550/-, whereas in O.P(M.V) No.2837/2005, the compensation awarded was Rs.31,400/- and the said amounts were directed to be deposited by the 3rd respondent with interest at the rate of 8% per annum from the date of petition till realisation. These appeals were submitted in such circumstances seeking enhancement of compensation. 6. Heard, Sri.Nimod A.R, the learned counsel appearing for the appellants in both the claim petitions, Sri. G.Sreekumar Chelur, the learned counsel appearing for the 1st and 2nd M.A.C.A Nos.2120 and 2148 of 2013 5 respondents and Smt. Latha Susan Cherian, the learned counsel appearing for the 3rd respondent. 7. The only question that arises for consideration in both these appeals pertains to the quantum of compensation. The said issues are dealt with in the following manner. ## **MACA No.2120/2013 arising from OP(MV)No.2836/2005,** 8.1 This is a case in which a housewife aged 30 years, sought compensation for the injuries sustained in the accident referred to above. According to her, she sustained very serious injuries and it resulted in physical disablement as well. The appellant relies on Ext.A20 disability certificate, wherein her disability was certified as 9%. However, the said certificate was not accepted as such, in view of the fact that the doctor who issued the said certificate was not examined. However, it is to be noted that the medical records would indeed establish that she sustained very serious injuries. The details of the injuries are as follows: “Fracture tibia Rt.leg, fracture left frontal bone and cerebral oedema, punctured wound on Rt.Leg, lacerated wound 7 x 1 cm. Bone deep on left forehead, bleeding from left ear, abrasion on left arm, black eye left, blush coloured bruise on chin and M.A.C.A Nos.2120 and 2148 of 2013 6 lower jaw, areas and beneath the chin, head injury. Type-I open fracture right tibia.” She was treated as an inpatient for 20 days as well. Considering the nature of injuries which includes Type-I open fracture right tibia and head injuries, including the fracture of left frontal bone and cerebral oedema, the percentage of disability of 9% was probable. It is also evident from the records that the appellant had undergone two major surgeries as well. In **G. Manikandan v. K. Janardhanan Nair & Others [2021 5 KHC 305]** ,this court has categorically observed that, unless there are serious discrepancies in assessing the disability in the certificate issued by a competent Doctor, the tribunal should not scale down the percentage of disability certified therein. In this case, going through the nature of injuries and the reasons which prompted the assessment of 9% physical disability, I do not find any justifiable reasons for scaling down the percentage as referred to above. Therefore, I am inclined to accept 9% as the percentage of disability of the appellant for the purpose of assessment of compensation. 8.2. The next aspect relates to the monthly income. The appellant was claimed to be a housewife and the Tribunal accepted the monthly income as Rs.3,000/-. The said assessment appears to be on the lower side, considering the fact that the accident M.A.C.A Nos.2120 and 2148 of 2013 7 occurred in the year 2005. It is to be noted that, in **Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co. Ltd [(2011) 13 SCC 236],** the Hon’ble Supreme Court pleased to take the monthly income of an ordinary employee without any skills as Rs.4,500/- for the year 2004, even in the absence of any evidence. Therefore, the monthly income for the year 2005, can be reasonably fixed as Rs.5,000/-. In **Gopinathan A. and others v. Afzal Basha and others [2020** **(3) KHC 666],** this Court has already clarified that, the monthly income of a housewife cannot be lesser than that of the labourer of an unauthorized sector. Therefore, the monthly income in this case is fixed as Rs.5,000/-. While reassessing the compensation with the above-revised criteria, the amount would come to Rs.86,400/- (5,000 x 12 x 16 x 9/100). The amount already awarded by the tribunal is Rs.28,800/- and thus the additional compensation would come to Rs.57,600/-. 8.3. Consequent to the revision of monthly income, the appellant would be entitled for additional compensation for loss of earnings. The tribunal has awarded compensation under this head for a period of four months at the rate of Rs.3000/- per month. The period fixed by the Tribunal appears to be reasonable and M.A.C.A Nos.2120 and 2148 of 2013 8 therefore an additional compensation of Rs.8000/- is awarded under this head. 8.4. The amount awarded by the tribunal towards pain and sufferings is Rs.16,000/- which appears to be on the lower side considering the serious nature of injuries and the treatment availed by her, both as inpatient and outpatient. Therefore, I deem it appropriate to grant a further sum of Rs.19,000/- under the said head. 8.5. The amount awarded towards loss of amenities was Rs.12,000/- which also appears to be on the lower side. It is evident from the records that, she sustained injuries and disability at the age of 31 years, and she has to live with that disability. Thus, the said disability would certainly affect the quality of her life and therefore a reasonable compensation has to be granted to her. In the facts and circumstances of the faces, I deem it appropriate to grant a further sum of Rs.13,000/- under the said head. Thus the additional compensation is determined as Rs.97,600/- [57,600 + 8,000+ 19,000+13,000]. ## **MACA No.2148/2013, which arises from OP (MV) No.2837/2005.** 9.1. This appeal is submitted by a minor child aged one and M.A.C.A Nos.2120 and 2148 of 2013 9 a half years at the time of the accident seeking compensation for the injuries sustained. It is evident from the records that, the injuries suffered by the child did not result in any physical disablement. The Tribunal awarded an amount of Rs.10,000/towards pain and suffering. Considering the period of the accident, and the nature of injuries sustained by the appellant, I deem it appropriate to grant a further sum of Rs.10,000/- towards pain and suffering. The amounts awarded by the Tribunal under the other heads are reasonable. 10. In the result, these appeals are allowed with the following findings. i) The award dated 10.01.2013 in O.P(M.V) No.2836/2005 passed by the Motor Accidents Claims Tribunal, Thrissur is hereby modified by granting an additional compensation of Rs.97,600/- (Rupees ninety seven thousand and six hundred) with interest as ordered by the Tribunal with proportionate costs. ii) The award dated 10.01.2013 in O.P(M.V) No.2837/2005 passed by the Motor Accidents Claims Tribunal, Thrissur. is hereby modified by granting an additional compensation of Rs.10,000/- (Rupees ten thousand only) with M.A.C.A Nos.2120 and 2148 of 2013 10 interest at the rate as ordered by the Tribunal and with proportionate cost. iii) The amounts as referred to above, shall be deposited by the 3[rd] respondent within a period of three months from the date of receipt of a copy of this judgment. iv) It is further ordered that, the claimants shall furnish the details of PAN card, Aadhar Card and Bank details to enable the insurance company to make the deposit as ordered above within a period of two months from the receipt of a copy of this judgment. In case, they fail to furnish the said details, it shall be open for the insurance company to deposit the said amount before the Tribunal. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk