Mariyamma v. Jarbesbanu and National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR.JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 20TH DAY OF MAY 2016/20TH VAISAKHA 1938** **MACA.No.340 of 2008 ( )** **------------------------AGAINST THE AWARD IN OPMV 422/2003 of M.A.C.T., MANJERI, DATED 11-10-2007.** **APPELLANT(S)/APPELLANT/PETITIONER:** **---------------------------------** **MARIYAMMA, AGED 41 YEARS,** **W/O.SEBASTIAN, KUZHUPPIL HOUSE, KARAPPURAM P.O., EDAKKARA, NILAMBUR TALUK, MALAPPURAM DIST.** **BY ADV. SRI.P.SAMSUDIN** ## **RESPONDENT(S)/2ND AND 3RD RESPONDENT:** **-------------------------------------** **1. MRS.JARBEESBANU, W/O.MOHAMMED SAJITH, REHNA VILLA, VALAPATTANAM, KANNUR (OWNER).** **2. NATIONAL INSURANCE CO.LTD.,** - **M.G.ROAD, THRISSUR.** **R2 BY ADV. SMT.SARAH SALVY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ss ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** ------------------------------------------------------- **M.A.C.A. No.340 of 2008** -------------------------------------------------------------- Dated this the 20[th] day of May, 2016 ## **JUDGMENT** ## **K.RAMAKRISHNAN, J** The claimant in O.P.(M.V.).No.422/2003 on the file of the Motor Accidents Claims Tribunal, Manjeri is the appellant herein. The appellant filed the claim petition, claiming compensation for the injuries sustained by her in a motor vehicle accident. According to the claimant, on 18.03.2002 at about 9.00 a.m., while she was travelling in the bus by name, Kolakkadan from Nilambur to Mukkam and the vehicle reached Kunnampadi on Areacode-Mukkam public road, a mini lorry bearing Reg.No.KL-13/F-3317 driven by the first respondent, owned by the second respondent and insured with the third respondent came from the opposite direction and hit against the bus causing injuries to the petitioner and others. She sustained severe injuries and she has been permanently disabled. According to her the accident occurred due to the rash and negligent driving of the mini lorry by first respondent. She was working as a rubber tapper aged 37 years getting 3,000/- per month. She claimed a total compensation of₹ _**M.A.C.A. No.340 of 2008**_ 2 ₹8,00,000/- on various heads. 2. Respondents 1 and 2 remained absent. The third respondent entered appearance and filed written statement admitting the insurance coverage of the vehicle. According to them, the first respondent was not having valid driving licence to drive the vehicle and so they are not liable to indemnify the owner. They have also contended that there was no negligence on the part of the first respondent and they prayed for dismissal of the application. 3. No oral evidence was adduced on either side. Exts.A1 to A5 and X1 were marked on the side of the claimant. After considering the evidence on record, the tribunal found that the accident occurred due to the negligence of the first respondent and awarded a total compensation of ₹3,09,680/rounded off to ₹3,09,700/- on various heads as follows. _**Heads Amount**_ Transport to the hospital ₹3,950/Extra nourishment & bystanders expenses ₹10,400/Damage to the clothing ₹250/For reviews (4 times) ₹400/Pain and suffering ₹15,000/For loss of income for one year @ 1,500/₹18,000/per month Medical Bill ₹1,27,080/For future treatment ₹5,000/For disability (18000x48x15)/100 ₹1,29,600/Total ₹3,09,680/Rounded to ₹3,09,700/- _**M.A.C.A. No.340 of 2008**_ 3 The tribunal held that respondents 1 to 3 are jointly and severally liable to pay the amount and directed the insurance company, the third respondent to deposit the amount. Dissatisfied with the quantum of compensation awarded by the tribunal, this appeal has been preferred by the appellant/claimant before the court below. 4. Since the liability of the insurance company is not in dispute and they have not filed any appeal against the award challenging the finding making them liable to pay the amount, notice to respondents 1 and 2 is dispensed with in the appeal. 5. Heard Sri.M.Samsudin, learned counsel appearing for the appellant and Smt.Sarah Salvy, counsel appearing for the third respondent/second respondent in the appeal. 6. The counsel for the appellant submitted that the court below had taken only 1,500/- per month as the monthly income₹ of the deceased, which is very low. Further no future prospects have been taken into consideration for fixing the compensation payable under the head loss of earning capacity. Further the court below should have taken the disability as 100%, though the disability was assessed as 48% considering the nature of disability suffered. No amount was awarded under the head loss of amenities in life. The 4 ## _**M.A.C.A. No.340 of 2008**_ amount awarded under the heads pain and suffering is also on the lower side. According to the learned counsel, he is entitled to get enhancement on all other heads. 7. On the other hand, the learned counsel for the insurance company submitted that the tribunal has considered all the aspects in the right perspective and the total compensation awarded is just and proper. 8. Since the finding regarding negligence has not been challenged. We are not going into that question in this appeal. The case of the claimant in the claim petition was that, she was a rubber tapper by profession, aged 37 years and getting 3,000/- per month.₹ The court below had taken only 1,500/- as her monthly income. Even₹ in the year 1994, the legislature has taken 15,000/- per annum as₹ notional income in respect of non-earning person. The accident is occurred in the year 2002. So considering the circumstances, we feel that the amount of 18,000/- per annum taken by the tribunal as the₹ income of the injured appears to be on the lower side. We are inclined to re-fix the same to 2,500/- per month. ₹ 9. In the decision reported in _**Rajesh v. Rajbir Singh**_ [2013(3) KLT 89 (SC)], the Supreme Court has held that, even in the _**M.A.C.A. No.340 of 2008**_ 5 case of person having no permanent income, future prospects will have to be taken into consideration and 50% of the income has to be taken for future prospects for the age group up to 40 years for the purpose of assessing compensation under the head loss of dependency. The same principle has been extended in respect of cases for permanent disability also, in the decision reported in _**Syed Sadiq v. Divisional Manager, United India Insurance Company**_ [AIR 2014 (SC) 1052]. Applying the principle, 50% of the monthly income has to be added as future prospects for taking the income of the injured for assessing compensation. 