Madhavi v. BaburaJ S/O.Raghavan Nambi ar, K.V. Davis, Prakashan.P.K, The New India Assurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 6[TH] DAY OF MARCH 2024 / 16TH PHALGUNA, 1945 ``` ``` MACA NO. 2030 OF 2013 ``` ``` AWARD DATED 14.03.2013 IN OPMV NO.698 OF 2009 OF MOTOR ACCIDENT ``` ## **`CLAIMS TRIBUNAL, VADAKARA`** ## **`APPELLANT/PETITIONER IN OP(MV):`** ``` MADHAVI AGED 48 YEARS W/O.RAYIRAN, VADAKKE PEROOKIL HOUSE, P.O.AVIDANALOOR, VIA NADUVANNUR, KOYILANDY TALUK, KOZHIKODE DISTRICT. ``` ``` BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN ``` ## **`RESPONDENTS/RESPONDENTS IN OP(MV):`** - **`1 BABURAJ S/O.RAGHAVAN NAMBIAR, AGE NOT KNOWN, 1/406, CHAPPOOR HOUSE, NANMINDA, KOZHIKODE-673 613.`** - **`2 K.V.DAVIS`** - **`S/O.VARKEY, AGE NOT KNOWN, KARUMATHIL HOUSE, INDIRA NAGAR, KALLACHI, VATAKARA, KOZHIKODE-673 506.`** - **`3 PRAKASHAN.P.K AGED 39 YEARS S/O.KRISHNANKUTTY KIDAVU, PILAVULLAKANDY HOUSE, P.O.KINALOOR, BALUSSERY, KOZHIKODE-673 612.`** - **`4 THE NEW INDIA ASSURANCE CO. LTD. TRIPURI BUILDINGS, EAST NADAKKAVU, CALICUT-673 011.`** ``` 2 ``` ## **`MACA NO. 2030 OF 2013`** ``` BY ADVS. SRI.JOHN JOSEPH VETTIKAD FOR R4 SRI.C.JOSEPH JOHNY ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2030 OF 2013 ``` ``` 3 ``` ## **`JUDGMENT`** The appellant was the petitioner in O.P.(M.V.) No.698/2009 on the files of the Motor Accidents Claims Tribunal, Vatakara. The said claim petition was submitted by her seeking compensation for the injuries sustained in a motor accident that occurred on 13.03.2009. The appellant was aged 45 years at the time of the accident and was working as a coolie with a monthly income of Rs.5,000/-. 2. According to the appellant, the accident occurred when she was hit by a motorcycle ridden by the 3rd respondent in a rash and negligent manner. The registered owner of the said motorcycle was the 1st respondent. The 2nd respondent was the person in whose name the policy for the said motorcycle was issued and the 4th respondent was the insurer of the same. According to the appellant, she sustained very serious injuries and it resulted in physical disablity as well. The compensation was claimed in such circumstances. 3. Respondents 1 and 3 filed written statements disputing the negligence on the part of the 3rd respondent. It was also ``` MACA NO. 2030 OF 2013 ``` ``` 4 ``` contended that the motorcycle was covered with a valid insurance policy issued by the 4th respondent and hence if at all there is any liability, that has to be indemnified by the said respondent. The 4th respondent filed a written statement and an additional written statement denying the negligence on the part of the 3rd respondent. However, they admitted the existence of a valid insurance policy for the motorcycle. They disputed the quantum of compensation also. 4. To substantiate the contentions, the appellant produced Exts.A1 A9 and no evidence was adduced by the respondents. After the trial, the Tribunal found that the accident occurred due to the negligence of the 3rd respondent in riding the motorcycle and being the insurer of the said vehicle, the 4th respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.1,10,269/- and the said amount was directed to be deposited with interest at the rate of 7.5% per annum from the date of petition till realisation with proportionate costs. This appeal is submitted by the appellant in such circumstances, being dissatisfied with the quantum of ``` MACA NO. 2030 OF 2013 ``` ``` 5 ``` compensation. 5. Heard Sri.K.M. Jamaludheen, learned counsel appearing for the appellant and Sri.John Joseph Vettikkad, learned counsel appearing for the 4th respondent. 6. The only question that arises for consideration is whether any enhancement of compensation as claimed in the appeal is to be awarded or not. When considering the materials placed on record on that perspective it can be seen that the monthly income taken by the Tribunal for assessing the compensation for disability was on the lower side. It is to be noted that even though a monthly income of Rs.5,000/- was claimed, the Tribunal accepted it as only Rs.3,500/-. The learned counsel for the appellant submits that, as per the method of computation on the basis of principles laid down in **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]** , the monthly income for the year 2009 should be Rs.7,000/- even in the absence of any evidence. Therefore, the learned counsel submits ``` MACA NO. 2030 OF 2013 ``` ``` 6 ``` that the said monthly income is to be accepted, even though the claim in this regard was Rs.5,000/-. The learned counsel appearing for the 4th respondent opposes the said contention by pointing out that, it is not necessary to take any higher amount than the monthly income claimed by the appellant. 