Mamatha R Shetty v Abdul Nazir, Abdulla A.P., and Cholamandalam M.S. General Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 6[TH] DAY OF JULY 2021 / 15TH ASHADHA, 1943** **MACA NO. 1613 OF 2018** **AGAINST THE AWARD DATED 26.3.2018 IN OPMV 399/2016 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARGOD** ## **APPELLANT/PETITIONER:** MAMATHA R SHETTY AGED 38 YEARS W/O. RAMESH V SHETTY, R/AT OPATHIMOOLE HOUSE, KAYYAR, JODKALLU, KASARAGOD DISTRICT. BY ADV SRI.RAJAN P.KALIYATH ## **RESPONDENTS/RESPONDENTS:** 1 ABDUL NAZIR AGED 22 YEARS S/O. MOHAMMED, R/AT ERDUNGAL HOUSE, POST ANGADIMOGAR VIA., KUMBALA, MANJESHWAR TALUK, KASARAGOD DISTRICT, PIN-671321. 2 ABDULLA A.P. AGED 37 YEARS S/O. AZEEZ, R/AT PONNAMGALA HOUSE, PUTHIGE POST, KASARAGOD DISTRICT, PIN-671321. 3 MS. CHOLAMANDALAM M.S. GENERAL INSURANCE COMPANY LTD. DARE HOUSE, 2ND FLOOR, NO.2, NSC BOSE ROAD, CHENNAI-600001. REP. BY THE MANAGER BY ADV P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _M.A.C.A No.1613 of 2018 2_ ## _**A.BADHARUDEEN, J**_ **.** ---------------------------------------M.A.C.A No.1613 of 2018 --------------------------------------------- _Dated this the 6[th] day of July, 2021_ ## _**J U D G M E N T**_ The petitioner in O.P(MV).No.399 of 2016 on the file of the M.A.C.T, Kasaragod is assailing award dated 26.3.2018 alleging insufficiency in the compensation awarded by the Tribunal. Respondents herein are the original respondents before the Tribunal. 2. Brief facts of the case: Petitioner was injured when the autorickshaw, in which she along with one Dhanalakshmi was travelling, capsized on the road at Thalipadapu at about 5.20 a.m on 18.1.2016. According to her, the driver of the vehicle deflected it to the left of the road in a rather sudden manner and lost control in the process. She alleged that it was a rash and negligent act on the part of the said driver. Respondents who faced their claims for compensation are the driver, owner and insurer of the offending vehicle. 3. Heard the learned counsel for the appellant/petitioner as well as the learned counsel for the insurance company. 4. The learned counsel for the appellant/original petitioner M.A.C.A.No.1613 of 2018 3 canvassed increase in the award passed by the Tribunal under various heads highlighting insufficiency. He submitted further that though the petitioner, who was aged 32 at the time of accident doing Tailor job, claimed Rs.15,000/- as monthly income, but the Tribunal assessed the same as Rs.6,000/- per month and the same is inadequate. Referring to the decisions in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.**_ [(2011) 13 SCC 236] and _**Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd.**_ [(2014) 2 SCC 735] it is submitted that if the ratio is applied to the facts of the case, Rs.12,000/- ought to be the income fixed by the Tribunal and therefore the said income is liable to be fixed. Per contra, the learned counsel for the insurance company opposed the claim and submitted that the ratio of the decision referred above would apply in cases where the injured must have some employment at the time of accident. 5. While crystallizing the dispute as to whether the income ought to be fixed by the Tribunal, I have no hesitation to hold that going by the decisions in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.**_ ( _supra_ ) and _**Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd.**_ ( _supra_ ), Rs.4,500 must be the monthly M.A.C.A.No.1613 of 2018 4 income of a coolie in 2004 and by adding Rs.500/- each per annum, the learned counsel for the petitioner is correct in claiming Rs.12,000/- as the monthly income. Therefore, I fix the monthly income for the purpose of assessing loss of earning as Rs.12,000/- per month. 6. Another grievance advanced by the learned counsel for the appellant is that though medical expense amounting to Rs.2,09,071.90 was claimed as per Ext.A5 series, the Tribunal granted only Rs.75,000/- on the above head. The further contention advanced by the learned counsel for the appellant is that even though Rs.1,00,000/- was claimed under the head `future treatment', the Tribunal denied the same on flimsy grounds. It is further submitted that in order to clarify the claim under the head `medical bills' a consolidated bill issued from Unity Hospital during the inpatient treatment from 18.1.2016 to 5.2.2016 was produced before this Court to give comprehensive understanding as regards to medical bills produced in original as Ext.A5 series. 7. The learned counsel for the insurance company disputed the claim under Ext.A5 series supported by the consolidated statement produced. On perusal of the medical bills in original marked as Ext.A5 series, wherein also the claim is, in fact for Rs.2,09,071.90. Going by the M.A.C.A.No.1613 of 2018 5 award it could be seen that the Tribunal granted only Rs.75,000/- as consolidated sum of Rs.73,465/- alone on the finding that the same found to be admissible amount on verification. But the Tribunal has not stated reasons for rejecting other bills with certainty. Going by Ext.A5 series itself it could be noticed that the claim raised by the petitioner under the head medical expenses is for the period of inpatient treatment and the Tribunal is not justified in repelling the said claim. As such, the same is liable to be granted. In view of the matter, I am inclined to grant **Rs.1,37,903/-** as additional amount towards the medical expenses. 