MACA.No. 771 of 2008

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **WEDNESDAY, THE 10TH DAY OF FEBRUARY 2016/21ST MAGHA, 1937** ## **MACA.No. 771 of 2008 ( )** **------------------------AGAINST THE AWARD IN OPMV 1052/2003 of MACT, PALA DATED 18-01-2007** ## **APPELLANT/PETITIONER:** **-----------------------------------------** **1. AMMINI N.E., W/O.BHASKARAN, PUNCHANIRAPPEL HOUSE, VALAVOOR KARA & VALLICHIRA VILLAGE, KOTTAYAM (DT). * DIED** ## ***ADDL. APPELLANTS IMPLEADED:** **2. BHASKARAN M.R., S/O.RAGHAVAN, R/AT PUNCHANIRAPPEL HOUSE, VALAVOOR KARA & VALLICHIRA VILLAGE.** **3. SHEENA P.B., D/O.BHASKARAN M.R., R/AT PUNCHANIRAPPEL HOUSE, VALAVOOR KARA & VALLICHIRA VILLAGE.** **4. SHIBU P.B., S/O.BHASKARAN M.R., R/AT PUNCHANIRAPPEL HOUSE, VALAVOOR KARA & VALLICHIRA VILLAGE.** **5. SHEEJA P.B., D/O.BHASKARAN M.R., R/AT PUNCHANIRAPPEL HOUSE, VALAVOOR KARA & VALLICHIRA VILLAGE.** **6. SHIJU P.B., S/O.BHASKARAN M.R., R/AT PUNCHANIRAPPEL HOUSE, VALAVOOR KARA & VALLICHIRA VILLAGE.** ***ADDL. APPELLANTS ARE IMPLEADED AS ADDL. APPELLANTS 2 TO 6 AS PER ORDER DATED 11.8.2015 IN IA NO.2507/2015 IN MACA 771/2008.** **BY ADVS.SMT.A.K.RANI SRI.SHIJU VARGHESE** ## **MACA.No. 771 of 2008** ## **RESPONDENTS:** **----------------------------** ## **1. VINIL DAS, S/O.SUDHEER DAS,** - **MUKKADAYIL HOUSE, KODUNGALLOOR KARA EDAVILAKKU VILLAGE, EDAVILAKKU (PO), TRICHUR (DT).** ## **2. C.M.KRISHNAKUMAR,** - **CHEMPANEZHATH HOUSE, KODUNGALLOOR P.O., TRICHUR (DT).** **3. NATIONAL INSURANCE CO.LTD., BRANCH OFFICE, PB NO.25, MUNICIPAL SHOPPING COMPLEX, MAIN ROAD, NORTH PARAVUR.** ## **R3 BY ADV. SMT.SARAH SALVY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **VPV** ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= M.A.C.A.No.771 of 2008** ## **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 10[th] day of February, 2016** ## **JUDGMENT** ## _**K.Ramakrishnan, J.**_ The claimant in O.P.(M.V.)No.1052 of 2003 on the file of the Motor Accidents Claims Tribunal, Pala is the appellant herein. The appellant filed the claim petition claiming compensation for the personal injuries sustained by her in a motor vehicle accident involving a jeep with No.KL-11/A-7419 and a tempo van with No.KL-8/F-3378 while she was travelling in the jeep. According to the claimant, the accident occurred due to the rash and negligent driving of the tempo van driven by the first respondent, owned by the second respondent and insured by the third respondent. According to her she was a construction worker getting a monthly income of Rs.3,000/- and on account of the injury sustained, her right leg was amputated and she suffered permanent disability. So, she claimed a total compensation of Rs.5,00,000/- under various heads. 2. Respondents 1 and 2 appeared and filed counter contending that the accident occurred due to the negligence of the driver of the jeep in which she was travelling and there was no negligence on the part of the driver of the tempo van. They further contended that the ## **M.A.C.A.No.771 of 2008** ## **-:2:-** amounts claimed under various heads are high and the income and occupation of the petitioner has to be proved by her. They also contended that the vehicle was insured with the third respondent. They prayed for dismissal of the application. 3. The third respondent filed a counter admitting the insurance but denying the allegations of negligence, occupation, income, etc., claimed by the petitioner. They also contended that the vehicle was not having fitness certificate at the time of the accident and thereby, there is violation of the policy condition and they are not liable to pay any amount as compensation. They also prayed for dismissal of the petition. 4. After considering the evidence on record, the court below found that the accident occurred due to the negligent driving of the tempo van by the first respondent and awarded a compensation of Rs.2,49,950/- under various heads as follows: ## **Schedule** |**Part I**|**Rs.**| |---|---| |Medical expenses|4,700/-| |Loss of earnings|8,000/-| |Bystander expenses|4,500/-| |Extra-nourishment|500/-| |Damages to clothing|250/-| |Transport to Hospital|2,000/-| ## **M.A.C.A.No.771 of 2008** ## **-:3:-** ## **Part II** |Pain and suffering|25,000/-| |---|---| |Permanent partial disability<br>resulting in loss of earning<br>capacity|1,80,000/-| |Loss of amenities|25,000/-| |Total|2,49,950/-| 5. Since the second respondent did not produce the fitness certificate, the Tribunal had drawn adverse inference and held that the vehicle was not having fitness certificate and there is violation of policy condition and directed the insurance company to pay the amount and was given the right to recover the amount from the second respondent, the owner of the vehicle under section 149(4) of the Motor Vehicles Act, 1988. Aggrieved by the insufficiency of quantum of compensation awarded, the claimant filed this appeal. 6. During the pendency of the appeal, the appellant died and her legal representatives were impleaded as additional appellants 2 to 6 as per order in I.A.No.2507 of 2015. 7. Heard Sri.Shiju Varghese, learned counsel appearing for the appellants and Smt.Sarah Salvy, learned counsel appearing for the third respondent. Respondents 1 and 2 did not appear. 8. Learned counsel appearing for the appellants submitted that the court below was not justified in taking the income as Rs.2,000/- ## **M.A.C.A.No.771 of 2008** ## **-:4:-** per month, as a construction worker will be getting more income and the petitioner had only claimed Rs.3,000/- per month, which is reasonable and that should not have been reduced to Rs.2,000/- by the court below. Further, she suffered amputation and the amounts awarded under the head pain and suffering, loss of amenities in life, etc., are also less. So according to him, the claimant is entitled to get enhanced compensation on all heads. 