MACA Nos. 2554 of 2012 & 2387 of 2012 (Thilakan v Ratheesh N.D. & Oriental Insurance Co. Ltd.; Sherly v Ratheesh N.D. & Oriental Insurance Co. Ltd.)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 ``` ## **`MACA NO. 2554 OF 2012`** ``` AGAINST THE AWARD DATED 17.04.2012 IN OP(MV) 921/2006 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA`** ## **`APPELLANT/PETITIONER:`** ``` THILAKAN S/O.SANKARAN, NIKARTHIL HOUSE, WARD NO.5, KUTHIYATHODE P.O., ALAPPUZHA DISTRICT. ``` ``` BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1RATHEESH N.D. S/O.DIVAKARA MENON, NANATTU HOUSE, WARD NO.8, KUMBALOM, PANANGAD P.O., ERNAKULAM DISTRICT. ``` ``` 2ORIENTAL INSURANCE CO.LTD. BRANCH OFFICE NO.1 DEEPTHI BUILDING, M.G.ROAD, ERNAKULAM ``` ``` BY ADVS. SRI.P.JAYASANKAR SMT.A.SREEKALA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.02.2024, ALONG WITH MACA.2387/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2554 OF 2012 & MACA NO. 2387 OF 2012 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 MACA NO. 2387 OF 2012 ``` ``` AGAINST THE AWARD DATED 17.04.2012 IN OP(MV) 922/2006 OF ``` ## **`MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA`** ## **`APPELLANT/PETITIONER:`** ``` SHERLY ``` ``` W/O.THILAKAN, NIKARTHIL HOUSE, WARD NO.5, KUTHIYATHODU P.O., ALAPPUZHA DISTRICT. ``` ``` BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1RATHEESH N.D. S/O.DIVAKARA MENON, NANATTU HOUSE, WARD NO.8, KUMBALOM, PANANGAD P.O., ERNAKULAM DISTRICT ``` ``` 2ORIENTAL INSURANCE CO.LTD. BRANCH OFFICE NO.1 DEEPTHI BUILDING, M.G.ROAD, ERNAKULAM ``` ``` BY ADVS. SRI.P.JAYASANKAR SMT.A.SREEKALA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.02.2024, ALONG WITH MACA.2554/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2554 OF 2012 & MACA NO. 2387 OF 2012 ``` ``` 3 ``` ## **`JUDGMENT`** ## **`[MACA Nos.2554/2012, 2387/2012]`** Both these appeals arise from a common award passed by the M.A.C.T., Alappuzha in O.P. (M.V.) Nos.921/2006 and 922/2006. The respective claimants have filed the claim petitions seeking compensation for the injuries sustained to them in a motor accident that occurred to them on 26.02.2006. 2. The accident occurred when the motorcycle ridden by the petitioner in O.P. (M.V.) Nos.921/2006 along with his wife, the petitioner in O.P. (M.V.) No.922/2006, was hit by a Tata Indica car bearing Registration No.KL-07/AK 1610, owned by the 1st respondent and insured with the 2nd respondent. Both the claimants sustained serious injuries. According to the appellant, the claimant in O.P. (M.V.) No.921/2006, he was 39 years old at the time of the accident and was working as a gas delivery man in a gas agency with a monthly income of Rs.5,000/-. He sustained physical disability consequent to the injuries. As regards the claimant in O.P. (M.V.) No.922/2006, it was contended that she ``` 4 ``` ## **`MACA NO. 2554 OF 2012 & MACA NO. 2387 OF 2012`** was a housewife aged 31 years. The monthly income claimed was Rs.3,000/-. She also suffered injuries. The said claim petitions were submitted in such circumstances. 3. The said claim petitions were contested by the 2nd respondent alone. In the written statement filed by the 2nd respondent, they admitted the insurance policy for the car, but they denied the negligence on the part of the driver of the car. They also disputed the quantum of compensation. 4. The evidence in these cases consists of oral testimony of PW1, and as documentary evidence, Exts.A1 to A19 were marked. After appreciating the materials placed on record, the Tribunal found that the accident occurred due to the negligence of the driver of the car. Being the insurer, the 2nd respondent was held liable to pay the compensation. In O.P. (M.V.) No.921/2006, an amount of Rs.1,04,070/- was granted as compensation, whereas in O.P. (M.V.) No.922/2006, the amount awarded as Rs.33919/-. The 2nd respondent was directed to deposit the said amounts with interest @ 7.5% per annum from the date of petition till realisation with proportionate costs. M.A.C.A. No.2554/2012 ``` 5 ``` ## **`MACA NO. 2554 OF 2012 & MACA NO. 2387 OF 2012`** was filed by the claimant in O.P. (M.V.) No.921/2006 whereas M.A.C.A. No.2387/2012 was filed by the claimant in O.P. (M.V.) No.922/2006. 5. The only dispute in these appeals relates to the quantum of compensation. The respective contentions of the parties are dealt with in the manner as follows: ## **- O.P.