8. While recalculating the loss of earning @ Rs.12,000/- per month, **Rs.36,000/-** more is liable to be granted under the head loss of earning. 9. The learned counsel for the appellant/petitioner submitted that no amount under the head `extra nourishment' was granted by the Tribunal. This submission appears to be correct. The learned counsel for the insurance company not opposed in granting a reasonable amount under the head `extra nourishment'. 10. Here evidently the petitioner sustained fracture of second, third, fourth, fifth, sixth, seventh and eighth ribs on left side with hemothorax, lac- M.A.C.A.No.1613 of 2018 6 eration of spleen with hemoperitoneum and contusion of left colon with serosal tears and multiple abraded contusion over the left side of chest and abdomen, as seen narrated in para.7 of the award based on Ext.A2 wound certificate. 11. It is fairly submitted by the learned counsel for the appellant/petitioner that no disability was assessed in relation to the petitioner despite reference of the petitioner from this Court to assess the disability. Therefore, no claim under this head is canvassed. The learned counsel for the appellant submitted that award granted under the head pain and suffering in a case of serious injuries is insufficient. The learned counsel canvassed increase of Rs.25,000/- more in addition to Rs.25,000/- granted by the Tribunal. 12. The learned counsel for the insurance company fairly submitted that only Rs.25,000/- is the amount claimed under the head pain and suffering. Therefore, the Tribunal is justified in granting the same as such. Be it so, no additional amount under this head is liable to be granted. 13. While granting compensation under the Motor Vehicles Act, a social welfare legislation, just compensation is the principle to be followed. It is settled that the Tribunal is competent to grant just compensation M.A.C.A.No.1613 of 2018 7 even in excess of what has been claimed. Decision of the Apex Court reported in _**Oriental Insurance Company Ltd. v. Mohd. Nasir**_ and another [2009 ACJ 2742] and _**Nagappa v. Gurudayal Singh**_ [2003 ACJ 12 (SC)] are relied on. Ratio of the decision reported in _**National Insurance Company Ltd. v. Pranay Sethi & Ors.**_ 2017 16 SCC 650 is also followed. Considering the prolonged treatment and serious injuries sustained, I am inclined to increase **Rs.15,000/more** under the head **pain and suffering** . 14. Rs.50,000/- was granted under the head loss of amenities and the learned counsel for the petitioner considered the prays for grant of Rs.15,000/- more taking note of the particular nature of this case. The learned counsel for the insurance company submitted that Rs.50,000/- was granted by the Tribunal though no such claim was raised by the petitioner. The learned counsel for the insurance company is right in submitting that no amount under the head **loss of amenities** was claimed by the petitioner. However, the Tribunal granted Rs.50,000/- under this head in a case where no disability was assessed. I have already extracted the principle regarding grant of just compensation above. Therefore, there is no bar to grant just compensation under a particular head even if there was omission to claim it specifically, if found entitled. Though Rs.25,000/- more is claimed by the M.A.C.A.No.1613 of 2018 8 learned counsel for the petitioner, I am inclined to increase the same by **Rs.10,000/- more** . As far as the claim towards `future treatment' is concerned, the Tribunal rightly disallowed the same for want of evidence. I en- dorse the said finding. 15. Therefore, the award is modified as follows: |**Sl.**<br>**No.**|**Head of claim**|**Amount awarded**|**Modified award**<br>**amount1**| |---|---|---|---| |1|Loss of earnings|Rs. 36,000.00|Rs. 72,000.00| |2|Transport to hospital|Rs. 2,000.00|Rs. 2,000.00| |3|Damage to clothing and articles|Rs. 500.00|Rs. 500.00| |4|Others:<br>(i) Medical treatment<br>(ii) Attender|Rs. 75,000.00<br>Rs. 5,700.00|(i)Rs. 2,12,903.00<br>(ii)Rs. 5,700.00| |5|Compensation for pain and<br>suffering|Rs. 25,000.00|Rs. 40,000.00| |6|Compensation for loss of<br>amenities and conveniences of<br>life|Rs. 50,000.00|Rs. 60,000.00| ||Total|Rs.1,94,200.00|Rs. 3,93,103.00| ||||| M.A.C.A.No.1613 of 2018 9 ## 16. In the result: a) This M.A.C.A is allowed; b) The appellant/petitioner is found entitled to a further amount of _**Rs.1,98,903/- (Rupees One lakh ninety eight thousand nine hundred and**_ _**three only)**_ in addition to the amount already awarded by the Tribunal under the impugned award; c) The entire amount of compensation shall carry interest at the rate 9% from the date of petition till the date of deposit of realisation; d) The 3[rd] respondent/insurer is directed deposit the entire amount of compensation within a period of two months from this date. e) All other directions of the Tribunal are upheld. Sd/- _**(A.BADHARUDEEN, JUDGE)**_ _rtr/_ M.A.C.A.No.1613 of 2018 10 ## _**A P P E N D I X**_ ## _APPELLANT'S EXHIBITS_ _ANNEXURE-1 : ADDITIONAL DOCUMENT (DISCHARGE BILL DATED 5.2.2016 OF UNITY HOSPITAL, KASARAGOD._