MACA Nos. 657/2015, 669/2015 and 706/2015, High Court of Kerala, Ernakulam

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 21[ST] DAY OF MARCH 2023 / 30TH PHALGUNA, 1944 ``` ``` MACA NO. 657 OF 2015 ``` ``` AGAINST THE AWARD IN OPMV 96/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM ``` ## `APPELLANT/PETITIONERS:` ``` 1SHEEBA (MARY) AGED 41 YEARS W/O.LATE GEORGE, RESIDING AT PUNJEPADI HOUSE, ST. RAPHAEL ROAD, THIKOODAM, VYTTILA PO, COCHIN 19 2LEELA AGED 66 YEARS W/O.DEVASIA, MOOLAN HOUSE, -DO- -DO- BY ADVS. SRI.K.JANARDHANAN SRI.K.J.MANU RAJ ``` ## `RESPONDENT/3RD RESPONDENT:` ``` THE UNITED INDIA INSURANCE CO LTD ERNAKULAM COCHIN 682011 ``` ``` BY ADV P.K.MANOJ KUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.03.2023, ALONG WITH MACA.669/2015, 706/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 657, 669 and 706 OF 2015 ``` ``` 2 ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 21[ST] DAY OF MARCH 2023 / 30TH PHALGUNA, 1944 ``` ## `MACA NO. 669 OF 2015` ``` AGAINST THE AWARD IN OPMV 95/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM ``` ## `APPELLANT/PETITIONER:` ``` JINI M.D AGED 32 YEARS W/O.SHAJI, MOOLAN HOUSE, THURAVOOR, NOW RESIDING AT PUNCHEPADI HOUSE, ST.RAPHAEL ROAD, THAIKKODAM, VYTTILA P.O., COCHIN - 19. BY ADVS. SRI.K.JANARDHANAN SRI.K.J.MANU RAJ ``` ## `RESPONDENT/3RD RESPONDENT:` ``` THE UNITED INDIA INSURANCE CO. LTD ERNAKULAM, COCHIN - 682 011. BY ADV P.K.MANOJ KUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.03.2023, ALONG WITH MACA.657/2015 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 657, 669 and 706 OF 2015 ``` ``` 3 ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 21[ST] DAY OF MARCH 2023 / 30TH PHALGUNA, 1944 ``` ## `MACA NO. 706 OF 2015` ``` AGAINST THE AWARD IN OPMV 97/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM ``` ## `APPELLANT/PETITIONER:` ``` SHEEBA GEORGE (MARY) AGED 41 YEARS W/O.LATE GEORGE, PUNCHEPADI HOUSE, ST.RAPHAEL ROAD, THAIKOODAM, VYTTILA P.O., COCHIN 19, ERNAKULAM DISTRICT. BY ADVS. SRI.K.JANARDHANAN SRI.K.J.MANU RAJ ``` ## `RESPONDENT/3RD RESPONDENT:` ``` THE UNITED INDIA INSURANCE CO. LTD. ERNAKULAM - 682 011. ``` ``` BY ADV P.K.MANOJ KUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.03.2023, ALONG WITH MACA.657/2015 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 657, 669 and 706 OF 2015 ``` ``` 4 ``` ## `JUDGMENT` ``` I am considering the afore three appeals together since they emanate from the same accident and impugns the common Award of the Motor Accidents Claims Tribunal, Ernakulam ('Tribunal' for short). ``` ``` 2.The uncontested facts are to the effect ``` ``` that, on 04.11.2012, while Sri. George, Jini and ``` ``` Sheeba George, were riding on a motor cycle, the offending car hit them, driven in a rash and negligent manner. Consequently, Sri.George ``` ``` succumbed to the injuries; while Smt. Jini and Sheeba George survived with grave injuries. ``` ``` 3.I must record that the afore mentioned ``` ``` Smt.Sheeba, is the wife of deceased George and ``` ``` that she and her mother-in-law (mother of Late ``` ``` George) filed OP(MV) No.96/2013 before the ``` ``` MACA NO. 657, 669 and 706 OF 2015 ``` ``` 5 ``` ``` Tribunal seeking compensation of an amount of Rs.11,01,000/-, but which has been allowed only to a sum of Rs.8,01,052/-. ``` ``` 4.While so, Smt.Sheeba George filed ``` ``` OP(MV) No.97/2013 before the Tribunal, seeking ``` ``` compensation for her personal injury to the sum of Rs.4,42,000/-, but which has been awarded only Rs.2,32,500/-. ``` ``` 5.Finally, Smt.Jini, who is the sister of ``` ``` Late George, filed OP(MV) No. 95/2013 before the ``` ``` learned Tribunal, seeking compensation of an ``` ``` amount of Rs.4,72,000/-, but which has been ``` ``` awarded only to a sum of Rs.2,86,500/-. ``` ``` 6.The claimants in the Original Petitions ``` ``` have filed these appeals before this Court ``` ``` seeking enhancement of compensation awarded by the learned Tribunal. ``` ``` 7.I have heard Sri.K.J.Manu Raj – learned ``` ``` MACA NO. 657, 669 and 706 OF 2015 ``` ``` 6 ``` ``` counsel for the appellants in all these cases and Sri.P.K.Manoj Kumar – learned Standing Counsel for the Insurance Company. ``` ``` I propose to deal with each of the appeals ``` ``` separately as under: ``` ## `A. MACA 657/2015` ``` As