Mary Grace @ Shincy v. The New India Assurance Co. Ltd. and Others (MACA No. 1351/2016)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 1[ST] DAY OF DECEMBER 2023/10TH AGRAHAYANA, 1945 ``` ``` MACA NO. 1351 OF 2016 ``` ``` OPMV 42/2010 OF ADDITIONAL MOTOR ACCIDENT CLAIMS ``` ## **`TRIBUNAL , ALAPPUZHA`** ## **`APPELLANT/PETITIONER:`** ``` MARY GRACE @ SHINCY AGED 35 YEARS W/O.GRACY, AGED 35 YEARS,KARUKAPARAMBU, PUNNAPRA.P.O.,ALAPPUZHA. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 SYAM @ SYAMKUMAR (DRIVER), S/O.THANKACHAN,PATHINANCHIL VEEDU, WARD NO.5,PUNNAPRA SOUTH, PUNNAPRA. 688004` - `2 JAYARAJ MAHESH BHAVAN, THEVALAPPURAM.P.O.,PALLAMALA, KOTTARAKKARA, KOLLAM.691507` - `3 THE NEW INDIA ASSURANCE CO. LTD. REP. BY ITS BRANCH MANAGER, ALAPPUZHA.688001 BY ADV SRI.N.S.NAJEEB` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.1351/2016 : 2 : ## JUDGMENT The appellant was the petitioner in O.P(M.V) No. 42/2010 on the files of the Motor Accidents Claims Tribunal, Alappuzha. The said claim petition was submitted by her seeking compensation for the injuries sustained to her in a motor accident that occurred on 08.08.2009. 2. The accident occurred when she was hit by a motorcycle bearing registration No. KL-24/5524 ridden by the 1 st respondent. The said motorcycle was owned by the 2 nd respondent and was insured with the 3rd respondent. The appellant was a housewife aged 29 years, and the monthly income claimed was Rs.4,000/-. Consequent to the injuries, she sustained permanent disablement as well. The claim petition was submitted in such circumstances. 3. The 3rd respondent alone filed a written statement wherein they accepted the existence of a valid policy for the said vehicle. However, they contended that the 1st respondent was riding the motorcycle without a valid driving licence; therefore, violation of policy conditions was alleged. They also disputed the M.A.C.A. No.1351/2016 : 3 : quantum of compensation. 4. The evidence in this case consists of Exts.A1 to A11 from the side of the appellants and DW1 was examined from the side of the respondent. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 1st respondent. The Tribunal also found that the 1 st respondent was not having a valid driving licence and therefore, violation of policy conditions was found. Therefore, even though the 3rd respondent was held liable to pay the compensation at the first instance, they were permitted to recover the said compensation from the 2nd respondent. The quantum of compensation was fixed as Rs.1,07,630/- and the said amount was directed to be deposited by the 3rd respondent insurance company along with interest at the rate of 8% per annum from the date of petition till realisation with proportionate cost, at the first instance, subject to the right of recovery granted to them. This appeal is submitted in such circumstances by the appellant seeking enhancement of compensation. 5. Heard, Sri. P.J Joe Paul, the learned counsel appearing for the appellant and Sri. N.S Njaeeb, the learned M.A.C.A. No.1351/2016 : 4 : counsel appearing for the 3rd respondent/insurance company. 6. The main contest in this case relates to the quantum of compensation awarded under various heads, particularly under the head of continuing permanent disability. The first challenge in this regard is relating to the monthly income. Of course, it is true that the claim made by the appellant in this regard was Rs.4,000/only, which was accepted by the Tribunal. However, the specific contention of the learned counsel for the appellant is that, in the light of Gopinathan and Others. vs. Afzal Basha and others [2020 (3) KHC 666 A], the monthly income of a housewife can be taken at par with any other employment. In this regard it is to be noted that, as per the method of computation evolved from the principles laid down by the Honourable Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236] and Syed Sadiq & Ors. v. Divisional Manager, United India Insurance Company Ltd. [2014 (2) SCC 735], the monthly income of an ordinary employee, can be fixed as Rs.4,500/- in respect of an accident occurred in the year 2004. The usual method that is adopted for determining the monthly income for the subsequent years is to make an M.A.C.A. No.1351/2016 : 5 : addition of Rs.500/- each per year, and when that method of computation is adopted, in respect of the accident that occurred in the year 2009, the monthly income can be fixed as Rs.6,500/for an ordinary worker. In the light of the decision of this Court in Gopinathan 's case, the said monthly income can be accepted in this case also, as the claimant being a house wife. Thus, Rs.6,500/- is fixed as the monthly income. 