Merena Mathew v. Padmanabhan, Binumon M.P., United India Insurance Company Limited

1 MACA No.875 of 2011 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 28[TH] DAY OF JANUARY 2022 / 8TH MAGHA, 1943** ## **MACA NO. 875 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 2378/2003 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/S:** MERENA MATHEW , W/O.P.U MATHEW PARAYIL HOUSE, PULIKKAMALI.P.O., MULANTHURUTHY, VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. BY ADVS. SRI.ANIL S.RAJ SRI.G.ARUN GOPAN SMT.K.N.RAJANI ## **RESPONDENT/S:** 1 PADMANABHAN , MOOLEKATTIL HOUSE THURUTHIKKARA, PANGARAPPILLY.P.O.,, EDAKKATTUVAYAL680586. 2 BINUMON.M.P., S/O. PADMANABHAN MOOLEKKATTIL HOUSE, THURUTHIKKARA,, PANGARAPPILLY.P.O., EDAKKATTUVAYAL, PIN-680586. 3 UNITED INDIA INSURANCE COMPANY LIMITED TRIPUNITHURA-682301. BY ADV SRI.P.K.MANOJKUMAR-R3 ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 28.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.875 of 2011 ## **C.S.DIAS, J. ====================== MACA No.875 of 2011** **====================== Dated this the 28[th] day of January, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.2378/2003 on the file of the Motor Accident Claims Tribunal, Ernakulam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to her in an accident on 29.9.2003. It was her case that, on the above said date, while she was standing on the Mulanthuruthy-Piravom road, a motorcycle bearing registration No.KL-05/E 1727, driven by the second respondent in a rash and negligent manner, hit the appellant. The appellant had sustained serious injuries 3 MACA No.875 of 2011 and was treated as an inpatient for a period of 14 days at the Varsha Nursing Home, Mulanthuruthy and at the Ernakulam Medical Centre. She suffered a basifrontal hemorrhagic contusion. She has persisted giddiness and loss of memory. The first respondent was the owner and the third respondent was the insurer of the motorcycle. The appellant was working as a daily deposit collector with the Mulanthuruthy Service Co-operative Bank and was earning a monthly income of Rs.5,000/-. Hence, the appellant claimed a compensation of Rs.3,90,000/- from the respondents, which claim was limited to Rs.3,00,000/-. 3. The respondents 1 and 2 did not contest the proceeding and were set ex parte. 4. The third respondent/insurer had filed a written statement admitting the insurance coverage of the motorcycle. However, the third respondent contended that the accident occurred due to the negligence of the 4 MACA No.875 of 2011 appellant. The third respondent also disputed the age, income and occupation of the appellant. 5. The appellant had produced and marked Exts A1 to A11 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to recover from the third respondent an amount of Rs.1,65,099/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Smt.Rajani K.N, the learned counsel appearing for the appellant/petitioner and Sri.P.K Manoj Kumar, the learned counsel appearing for the third respondent/insurer. 9. The point that arises for consideration in the appeal is whether the quantum of compensation awarded 5 MACA No.875 of 2011 by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Ext A5 charge-sheet filed by the City Traffic Police, Kochi in crime No.247/2003 proves that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the motor cycle. The respondents have not let in any evidence to discredit Ext A5 charge-sheet. The third has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Notional Income** 11. The appellant had claimed that she was a Daily Collection Agent of the Mulanthuruthy Service Cooperative Bank and was earning a monthly income of Rs.5,000/-. In order to substantiate her contention, she 6 MACA No.875 of 2011 produced Ext A8 employment cum income certificate issued by the Bank, wherein, it is stated that the appellant was earning an average monthly income of Rs.8,500/-. However, the Tribunal for the reason that the appellant's employment was not permanent, fixed the notional monthly income at Rs.3,000/-. 12. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 13. Taking into consideration the fact that the accident occurred in the year 2003 and that the appellant has pleaded in the claim petition that she was earning a monthly income of Rs.5,000/-, I am inclined to fix the monthly income of the appellant at Rs.5,000/-, as claimed in the claim petition. 