I have said above, this appeal has been filed against the impugned Award of the learned Tribunal in OP(MV) No. 96/2013, filed by the legal heirs of deceased George. Their specific case was that he was earning Rs.8,000/- per ``` ``` month as “Construction Supervisor”; but when Smt.Sheeba George was examined as PW1, she ``` ``` claimed Rs.10,000/-. The learned Tribunal, ``` ``` thereupon, fixed the notional income of the ``` ``` deceased to be a mere Rs.4,000/- per month and ``` ``` then went on to compute the 'Loss of Dependency' on such basis. This is assailed arguing that if ``` ``` MACA NO. 657, 669 and 706 OF 2015 ``` ``` 7 ``` ``` the figure of Rs.8,000/- at least had been taken, the compensation would have been much higher. ``` ``` In response, Sri.P.K.Manoj Kumar – learned Standing Counsel for the Insurance Company, argued that the notional income adopted by the Tribunal in favour of the deceased is fair; while the compensation awarded under the heads 'Funeral ``` ``` Expenses' and 'Loss of Estate' is higher than what was permitted. He concluded saying that no amounts could have been granted under the heads 'Pain and Suffering' and compensation for 'Love and affection'; while an amount of Rs.1,00,000/- has been granted as 'Loss of Consortium', when only Rs.80,000/- could have been awarded. He thus ``` ``` prayed that this appeal be dismissed but modifying the Award to the afore extent. ``` ``` I have considered the afore rival submissions and have also gone through the evidence on record ``` ``` MACA NO. 657, 669 and 706 OF 2015 ``` ``` 8 ``` ``` – copies of which have been handed over across ``` ``` the Bar by the learned counsel for the parties, with the express consent that it can be acted upon by this Court without dispute. ``` ``` It is evident that the learned Tribunal has adopted the notional income of the deceased to be Rs.4,000/- without any particular basis, but because claim has been sought for Rs.8,000/-, ``` ``` while PW1 claimed it to be Rs.10,000/-. However, even if the Tribunal wanted to fix the notional figure, it ought to have proceeded by the ratio ``` ``` inRamachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], which mandates that, even in the case of a person with an unascertainable income, or who is working as a 'Coolie', in the year 2012 – when the accident occurred – the notional income to be adopted is Rs.8,000/-. This is all which has been ``` ``` MACA NO. 657, 669 and 706 OF 2015 ``` ``` 9 ``` ``` claimed; and am certainly of the view that the Tribunal ought to have adopted that figure. ``` ``` The notional income being so fixed, the same is eligible to be added with 25% towards 'Future Prospects', as perNational Insurance Company ``` ``` Ltd. v. Pranay Sethi [2017 (4) KLT 662]. ``` ``` That said, there is great force in the submission of Sri.P.K.Manoj Kumar, that no amounts could have been awarded under the heads 'Pain and Suffering' and 'Loss of Love and ``` ``` Affection', as per the ratio inUnited India Insurance Co.Ltd v. Satinder Kaur @ Satwinder Kaur [2020(3) KHC 760],when compensation for ``` ``` disability had been offered.Similarly, the compensation under the head 'Funeral Expenses' and 'Loss of Estate' could not have been more than Rs.15,000/- each, as per Pranay Sethi (supra). Finally, the compensation for 'Loss of ``` ``` MACA NO. 657, 669 and 706 OF 2015 ``` ``` 10 ``` ``` Consortium' will have to be confined to ``` ``` Rs.80,000/-, reckoning Rs.40,000/- each in favour of the appellants. ``` ``` Resultantly, this appeal is partly allowed in the following manner: ``` ``` a)The compensation under the head 'Loss of Dependency' is enhanced to Rs.10,40,000/- from Rs.4,16,052/-, reckoning the notional income of the deceased to be Rs.8,000/- per month, with 25% 'Future Prospects' added to it and one-third of the same reduced towards personal expenses as per Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802]. ``` ``` b)The compensation under the head 'Funeral Expenses' is reduced to Rs.15,000/-, from Rs.25,000/- now awarded by the Tribunal, ``` ``` following Pranay Sethi (supra). ``` ``` c)The compensation under the head 'Loss of ``` ``` MACA NO. 657, 669 and 706 OF 2015 ``` ``` 11 ``` ``` Estate' is reduced to Rs.15,000/-, from Rs.20,000/- now awarded by the Tribunal, following