Mary Francis v. C. Gnanasekaran, Peter and National Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 17TH DAY OF MARCH 2016/27TH PHALGUNA, 1937 MACA.No. 1986 of 2011 ( ) -------------------------AGAINST THE AWARD IN OP(MV)No.2261/2003 of THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,ERNAKULAM DATED 31-01-2011 APPELLANT/PETITIONER: --------------------------- MRS.MARY FRANCIS, AGED 48 YEARS, WIFE OF SRI.FRANCIS K.D., KARIPPASSERY HOUSE, SAMIPPADY, ELAMAKKARA.P.O., EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. ## BY ADV. SRI.ANIL S.RAJ RESPONDENTS/RESPONDENTS: ---------------------------------- 1. C.GNANASEKARAN, SON OF CHINNAPPAN, ATHIKADU, SAMIYARIPATTI.P.O., SANKARI, SALEM DISTRICT. PIN - 637 001. 2. PETER, SON OF OUSO, KATTASSERY HOUSE, NEAR KANDANADU KAPPELA, KOTHAD DESOM, KANDANADU KARA, KADAMAKKUDY VILLAGE, KADAMAKKUDY .P.O., PIN-682 027. 3. NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, ERNAKULAM, COCHIN-682 016. R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW R3 BY SRI.M.A.GEORGE THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** ------------------------------- M.A.C.A.No.1986 of 2011 -------------------------------Dated 17[th] March, 2016 ## **JUDGMENT** ## **Mary Joseph, J.** The appellant, the claimant in O.P.(M.V)No.2261 of 2003 on the files of Additional Motor Accidents Claims Tribunal, Ernakulam (for short `the Tribunal') has approached this Court seeking enhancement of the compensation. Since policy in respect of the lorry, the offending vehicle and negligence of the driver of the said vehicle as the cause of accident are not disputed by the respondents before the Tribunal, notice to respondents 1 and 2, the owner and the driver of the said vehicle are dispensed with. The third respondent is the only contesting respondent. 2. For the sake of convenience, the parties to this appeal are referred to hereinafter as `the claimant' and `the third respondent' respectively. 3. The facts necessary for the disposal of this appeal are reproduced hereunder. The motor accident, which occasioned the filing of O.P.(M.V.) No.2261 of 2003 before the Tribunal was occurred on 14.5.2003. On M.A.C.A.No.1986/2011 2 the fateful day, the claimant was travelling as pillion rider in a motor cycle bearing Reg.No.KL-07/AL 8777 ridden by her brother and it was dashed by a lorry bearing Reg.No.TDB 5722 near Kumbalam Bus Stop in Aroor - Edappally Bypass Road. The claimant with the injuries sustained by her was rushed to Medical Trust Hospital, Ernakulam and was treated there as inpatient. She had different spells of hospitalisation in the very same hospital. Alleging responsibility upon the 2[nd] respondent, the driver of the lorry at the relevant time, vicarious liability upon the first respondent, the owner and liability to indemnify the first respondent/the insured, upon the 3[rd] respondent as insurer, the claim petition was preferred by the claimant before the Tribunal seeking compensation of 6,32,000/-. The Tribunal on the basis of the oral₹ testimony of the claimant as PW1 and documentary evidence let in by her as Exts.A1 to A14 arrived at a compensation of 4,89,082/-₹ (Rupees Four lakhs eighty nine thousand and eighty two only) and awarded the same with interest at the rate of 7.5% per annum from the date of the claim petition till realisation and proportionate costs. Dissatisfied with the quantum of compensation so awarded, the claimant has approached this Court in appeal. 4. Smt.Rajani K.N., learned counsel for the claimant and Sri.Mathews Jacob, learned Senior counsel appearing for the 3[rd] M.A.C.A.No.1986/2011 3 respondent were heard. 5. The first and foremost contention of Smt.Rajani K.N. was that the compensation awarded by the Tribunal was not in tune with the evidence adduced by the claimant. According to her, the claimant had sustained serious injuries in the motor accident and had undergone prolonged treatment as evident from Exts.A7 to A12 documents and had expended huge sum on transportation, treatment and bystander expenses, but the Tribunal was pleased to award only 24,000/-₹ under the head loss of earning, 500/- under the head transportation₹ expenses, 4,000/- under the head extra nourishment, .12,500/-₹ ₹ under the head attendant expenses, 35,000/- under the head pain₹ and sufferings, 1,87,200/- under the head continuing and permanent₹ disability, ₹ 23,000/under the head loss of amenities and enjoyments in life and 10,000/- under the head compensation for₹ disfiguration. According to the learned counsel, the compensation awarded under various heads of claim is not just and reasonable as envisaged by the statute and therefore, interference of this Court is warranted. 