9. On the other hand, the learned counsel appearing for the insurance company submitted that the court below had considered all the aspects in the right perspective and awarded just and fair compensation and there is no necessity to enhance the amount. 10. The case of the claimant in the claim petition was that she was a construction worker and getting Rs.3,000/- per month. Since no document has been produced on the side of the claimant to prove her employment, the court below had fixed the monthly income of the claimant as Rs.2,000/- per month. In the decision reported in **Ramachandrappa v. The Manager, Royal Sundaram Aliance Insurance Company Limited** (AIR 2011 SC 2951) the Honourable Supreme Court has held that the court cannot expect a person working as a coolie to produce documentary evidence to substantiate his claim. In that case he was also a coolie worker claimed to have getting ## **M.A.C.A.No.771 of 2008** ## **-:5:-** Rs.4,500/- per month and the appellate court had, considering the year of accident, taken that amount as his monthly income. In this case, the petitioner had claimed only Rs.3,000/- per month as her monthly income which we feel reasonable and the court below should not have reduced the same to Rs.2,000/- for the purpose of assessing compensation. So we refix the monthly income of the petitioner as Rs.3,000/- for the purpose of assessing compensation. 11. Learned counsel for the insurance company submitted that the court below was not justified in taking the multiplier as 15. As per the decision in **Sarla Verma and Others v. Delhi Transport Corporation and Another** [(2009) 6 SCC 121] it will come only 14. As per **Sarla Verma** 's case the multiplier to be taken for the age group of 41 to 45 is 14. So the court below was not justified in taking 15 as multiplier and we are taking 14 as multiplier. If a recalculation is made on the basis of the income fixed by this court and the multiplier fixed, the claimant will be entitled to get a compensation of Rs.2,52,000/- (Rs.3,000 x 12 x 50% x 14) instead of Rs.1,80,000/awarded by the court below and thereby, the petitioner is entitled to Rs.72,000/- as enhanced compensation under that head and we award this amount under that head. 12. The court below has awarded only Rs.25,000/- as loss of ## **M.A.C.A.No.771 of 2008** ## **-:6:-** amenities in life. It is true that same yardstick should not be taken for the purpose of assessing compensation under the head loss of earning capacity and also for awarding compensation under the head loss of amenities in life. Both will have to be taken in a different angle. Further even if the compensation is awarded under the head loss of earning capacity, reasonable amount has to be awarded under the head loss of amenities in life considering the **injuries sustained and disability caused** . In this case, the petitioner, who is a lady of 45 years at the time of accident, suffered 50% disability on account of amputation of her right leg below knee. Even if she is a housewife she will be finding it difficult to carry on her day-to-day affairs with this disability. She will have to be with this difficulties for the remaining period of her life. So considering the aspect, we feel that an amount of Rs.1,00,000/- can be fixed as compensation under the head loss of amenities in life instead of Rs.25,000/- awarded by the court below and thereby, we award an additional amount of Rs.75,000/- under that head. 13. The court below had taken only four months for the purpose of assessing compensation under the head loss of earnings. Considering the nature of injuries sustained, the period of treatment and also considering the fact that the court has felt that the assistance ## **M.A.C.A.No.771 of 2008** ## **-:7:-** of a bystander will be required even in the house for a period of three months, we feel that 9 months can be taken for the purpose of assessing compensation under the head loss of earnings during the period of treatment and thereby, the petitioner will be entitled to get Rs.27,000/- under that head instead of Rs.8,000/- awarded by the court below and thereby, she will be entitled to get an additional amount of Rs.19,000/- under that head and we award this amount under that head. 14. The court below had awarded only Rs.25,000/- as compensation under the head pain and suffering. Considering the nature of the injury sustained, we feel that it is very low and that is enhanced to Rs.50,000/- and thereby, she will be entitled to get Rs.25,000/- more under the head pain and suffering as additional compensation. Under the other heads, the court below had awarded just and proper compensation and we do not find any reason to interfere with the same. 15. In all, the appellants will be entitled to get an additional compensation of Rs.1,91,000/-, which the third respondent is liable to pay with 9% interest from the date of petition till payment. Three months time is granted to the insurance company to deposit the said amount and the third respondent is entitled to recover the amount so ## **M.A.C.A.No.771 of 2008** ## **-:8:-** paid from the second respondent, insured, as he had committed violation of policy condition under section 149(4) of the Motor Vehicles Act, 1988. With the above modification of the award passed by the court below, the appeal is allowed in part accordingly. The amount awarded can be shared by the additional appellants equally. Sd/- ## **P.N.RAVINDRAN JUDGE** Sd/- ## **K.RAMAKRISHNAN JUDGE** **/true copy/** **P.A. to Judge** **vpv**