Pranay Sethi (supra). ``` ``` d)The compensation under the heads 'Pain and Suffering' and 'Love and Affection' is ``` ``` deleted, following Satinder Kaur (supra). ``` ``` e)The compensation under the head 'Loss of Consortium' is reduced to be Rs.80,000/- from Rs.1,00,000/-, in terms ofPranay Sethi ``` ``` (supra). ``` ``` In all other heads, the compensation awarded ``` ``` by the Tribunal remains unaltered. ``` ``` Consequently, the appellants would be ``` ``` entitled to recover the compensation, as enhanced ``` ``` by this Court, from the respondent – Insurance Company, along with interest at the rate of 8% from the date of filing of the claim until it is realised. The appellants will also be entitled to ``` ``` MACA NO. 657, 669 and 706 OF 2015 ``` ``` 12 ``` ``` proportionate costs on the enhanced amounts as ordered by the Tribunal. ``` ``` In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ``` **==> picture [180 x 13] intentionally omitted <==** ``` This appeal is filed by Smt.Sheeba George, impugning the Award of the learned Tribunal in OP(MV) No.97/2013, which was filed seeking ``` ``` compensation for her injuries, to a sum of Rs.4,42,000/-, but which has been allowed only Rs.2,32,500/-. ``` ``` Sri. Manu Raj – learned counsel for the ``` ``` appellant, argued that again the reason why the compensation has been fixed low by the Tribunal is because it has adopted the notional income to ``` ``` MACA NO. 657, 669 and 706 OF 2015 ``` ``` 13 ``` ``` be Rs.4,000/-, against the claim of Rs.5,500/-, ``` ``` since he was working as a 'Tailor'. He argued ``` ``` that when her avocation has not been disputed, the learned Tribunal could not have reduced the income to Rs.4,000/-, as has been done; particularly when her income is liable to be reckoned more than what is authorized by ``` ``` Ramachandrappa (supra). ``` ``` He then pointed out that his client has suffered 12% Permanent Disability, as recorded in Ext.C1 certificate issued by the District ``` ``` Medical Board, Ernakulam; but that, in spite of ``` ``` this, the learned Tribunal has awarded her only a ``` ``` consolidated amount of Rs.50,000/- towards ``` ``` disability. He argued that she is still suffering from problems associated with the injuries and therefore, that she ought to have been granted compensation for 'Future Treatment' and 'Loss of ``` ``` MACA NO. 657, 669 and 706 OF 2015 ``` ``` 14 ``` ``` Amenities', which has been now denied. He thus prayed that this appeal be allowed. ``` ``` Sri.P.K.Manoj Kumar – learned Standing ``` ``` Counsel for the Insurance Company, on the other hand, submitted that the avocation of the ``` ``` appellant has not been admitted and that there is ``` ``` nothing to show that she was a 'Tailor'. He ``` ``` continued that, therefore, fixing of the notional ``` ``` income to be Rs.5,000/- per month by the Tribunal ``` ``` is without error, adding that it has awarded ``` ``` reasonable sums to her under the other heads. He ``` ``` thus prayed that this appeal be dismissed. ``` ``` When I evaluate the afore submissions, ``` ``` assessing them against the evidence on record, ``` ``` it is without doubt that the appellant had ``` ``` testified as PW1 that she is a 'Tailor' and that ``` ``` she was earning Rs.5,500/- per month. This ``` ``` deposition has remained unimpeached; and, in any ``` ``` MACA NO. 657, 669 and 706 OF 2015 ``` ``` 15 ``` ``` event, going by Ramachandrappa(surpa) in the case of a person with an unascertainable income, or who is working as a 'Coolie', in the year 2012 – when the accident occurred – the notional figure to be adopted is Rs.8,500/-. Since the appellant had only claimed Rs.5,500/-, I see no reason why the Tribunal could not have adopted it. ``` ``` That said, Ext.C1 indubitably records that appellant is suffering from 12% permanent disability. When the learned Tribunal did not ``` ``` find any reason to disregard the same, it ought to have then computed the compensation for disability as per the accepted statutory scheme; ``` ``` but still granted only a consolidated figure. ``` ``` That being said, the injuries sustained by the appellant are available from Ext.A19 – Wound Certificate and Ext.A21 – Discharge Summary as ``` ``` MACA NO. 657, 669 and 706 OF 2015 ``` ``` 16 ``` ``` being :“closed comminuted fracture