6. Per contra, Sri.Mathews Jacob, the learned Senior counsel appearing for the 3[rd] respondent has contended that the Tribunal has applied its mind to all relevant materials placed on record M.A.C.A.No.1986/2011 4 by the claimant and has awarded reasonable compensation under various heads as per the claim petition. According to him, interference is not called for in the said context. 7. In the backdrop of the rival contentions advanced by both counsel, it is necessary to have a look at the evidence on record. Ext.A6 is the accident register-cum-wound certificate issued from Medical Trust Hospital, Ernakulam. It is described in the impugned award on the basis of Ext.A6 that the claimant was taken to the hospital immediately after the accident with fracture of both bones of left leg with segmental tiabia and Oedema and tenderness over left foot. There is narration in the impugned award based on Ext.A7 to A12 that the claimant was subjected to interlocking of left tibia under Spinal Anesthesia, wound debridement twice under General anesthesia, nail removal and application of above knee POP slab under Spinal Anesthesia. It is also noted from the impugned award that illizaro readjustment, bone grafting of left tibia and open reduction and internal fixation with DCP plate were done on 31.1.2004. Tribunal came to the conclusion based on the discharge summaries marked as Exts.A7 to A12 that the claimant had undergone inpatient treatment for 100 days during different spells of hospitalisation and medical bills marked as Ext.A13 series that ₹ 1,92,482.50 was spent by the claimant towards M.A.C.A.No.1986/2011 5 treatment. It is urged by the learned counsel that the actual period of inpatient treatment as evidenced from Exts.A7 to A12 was 159 days, but the Tribunal erroneously took it as 100 days, thereby disentitled him from receiving reasonable compensation under the head bystander expenses, extra nourishment, loss of earning and pain and suffering. 8. It is discernible from the impugned award that the Tribunal has taken 125/- as bystander expense per day. The₹ accident being in the year 2003, we are of the considered opinion that ₹ 150/- per day is a reasonable sum. As already observed hereinabove the claimant was hospitalised for 159 days. When computed in that manner, the claimant would be entitled to get ₹ 23,850/- under the head bystander expenses. The Tribunal has already awarded 12,500/- and therefore the claimant would get a sum₹ of 11,350/- additionally. We have no hesitation to observe that₹ ₹ 4,000/- awarded by the Tribunal under the head extra nourishment is inadequate for the reason that it was worked out based on a mistaken calculation of the days of in-patient treatment. The Tribunal seems to have arrived at 4,000/- by taking 40/- per day for 100₹ ₹ days. The claim of the claimant under the head was for 10,000/-₹ and we are inclined to award the sum claimed as such under the said head. Therefore, the claimant would get 6,000/- additionally. Our₹ M.A.C.A.No.1986/2011 6 attention was already drawn by the learned counsel to the nature of the injuries sustained, the treatment procedures undergone and the duration for which it was availed. Viewed in that backdrop, we see force in the argument of the learned counsel that 35,000/- awarded by₹ the Tribunal under the head pain and suffering is inadequate. Therefore we are inclined to award 15,000/- additionally under the said head.₹ Evidently, the Tribunal has awarded only 500/- under the head₹ transportation expenses. The accident was occurred at Kumbalam and following that, the claimant was constrained to undergo treatment on five different spells at Medical Trust Hospital, Ernakulam. In the event of these facts stand undisputed, needless to observe that the Tribunal is unjustified in awarding 500/- under the head transportation₹ expenses. It is discernible from the impugned award that the claimant had made a claim of 5,000/- under the head and being a reasonable₹ claim, we are inclined to award the same. Therefore, the claimant would be entitled to get 4,500/- additionally on that count. Under₹ the head damages to clothing, the Tribunal has awarded 400/-,₹ which in our view is on the lower side and therefore, we are inclined to award 600/- more under that head.