(M.V.) No.921/2006 M.A.C.A. No.2554/2012** 6. As mentioned above, the appellant in this case was 39 years old and was working as a gas delivery man in a gas agency with a monthly income of Rs.5,000/-. However, the Tribunal accepted the monthly income as Rs.3,000/- and calculated the compensation for physical disability, by accepting the percentage of disability as 10%, as certified in Ext.A1 disability certificate, which was proved by PW1. The first question to be considered is whether the monthly income fixed by the Tribunal is correct or not. The accident occurred in the year 2006. Of course, it is true that no evidence was adduced to substantiate the income. It is to be noted in this regard that, in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236],** the ``` 6 ``` ## **`MACA NO. 2554 OF 2012 & MACA NO. 2387 OF 2012`** Honourable Supreme Court was pleased to take the monthly income of an ordinary employee as Rs.4,500/- in respect of an accident occurred in the year 2004. Therefore, under no circumstances, Rs.5000/- claimed by the appellant, for an accident that occurred in the year 2006 could be treated as unreasonable. Therefore, the said monthly income has to be accepted. The learned counsel for the appellant further pointed out that, even though the appellant was 39 years old, the multiplier applied was 14, whereas the proper multiplier should have been 15. The said contention is to be accepted in the light of **Sarla Verma & Ors. v. Delhi Transport Corporation [(2009) 6 SCC 121].** Thus, while reassessing the compensation for disability, with the revised monthly income and multiplier, the amount comes to Rs.90,000/- (5,000 x 12 x 15 x 10/100). The amount already awarded by the Tribunal is Rs.50,400/- and thus, the additional compensation comes to Rs.39,600/-. 7. The next head to which the attention of this Court was brought by the learned counsel for the appellant, is the compensation for pain and suffering. The Tribunal awarded an ``` MACA NO. 2554 OF 2012 & MACA NO. 2387 OF 2012 ``` ``` 7 ``` amount of Rs.12,000/-. It is pointed out by the learned counsel for the appellant that, consequent to the accident, he suffered the following injuries: 1. Segmental fracture of Femur Ⓡ with fracture of Ⓡ patella. 2. A scalp-deep lacerated wound of 2x0.5 cm in size over the Ⓡ temporal region. 3. Deformity, pain and swelling around the middle 3rd of ® thigh. He had undergone inpatient treatment for a period of 12 days as well. It is evident from the records that even after the discharge, he continued the treatment, and the fact that the Tribunal granted compensation for loss of earnings for a period of four months itself indicates the prolonged treatment availed by him. Therefore, I am of the view that the amount of Rs.12,000/- appears to be inadequate and therefore, a further sum of Rs.13,000/- is awarded under the said head. 8. The next head which is to be taken into account is loss of amenities. No amount is awarded by the Tribunal under this head. It is a fact that the appellant sustained serious injuries and physical disability, which would certainly affect the quality of his life and the same has to be addressed by assessing ``` 8 ``` ## **`MACA NO. 2554 OF 2012 & MACA NO. 2387 OF 2012`** compensation. In such circumstances, a reasonable amount is to be awarded towards loss of amenities and inconvenience. In the facts and circumstances of the case, I deem it appropriate to fix it to Rs.20,000/-. 9. Consequent to the revision of monthly income, the appellant would be entitled to some additional amount under the head of loss of earnings as well. The Tribunal awarded compensation under this head for a period of four months and the said period appears to be reasonable. Therefore, a further sum of Rs.8,000/- is awarded. Accordingly, the total compensation is determined as Rs.80,600/- (39,600 + 13,000 + 20,000 + 8,000). **- O.P.(M.V.) No.922/2006 M.A.C.A. No.2387/2012** 10. This claim petition is submitted by the housewife aged 31 years, and the monthly income claimed was Rs.3,000/-. No disability certificate has been produced. From the documents produced also, the chances of disability are very low. The main contention raised by the learned counsel for the appellant is that, even though monthly income claimed was Rs.3000/-, the compensation has to be calculated on the basis of the principles ``` 9 ``` ## **`MACA NO. 2554 OF 2012 & MACA NO. 2387 OF 2012`** laid down by the Honourable Supreme Court **Ramachandrappa** **v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236], and Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735].