7 MACA No.875 of 2011 ## **Loss of earnings** 14. It is proved as per Exts A6 wound certificate, A7 treatment certificate and A11 disability certificate that the appellant had sustained a head injury and has suffered bilateral sensory neural loss. She was treated as an inpatient for a period of 14 days and had undergone follow-up treatment till 6.1.2004. Therefore, I hold that she was indisposed for a period of three months. 15. In view of the refixation of the notional monthly income of the appellant at Rs.5,000/-, I award her an amount of **Rs.15,000/-** under the head 'loss of earnings' instead of Rs.6,000/- awarded by the Tribunal. ## **Disability** 16. The appellant was examined by a five member Medical Board attached to the General Hospital, Ernakulam, who has assessed the permanent disability of the appellant at 30%. The Tribunal has not fixed the functional disability of the appellant. Instead, the 8 MACA No.875 of 2011 Tribunal awarded her an amount of Rs.1,29,600/-. The course adopted by the Tribunal is erroneous and wrong. 17. In **Raj Kumar v. Ajay Kumar [2011 (1) KLT** **620(SC)]** , the Hon'ble Supreme Court has held that what needs to be looked into in an injury claim is the functional disability of the injured-claimant. 18. In the instant case, the appellant was a Daily Collection Agent and Ext X1 shows that she has a bilateral sensory neural loss. Therefore, I fix the appellant's functional disability at 20%. ## **Multiplier** 19. Admittedly, the appellant was aged 31 years at the time of the accident. In view of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009)** **6 SCC 121]** , the relevant multiplier to be adopted is '16'. ## **Loss due to disability** 20. Taking into account the above mentioned factors, namely, the notional monthly income of the 9 ## MACA No.875 of 2011 appellant at 5,000/-, the multiplier at '16' and her functional disability at 20%, I award the appellant an amount of **Rs.1,92,000/-** towards loss due to disability, instead of Rs.1,29,600/- awarded by the Tribunal. ## **Bystander expenses and Extra Nourishment** 21. It is proved and established that the appellant was treated as an inpatient for a period of 14 days. On a consideration of the fact that the accident occurred in the year 2003, I award the appellant an amount of Rs.300/per day for a period of 14 days towards bystander expenses, which works out to **Rs.4,200/** -. Likewise, I award her an amount of Rs.150/- per day for a period of 14 days towards extra nourishment, which amounts to **Rs.2,100/-.** ## **Pain and sufferings and Loss of amenities** 22. The appellant had claimed an amount of Rs.20,000/- each under the heads 'pain and sufferings' and 'loss of amenities'. The Tribunal has awarded only 10 MACA No.875 of 2011 an amount of Rs.12,000/- and Rs.8,000/-, respectively, under the said heads. 23. Taking into consideration the fact that the appellant has sustained a functional disability of 20%; that she was treated as an inpatient for a period of 14 days and that she was indisposed for a period of three months, I award her an amount Rs.20,000/- each, under the heads, 'pain and sufferings' and 'loss of amenities', as claimed in the claim petition. ## **Other heads of compensation** 24. With respect to the other heads of claim, viz., transportation expenses, medical expenses and damage to clothing, I find that the Tribunal has awarded reasonable and just compensation. 25. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the aforecited precedents, I hold that the appellant/petitioner is entitled to enhancement of compensation as modified 11 MACA No.875 of 2011 and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|6,000/-|15,000/-| |2|Transportation expenses|500/-|500/-| |3|Extra nourishment|1,000/-|2,100/-| |4|Bystander expenses|1,700/-|4,200/-| |5|Medical expenses|5,899/-|5,899/-| |6|Pain and sufferings|12000/-|20,000/-| |7|Damage to clothing|400/-|400/-| |8|Loss due to disability|1,29,600/-|1,92,000/-| |9|Loss of amenities etc|8,000/-|20,000/-| ||Total|1,65,099/-|2,60,099/-| In the result, the appeal is allowed, in part, by enhancing the compensation by an amount of **Rs.95,000/-** (Rupees Ninety Five Thousand only) with interest at the rate of 7.5% per annum on the enhanced compensation from the date of claim petition till the date of realisation and a cost of Rs.10,000/-. The third respondent is ordered to deposit the enhanced 12 MACA No.875 of 2011 compensation with interest and cost 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 deposited amount to the appellant /petitioner, in accordance with law. SD/- sks/28.1.2022 **C.S.DIAS, JUDGE**