10. Ext.X1 is the disability certificate issued by the Medical Board where nature of injuries, treatment undergone and the disability has been extracted as follows: - “1. Comminuted fracture lower end of (R) humerous and upper end of ulna. 2. Dislocation radial head. 3. Fracture lower end of radius and ulnar stylord (R). 4. Lacerated wound 4 c.m.x2 c.m., posterior and lateral part of (R) elbow. She was admitted at Metropolitan Hospital on 18.3.2002 and discharged on 25.4.2002. She was treated with wound debridement, neurovascular flap (over elbow, K-Wire fixation and JESS fixation. She was again admitted there on 17.5.02 and discharged on 29.5.02 for physiotherapy. Now on examination there is extensive scar over (R) elbow and forearm with gross oedema, partial ankylosis of (R) elbow with range of movement of 20 degree. Finger grip is absent (R). There is partial ankylosis of shoulder (R). Hence her permanent partial disability is 48%”. _**M.A.C.A. No.340 of 2008**_ 6 11. It is seen from the disability certificate that there is restriction of elbow movement of 20 degree and grip of the finger (R) is absent and there is partial ankylosis of right shoulder as well. She is a rubber tapper according to her. Even assuming that she is a manual labourer, she may have difficulty in doing her work with this disability. It is not the percentage of disability that has been assessed by the board to be reckoned for the purpose of assessing compensation under the head loss of earning capacity, but the disability has to be corelated with the nature of occupation that is being pursued by the claimant. Considering the nature of injury sustained and also the nature of disability described in the disability certificate, it may not be possible for her to do her work as a manual labourer. So we deem it appropriate to fix the percentage of occupational disability of the person as 60% instead of 48% taken by the tribunal. If a recalculation is made on this basis, the appellant will be entitled to get an amount of 4,05,000/- (2,500x150%= 3715x12x15x60%) and₹ deducting 1,29,600/- awarded by the tribunal under the head loss of₹ earning capacity, the appellant will be entitled to get an additional amount of 2,75,400/- under that head and we award that amount₹ under that head. _**M.A.C.A. No.340 of 2008**_ 7 12. The tribunal has awarded ₹18,000/- as loss of earning during the period of treatment, taking the monthly income of the injured as 1,500/- per month. Since we have re-fixed the monthly₹ income as 2,500/- per month, she will be entitled to get an amount of₹ ₹30,000/- under that head instead of 18,000/- awarded by the₹ tribunal and thereby she is entitled to get an additional amount of ₹12,000/- under that head. 13. No amount was awarded under the head loss of amenities and inconvenience. It is settled law that a person suffering permanent disability may have disability for his earning capacity and also it may have impact on his personal life as well. There may be cases where even if there is permanent disability, it may not affect his or her earning capacity. In such circumstances, there is no necessity to award any amount under the head loss of earning capacity, though a reasonable amount has to be awarded under the head loss of permanent disability/ inconvenience or discomfort. But in cases where loss of earning capacity has occurred on account of the disability, then apart from awarding compensation under the head loss of earning capacity taking the percentage of disability and multiplier, a reasonable amount has to be awarded under the head loss of amenities in life as _**M.A.C.A. No.340 of 2008**_ 8 well. But the same yardstick of taking the multiplier and the percentage of disability should not be adopted in such circumstances as there is a possibility of duplication of amounts being awarded under two different heads by using the same yardstick and that will result in unlawful enrichment to the claimant. So considering the circumstances and also considering the the age and the disability mentioned, we feel it appropriate to award an amount of 1,00,000/- under the head loss₹ of amenities in life. 14. The court below has awarded only 15,000/- under₹ the head pain and suffering. Even as per the award, it is clear that she underwent an operation and also she was treated as inpatient for 104 days. So considering these aspects, we are inclined to enhance the same to 30,000/- from 15,000/-, thereby she will be entitled to get₹ ₹ an additional amount of 15,000/- more under the head pain and₹ suffering. We are not inclined to enhance any amount under other heads as the amounts awarded under other heads appears to be just and proper. So the appellant will be entitled to get and additional amount of 4,02,400/- over and above the compensation awarded by₹ the tribunal, which the second respondent in the appeal (insurance company) is liable to pay with 9% interest from the date of petition till _**M.A.C.A. No.340 of 2008**_ 9 payment. Three months time is granted to the insurance company to deposit the amount. Out of the additional amount awarded, an amount of 2,00,000/- be permitted to be withdrawn by the claimant and the₹ balance amount be deposited in a nationalized bank for a period of three years with liability for the claimant to approach for release showing the necessity for the same. With the above modification of the impugned award of the tribunal, the appeal is allowed in part and disposed of accordingly. Sd/- ## **( P.N. Ravindran, Judge)** Sd/- ## **(K. Ramakrishnan, Judge)** //True Copy// P.A. to Judge ss