7. The next aspect relates to the percentage of disability. Ext.A9 is the disability certificate issued by the Doctor who was examined as PW1. The percentage of disability certified therein was 12%, whereas the Tribunal scale down the same to 8%. While reducing the percentage of disability, the tribunal mentioned no reasons. When a medical certificate issued by a competent Doctor is produced with a particular percentage of disability and it was proved by examining the said Doctor, under normal circumstances, the scaling down of the percentage of disability at the instance of the tribunal should not be made, unless there are serious discrepancies in the said certificate warranting such reduction. In this case, there was no mention about any discrepancies in the certificate issued by the Doctor or M.A.C.A. No.1351/2016 : 6 : the assessment of disability made therein. On going through the materials and nature of injuries sustained by the victim, I do not find any such discrepancies as well. Therefore, I am of the view that 12%, as certified in the said certificate, can be accepted. While reassessing the compensation under the head of the disability with the above-revised criteria, the amount of compensation would come to Rs.1,59,120/- (6500 x 12x 17x 12/100). The amount already awarded by the tribunal is Rs.65,280/- and thus the additional amount of compensation would come to Rs.93,840/-. 8. The other heads which requires enhancement are pain and sufferings as well as loss of amenities. The amount awarded by the tribunal under this heads are Rs.12,000/- and Rs.8,000/- respectively. In Ext.A9 disability certificate, the reasons for assessment of the disability were described in the manner as follows: “(1) There is mal union of superior and inferior public rami of right side resulting in chronic of back ache and right hip pain. (2) 10 degree limitation of flexion, rotations of right hip with difficulty to squat, sit cross legged, climbing etc.” M.A.C.A. No.1351/2016 : 7 : 9. Thus, it is evident that consequent to the injuries sustained, she is experiencing chronic back aches and right hip pain. There are serious restrictions in movements as well. Therefore, I find that the amounts awarded under both the above heads are on the lower side. In the facts and circumstances of the case, I deem it appropriate to grant a further amount of Rs.18,000/- and Rs.17,000/- respectively in these heads. 10. Consequent to the revision of monthly income, the appellant would be entitled to an additional amount under the head of loss of earnings as well. The tribunal awarded Rs.12,000/-, which was for a period of three months. Thus, the additional amount would come to Rs.7500/- (6500 x 3 – 12000). Thus, the total additional compensation receivable by the appellant would come to Rs.1,36,340/- (93840+18000+ 17000+ 7500). In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 18.02.2015 in OP(MV) No.42/2010 passed by the Additional Motor Accidents Claim Tribunal, Alappuzha, is hereby modified by granting an additional compensation of Rs.1,36,340/- (Rupees one lakh thirty six M.A.C.A. No.1351/2016 : 8 : thousand three hundred and forty only) and the 3[rd] respondent is directed to deposit the said amount along with interest at the rate as ordered by the tribunal with 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 this Court has not interfered with the findings of the tribunal regarding the violation of policy conditions it shall be open for the 3[rd] respondent to recover the additional compensation from the 2[nd] respondent herein, after satisfying the judgment. Sd/ZIYAD RAHMAN A.A. JUDGE rpk/ncd