Mary P.T. v. Jose, Abdul Huck and National Insurance Co. Ltd.

1 MACA No.2997 of 2009 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 8[TH] DAY OF NOVEMBER 2021 / 17TH KARTHIKA, 1943 MACA NO. 2997 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1032/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA, THRISSUR APPELLANT/S:** MARY P.T., W/O.JOSEPH, PALAKAL HOUSE KOTTAPURAM P.O,T.K.S PURAM,THRISSUR DISTRICT. BY ADV SRI.N.KRISHNANKUTTY PILLAI ## **RESPONDENT/S:** |1|JOSE,MENACHERY HOUSE, NATIONAL ROSE| |---|---| ||GARDEN,MADAKKATHARA,THRISSUR DISTRICT.| |2|ABDUL HUCK,S/O.ABDUL RAHIMAN| ||MALLIKATHODY HOUSE,VALMELPARAMBU,, EDAKOCHI| ||VILLAGE,PALLURUTHY,ERNAKULAM DISTRICT.| |3|THE MANAGER,NATIONAL INSURANCE CO.LTD| ||TRIPUNITHURA BRANCH,ERNAKULAM DISTRICT.| ||BY ADV SRI.LAL GEORGE| ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 08.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2997 of 2009 ## **C.S.DIAS, J. ====================== MACA No.2997 of 2009** ## **====================== Dated this the 8[th] day of November, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) 1032/2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that she sustained in an accident on 15.6.2004. She had averred in the claim petition that, while she was walking along the Kodungallur-Paravur National Highway 17 Road and when she reached the T.K.S Puram junction, a tempo van bearing registration No.KL-8/8512 (Van), driven by the second respondent in a negligent manner, hit the appellant. The appellant was thrown on to the road and 3 MACA No.2997 of 2009 she sustained serious injuries. She was treated at the Medicare Hospital, Kodungallur and at the Medical Trust Hospital, Ernakulam, for a period of 18 days. The Van was owned by the first respondent and insured with the third respondent. The appellant was aged 55 years at the time of the accident. She was a coolie worker and was earning a monthly income of Rs.3,000/-. The appellant claimed a compensation of Rs.1,56,000/- from the respondents, which was limited to Rs.1,25,000/-. 3. The first respondent had filed a written statement admitting that he was the owner of the offending vehicle at the time of the accident. 4. The second respondent did not contest the proceeding and was set ex parte. 5. The third respondent had filed a written statement admitting that the Van had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the appellant. 4 MACA No.2997 of 2009 6. The appellant marked Exts A1 to A6 in evidence. The respondents did not let in any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to realise from the third respondent an amount of Rs.74,620/- with interest and costs. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in the appeal. 9. Heard: Sri.N.Krishnankutty Pillai, the learned Counsel appearing for the appellant/petitioner and Sri.Lal George, the learned counsel appearing for the third respondent – insurer. 10. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 11. Ext A1 FIR in crime No.407/2004 of the 5 MACA No.2997 of 2009 Kodungallur Police proves that the accident happened due to the negligence of the first respondent. Admittedly, the second respondent was the owner and the third respondent was the insurer of the offending Van. The third respondent has admitted that the Van had a valid insurance coverage and has not proved that the second respondent had violated the terms of the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Notional Income** 12. The appellant had averred in the claim petition that she was a coolie worker and was earning a monthly income of Rs.3,000/-. However, the Tribunal fixed the notional monthly income of the appellant at Rs.1,500/-. 13. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** 6 MACA No.2997 of 2009 **236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 14. Following the yardstick in the aforecited decision and considering the fact that the accident happened in the year 2004 and the appellant had claimed that she was having a monthly income of Rs.3,000/-, I fix the notional monthly income of the appellant at Rs.3,000/-, as claimed in the claim petition. ## **Loss of earnings** 15. It is proved by Exts A3 and A4 discharge summaries and Ext A5 disability certificate that the appellant had sustained major injuries, viz., fracture D3/4 vertebral body, fracture distal end of radius, anterior wedging of D3/4 vertebra, malunited fracture lower end radium with inferior radio ulnar dislocation, restriction of supination movements of left wrist joint in moderate degrees and compression fracture of body of D3 and D4 vertebras beyond 50 degrees with resultant gibbus 7 MACA No.2997 of 2009 deformity of thoracic spine in moderate degree. In view of the above major injuries, I hold that the appellant was incapacitated for a period of four months as claimed in the petition. 