shaft femur right side, closed fracture shaft tibia right side and closed displaced distal end ulna fracture along with lacerated wound on right knee and right leg” (sic). These injuries are not trivial and the appellant being a lady - who had lost her husband in the accident - must have gone through extreme trauma and pain during the period of her treatment. I, therefore, propose the compensation for “Pain and Suffering” to be enhanced to the figure claimed, namely Rs.50,000/-; while, taking note of the fact thatshehadsuffered17daysof ``` ``` hospitalisation, the compensation under the head “Extra Nourishment” and “Attender Charges” is deserving to be revised at the rate of Rs.200/- and Rs.300/- respectively per day. ``` ``` In addition, this Court is of the firm view ``` ``` MACA NO. 657, 669 and 706 OF 2015 ``` ``` 17 ``` ``` that, taking note of the injuries sustained by the appellant, she is entitled to some amount under the head “Loss of Amenities” also, which I propose to be Rs.20,000/-. ``` ``` Resultantly, this appeal is partly allowed ``` ``` in the following manner: ``` ``` a)The compensation under the head “PermanentDisability”isenhancedto ``` ``` Rs.1,18,800/-, reckoning the notional income of the appellant to be Rs.5,500/- per month and the percentile of disability being taken as 12% as per Ext.C1. The multiplier adopted is ‘15’ being guided by Sarla Verma (supra). ``` ``` b)The compensation under the head “Extra Nourishment” is enhanced to Rs.3,400/-, ``` ``` reckoning the per deim expenses for the same to be Rs.200/- for 17 days of hospitalization. ``` ``` c)The compensation under the head ``` ``` MACA NO. 657, 669 and 706 OF 2015 ``` ``` 18 ``` ``` “Attender Expenses” is enhanced to Rs.5,100/-, ``` ``` reckoning Rs.300/- per day as the expenses for ``` ``` the same, for 17 days of hospitalization. ``` ``` d)Thecompensationfor“Painand ``` ``` Sufferings” is enhanced to Rs.50,000/-, from ``` ``` Rs.40,000/- as has been awarded by the learned Tribunal. ``` ``` e)An additional amount of Rs.20,000/- is awarded under the head “Loss of Amenities”. ``` ``` In all other heads, the compensation awarded ``` ``` by the Tribunal and its findings will remain unaltered. ``` ``` Consequently, the appellant will be entitled to recover the compensation, as enhanced by this Court, from the respondent – Insurance Company, along with interest at the rate of 8% from the date of filing of the claim until it is realised. ``` ``` MACA NO. 657, 669 and 706 OF 2015 ``` **==> picture [13 x 7] intentionally omitted <==** ``` In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ``` ## `C. MACA No.669/2015` ``` This appeal has been filed by Smt.Jini M.D, who is the sister of deceased George and the sister in law of Smt.Sheeba George. She had claimed an amount of Rs.4,72,000/- towards compensation for her injuries, but which has been allowed by the learned Tribunal to a sum of only Rs.2,86,500/-. She claimed that she is a “Cabin Cleaner” at Cochin Airport and that her monthly income is Rs.6,000/-. This was sought to be proved through Ext.A18 – Pay Slip, issued by a private company, spoken to by PW1, which ``` ``` MACA NO. 657, 669 and 706 OF 2015 ``` ``` 20 ``` ``` records her monthly salary to be Rs.5,200/-, along with Dearness Allowance of Rs.3,000/- and other perquisites of Rs.2,660/-. ``` ``` The learned Tribunal, however, did not reckon the appellant’s income or notional income, but went on to Award amounts under the head “Loss of Earnings” as prayed for and consolidated amount of Rs.50,000/-, again as prayed for towards disability. The appellant argues that this was inadequate because her notional income ought to have been reckoned as being at least Rs.6,000/-, since she suffers from 12% disability, as is certified by Ext.C1 report of the District Medical Board, Ernakulam; and consequently, that the compensation for Disability ought to have been computed on such basis. She thus prayed that this appeal be allowed. ``` ``` MACA NO. 657, 669 and 706 OF 2015 ``` ``` 21 ``` ``` Sri.Manuraj.K.J – learned counsel for the ``` ``` appellant, further pointed out that his client was carrying a child at the time of the accident ``` ``` and lost it consequently, but that the learned Tribunal has awarded only Rs.1,00,000/- towards ``` ``` the trauma associated