** This contention is raised particularly in view of the fact that, housewife is a non-earning member of the family and the monthly income mentioned in the claim petition was only notional. Therefore, merely because of the fact that a lesser income was shown in the claim petition, she may not be denied the “just compensation” when the facts and circumstances of the case indicate the necessity of a higher monthly income. 11. I find force in the said contention. As rightly pointed out by the learned counsel for the appellant, as far as the housewife is concerned, her monthly income cannot be assessed with arithmetical precision. This is because, her service to the entire family cannot be evaluated in terms of money. However, since the compensation can be granted only in terms of money, for that limited purpose alone, an attempt is being made to assess her services in monetary terms. In **Gopinathan A. and others v.** ``` MACA NO. 2554 OF 2012 & MACA NO. 2387 OF 2012 ``` ``` 10 ``` **Afzal Basha and another [2020 (3) KHC 666]** this Court has already held that, while assessing the monthly income of a housewife, it cannot be lesser than the monthly income of persons engaged in other avocations. Therefore, as contended by the learned counsel for the appellant, the monthly income could be assessed by adopting the method of computation that evolved from the principles laid down in **Ramachandrappa (supra)** and **Syed Sadiq (supra)** . Thus, when monthly income is calculated in the light of the decisions referred to above, the said amount would come to Rs.5,500/- as the accident occurred in the year 2006. In such circumstances, I deem it appropriate to accept the said monthly income, even though the actual claim in this regard was lesser. 12. The impact of the revision of monthly income would only be on the compensation awarded under the head of loss of earnings. The Tribunal awarded compensation under this head for a period of three months and the said period appears to be reasonable. Therefore, the appellant would be entitled to a further sum of Rs.7,500/- under the said head. ``` MACA NO. 2554 OF 2012 & MACA NO. 2387 OF 2012 ``` ``` 11 ``` 13. The next head which requires consideration is pain and suffering. The injuries noted in the medical records are as follows: 1. Fracture mandible. 2. Pain, tenderness and swelling middle 3rd of (L) thumb. The appellant had undergone inpatient treatment for six days as well. Considering the nature of the injuries and the hospitalization, I deem it appropriate to grant a further sum of Rs.10,000/- under the head of pain and suffering. 14. No amount is seen granted towards the loss of amenities. Considering the nature of injuries and other relevant aspects, a notional amount ought to have been granted towards this head as well. Therefore, in the facts and circumstances of the case, I deem it appropriate to grant an amount of Rs.10,000/under this head. Thus, the total additional compensation to which the appellant is entitled to, is determined as Rs.27,500/-. In the result, both these appeals are allowed. The award dated 17.04.2012 passed by the Motor Accident Claims Tribunal, Alappuzha in O.P.(M.V.) No.921/2006 is modified by granting an ``` MACA NO. 2554 OF 2012 & MACA NO. 2387 OF 2012 ``` ``` 12 ``` additional compensation of Rs.80,600/- (Rupees eighty thousand and six hundred only), whereas the award passed in O.P.(M.V.) No.922/2006 by the Motor Accident Claims Tribunal, Alappuzha on the same day is modified by awarding a further sum of Rs.27,500/- (Rupees twenty seven thousand and five hundred only). The 2[nd] respondent in these claim petitions shall deposit the said amounts along with interest at the rate as ordered by the Tribunal and proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. It is further clarified that the claimants shall furnish the details of their PAN card, Aadhar Card and bank details to enable the Insurance Company to make the deposit as ordered above, within period of two months from the date of 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 amount before the Tribunal. **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** scs