16. In view of the refixation of the notional monthly income of the appellant at Rs.3,000/-, I award the appellant an amount of Rs.12,000/- towards loss of earnings. ## **Disability of the appellant** 17. As already discussed above, as per Ext A5 disability certificate, it is proved that the appellant had sustained serious injuries. She was a coolie worker by profession. The Doctor who issued Ext A5 has certified that the appellant has a permanent disability of 15%. 18. In **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)],** the Hon'ble Supreme Court has categorically held that, what needs to be looked into in a case of injury is the functional disability of the injured - claimant. 8 MACA No.2997 of 2009 19. In the instant case, going by the serious nature of injuries that the appellant had sustained as evidenced by Ext A5 and taking note of the fact that she was a coolie worker by profession, I hold that the appellant's functional disability can be fixed at 25% following the principles in **Raj Kumar** (supra). ## **Multiplier** 20. As the appellant was aged 55 years at the time of the accident, following the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier is '11'. ## **Loss due to disability** 21. Taking into account the above mentioned factors, i.e., the monthly income of the appellant at Rs.3,000/-, the multiplier at '11' and the functional disability at 25%, I hold that the appellant is entitled to compensation for loss due to disability at Rs.99,000/-, instead of Rs.11,520/- awarded by the Tribunal. 9 MACA No.2997 of 2009 ## **Loss of amenities and pain and sufferings** 22. The appellant had claimed an amount of Rs.20,000/- as compensation for pain and sufferings and Rs.10,000/- as compensation for loss of amenities. The Tribunal has awarded an amount of Rs.15,000/- and Rs.3,000/-, respectively, under the above said heads, which according to me is on the lower side. 23. Keeping in mind the fact that the appellant had sustained serious injuries and had suffered a functional disability of 25%, that she was treated as inpatient for a period of 18 days and that she was indisposed for a period of four months, I hold that she is entitled for enhancement of compensation under the aforesaid heads by further amount of Rs.5,000/- and Rs.7,000/-, respectively, as claimed in the claim petition. ## **Bystander expenses** 24. The Tribunal has awarded an amount of Rs.1800/- towards bystander expenses i.e., Rs.100/- per 10 MACA No.2997 of 2009 day for a period of 18 days, which is too meagre. 25. Considering the fact that the accident was in the year 2004, I award an amount of Rs.300/- per day towards bystander expenses for a period of 18 days, which works out to an amount of Rs.5,400/-. ## **Other heads of claim** 26. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 27. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. 11 MACA No.2997 of 2009 |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Loss of earnings|4,500/-|12,000/-| |2|Transport to hospital|500/-|500/-| |3|Bystander expenses|1,800/-|5,400/-| |4|Medical expenses|38,300/-|38,300/-| |5|Pain and sufferings|15,000/-|20,000/-| |6|Loss of amenities|3,000/-|10,000/-| |7|Loss due to disability|11,520/-|99,000/-| ||Total|74,620/-|1,85,200/-| 28. Even though the appellant had only claimed an amount of Rs.1,25,000/- as compensation, following the principles in **Raj Kumar** (supra), I have awarded the appellant more compensation than what is claimed in the claim petition. The said course is permissible in view of the law laid down in **Nagappa vs. Gurudayal Singh [ 2003 (1) KLT 115(SC) and Rajesh vs. Rajbir Singh** **[ 2013 (3) KLT 89 (SC)].** In the result, the appeal is allowed by 12 MACA No.2997 of 2009 enhancing the compensation by an amount of **Rs.1,10,580/-** (Rupees One Lakh Ten Thousand Five Hundred and Eighty only) with interest on the said amount at the rate of 7% per annum from the date of claim petition till the date of deposit, after deducting interest for a period of 230 days, i.e., the period of delay in filing the appeal and as ordered by this Court on 14.9.2021 in C.M Appln 1/2009, and a cost of Rs.10,000/-. The third respondent-insurer is ordered to deposit the enhanced compensation amount with interest and costs before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the enhanced compensation amount to the appellant in accordance with law. SD/- sks/8.11.2021 **C.S.DIAS, JUDGE**