with such. He predicated that the compensation awarded by the learned Tribunal under the heads “Pain and Suffering” and denying it for “Loss of Amenities” is unfair and unjust. He thus reiteratingly prayed that the compensation awarded by the Tribunal be substantially enhanced. ``` ``` I have evaluated the dialectical positions ``` ``` of the parties, on the basis of the evidence made available across the Bar by them. ``` ``` The fact that appellant was carrying a baby and that she lost it, is without dispute; so also the cause of the accident and the injury ``` ``` MACA NO. 657, 669 and 706 OF 2015 ``` ``` 22 ``` ``` sustained by her. ``` ``` The appellant claimed Rs.6,000/- as her income and sought to prove it through Ext.A18, ``` ``` but which has been not accepted by the Tribunal, perhaps because it was issued by a private ``` ``` limited company and not spoken to by the person ``` ``` who issued it. However, as perRamachandrappa ``` ``` (supra) as I have already said above, the notional income to be adopted in such a case would be a minimum of Rs.8,500/- per month and hence the claim of Rs.6,000/- ought to have been ``` ``` acceded to. Since Ext.C1 Medical Board ``` ``` Certificate records her permanent disability to ``` ``` be 12% and which is undisputed, the learned ``` ``` Tribunal ought to have granted compensation for ``` ``` “Permanent Disability” reckoning these two ``` ``` figures. Since this has not been done, ``` ``` certainly, this appeal is entitled to succeed. ``` ## `MACA NO. 657, 669 and 706 OF 2015` ``` 23 ``` ``` That said, I find great force in the submissionofSri.K.J.Manurajthatthe compensation awarded by the Tribunal under the head “Pain and Suffering” and “Demise of Baby” must be enhanced at least to the extent claimed; while some amount will have to be offered for “Loss of Amenities”. The medical evidence on record, namely Ext.A14 – Wound Certificate, read along with Exts.A15 and A16 Discharge Summaries establish that the appellant had suffered; “segmental fracture right femur with cut lacerated wound on right knee and leg and fracture on medial condyle left tibia with ``` ``` intraarticular extension”(sic). In fact, ``` ``` Ext.A16 affirms that she was pregnant, with 24 weeks of gestation, and that she sustained fracture on her nasal bone also. These injuries and the trauma associated with loss of baby can ``` ``` MACA NO. 657, 669 and 706 OF 2015 ``` **==> picture [13 x 7] intentionally omitted <==** ``` never be understated; and hence I am persuaded to enhance the compensation, as I have indicated above. ``` ``` Resultantly, this appeal is partly allowed ``` ``` in the following manner: ``` **==> picture [404 x 14] intentionally omitted <==** ``` “PermanentDisability”isenhancedto ``` ``` Rs.1,38,240/-, reckoning the notional income of the appellant to be Rs.6,000/- per month and her percentile of disability to be 12%, as certified in Ext.C1. ``` **==> picture [404 x 14] intentionally omitted <==** ``` Suffering” is enhanced to Rs.50,000/- as claimed ``` ``` for. ``` - `(c) The compensation under the head “Demise` ``` of Baby and surgical removal” is enhanced to Rs.1,50,000/- as claimed for. ``` **==> picture [404 x 13] intentionally omitted <==** ``` MACA NO. 657, 669 and 706 OF 2015 ``` ``` 25 ``` ``` awarded under the head “Loss of Amenities”, taking note of the grave injuries sustained by the appellant, particularly the fracture of her femur, left tibia as also nasal bone. ``` ``` In all other heads, the compensation awarded by the Tribunal and its findings will remain unaltered. ``` ``` Consequently, the appellant will be entitled ``` ``` to recover the compensation, as enhanced by this Court, from the respondent – Insurance Company, along with interest at the rate of 8% from the ``` ``` date of filing of the claim until it is realised. ``` ``` The appellant will also be entitled to ``` ``` proportionate costs on the enhanced amounts as ordered by the Tribunal. ``` ``` In view of the afore, the amount as fixed ``` ``` above shall be deposited by the Insurance Company before the learned Tribunal, within a ``` ``` MACA NO. 657, 669 and 706 OF 2015 ``` ``` 26 ``` ``` period of two months from the date of receipt of a copy of this judgment. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` lsn/SAS ```