₹ 9. The learned counsel invited our attention to the fact that the Tribunal has taken the monthly income of the claimant as M.A.C.A.No.1986/2011 7 ₹ 3,000/- and on its basis, loss of earning was computed for 8 months and awarded a sum of 24,000/- as compensation. Viewed in the₹ light of the serious injuries sustained by the claimant and the long period for which the treatment was continued by her, we are of the considered opinion that loss of earning for one year can be considered. The Tribunal had fixed the monthly income of the claimant as ₹ 3,000/- notionally in the absence of any evidence to establish otherwise and therefore, we are declined to interfere with that. When the calculation is done with 3,000/- as the monthly income for one₹ year, the compensation payable to the claimant for loss of earning would come to ₹ 36,000/-. The Tribunal has already awarded ₹ 24,000/- under that head and therefore, claimant is entitled to get ₹ 12,000/- additionally. 10. Before the Tribunal the claimant had produced Ext.A14, a certificate assessing his disability by the Medical Board constituted at District Hospital, Ernakulam. The Medical Board has noted in Ext.A14 on the basis of its examination of the claimant that he has post traumatic stiffness of left knee and ankle with deformed left foot and discharging sinus from the left leg. Ext.A14 was issued on 25.5.2009, almost three years after the conclusion of the treatment. The Tribunal has taken 40%, the disability assessed by the Medical Board as such, M.A.C.A.No.1986/2011 8 for the purpose of computation of compensation under the head continuing and permanent disability and has awarded 1,87,200/-. It is₹ discernible from the impugned award that the Tribunal has erred in adopting the multiplier. The claimant claimed to be aged 40 years at the relevant time and the Tribunal took '13' as the multiplier. The Apex Court in _**Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802 (SC)),**_ in paragraph 14 held that the proper multiplier in the case of persons of age group of 41-45 years is `14'. Going by the impugned judgment it is revealed that the Tribunal took the multiplier as '13' on the mistaken notion that the claimant was aged 47 years. In a case wherein the claimant has pleaded her age as 40 years and failed to produce any material to substantiate the same, the accepted practice is to consider the age as above 40 years and to apply the corresponding multiplier. Therefore, the appropriate multiplier applicable is not '13' , but only '14' in view of the dictum in **Sarla Verma's** case (supra). When computation is done by taking the multiplicand and the multiplier factors as 3,000/- and '14' respectively, the compensation payable₹ under the head `continuing and permanent disability' would come to ₹ 2,01,600/-. The Tribunal has already awarded 1,87,200/- under₹ the head and therefore, the claimant would be entitled to get ₹ 14,400/- additionally. Computed in the manner, the claimant would M.A.C.A.No.1986/2011 9 be entitled to get a total sum of ₹ 63,850/-, rounded off to ₹ 64,000/- over and above the sum already awarded by the Tribunal as compensation. In the result, the appeal is allowed and the claimant is found entitled to get enhancement of compensation to the tune of 64,000/-₹ with interest at the rate of 8% per annum from the date of the claim petition till realisation. The 3[rd] respondent shall deposit the aforesaid sum within 2 months from the date of receipt of a copy of this judgment. It is needless to observe here that in case of default in depositing the sum within the stipulated time, the 3[rd] respondent shall pay interest at the rate of 9% per annum for the said sum from the date of the claim petition till realisation. Parties shall bear their respective costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **MARY JOSEPH Judge** TKS