7. However, it is to be noted that the appellant was a coolie whose income may not be static. It varies from month to month depending upon the work she gets on every month. Therefore, the mere fact that a slightly lower monthly income was shown in the claim petition should not preclude this Court from taking a higher monthly income than claimed, if the facts and circumstances of the case justify or warrant adoption of higher income. In this case, as rightly pointed out by the learned counsel for the appellant, when the method of computation in the light of **Ramachandrappa (supra) and Syed Sadiq (supra)** is adopted, the monthly income could be reasonably fixed as Rs.7,000/- for the year 2009. In **Minu Rout v. Satya Pradyumna Mohapatra [(2013) 10 SCC 695]** also the Honourable Supreme Court was pleased to take a higher monthly income than claimed in the claim ``` MACA NO. 2030 OF 2013 ``` ``` 7 ``` petition. Therefore, considering the necessity to ensure just compensation to the victim, I deem it appropriate to accept the monthly income as Rs.7,000/- even though the claim in this regard was Rs.5,000/-. 8. The next aspect relates to the percentage of disability. To substantiate the disability, Ext.A9 certificate issued by the Medical Board was relied on wherein it was certified as 23%. However, the Tribunal did not accept the same and instead, accepted 8% as the disability. Even though the learned counsel for the appellant challenged the same, on careful scrutiny of the records, I find the view adopted by the Tribunal as a probable one. This is particularly because the injuries revealed from the medical records are as follows: 1. Fracture (Rt) femur united S/C. 2. ORIF and DCP done. 3. Swelling over (Rt) knee. On going through the contents of Ext.A9 also it is very difficult to assume that the same pertains to the whole body disability. Apparently, the reference therein would suggest that the percentage of disability mentioned therein was with reference to a ``` MACA NO. 2030 OF 2013 ``` ``` 8 ``` particular limb. Therefore, the percentage of disability adopted by the Tribunal i.e., 8% was probable and I do not find any reason to interfere with the same. Thus, while reassessing the compensation for disability with the revised monthly income and keeping the other parameters adopted by the Tribunal intact, except the multiplier, as the proper multiplier according to the age of the appellant was 14, the amount of compensation would come to Rs.94,080/- (7,000 x 12 x 14 x 8/100). The amount already awarded by the Tribunal is Rs.50,400/- and thus the additional compensation comes to Rs.43,680/-. 9. The next head which requires consideration is loss of earnings. The Tribunal awarded an amount of Rs.10,000/- under the said head. It is discernible from the records that she suffered fracture of right femur and she had undergone inpatient treatment for 37 days. Considering the nature of injuries and her avocation as a coolie, I am of the view that, the said injuries might have prevented her from pursuing her employment at least for a period of four months. Therefore, compensation has to be granted for four months. Thus, the additional compensation under this head ``` MACA NO. 2030 OF 2013 ``` ``` 9 ``` would come to Rs.18,000/- (7,000x4-10,000). 10. The Tribunal awarded an amount of Rs.15,000/towards pain and suffering. It is evident from the records that she sustained serious injuries, consequent to which, she had undergone inpatient treatment for a period of 37 days. Therefore, the amount of Rs.15,000/- is not adequate and in the facts and circumstances of the case I deem it appropriate to grant a further sum of Rs.20,000/-. 11. The amount awarded by the Tribunal towards loss of amenities and enjoyment in life was Rs.10,000/-. It is to be noted that the appellant sustained serious injuries and it resulted in physical disability. She was aged 45 years and she had to live with that disability for the remainder of her life. Therefore, the said disability would certainly affect the quality of her life and hence, she should be compensated adequately for the said purpose. In the facts and circumstances of the case, I deem it appropriate to grant a further sum of Rs.20,000/- under the said head. Thus, the total additional compensation is determined as Rs.1,01,680/(43,680+18,000+20,000+20,000). ``` MACA NO. 2030 OF 2013 ``` ``` 10 ``` 12. In the result, this appeal is allowed. The award dated 14.03.2013 passed by the Motor Accidents Claims Tribunal, Vatakara in O.P.(M.V.) No.698/2009 is hereby modified by granting an additional compensation of Rs.1,01,680/- (Rupees one lakh one thousand six hundred and eighty only) and the said amount shall be deposited by the 4th respondent 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. However, it is clarified that, as the delay of 75 days in filing the appeal was condoned by this Court subject to the condition that in case any additional amount is awarded the appellant shall not be entitled to interest, the 4th respondent shall be at liberty to exclude the said period while computing the interest on the additional compensation. It is further clarified that the claimant shall furnish the details of the 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 date of receipt of a copy of this judgment. In case, she fails to furnish the said details, it shall be ``` MACA NO. 2030 OF 2013 ``` ``` 11 ``` open for the insurance company to deposit the said amount before the Tribunal. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs