MYMOONATH v. THE NATIONAL INSURANCE COMPANY LTD.

_**MACA. No.1105/2017**_ _**1**_ **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:17251 ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` WEDNESDAY, THE 19[TH] DAY OF FEBRUARY 2025 / 30TH MAGHA, 1946 MACA NO. 1105 OF 2017 ``` ``` AGAINST THE AWARD DATED 30.11.2016 IN OPMV NO.945 OF 2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA ``` ## **`APPELLANT/PETITIONER:`** ``` MYMOONATH W/O ISMAIL, RAYAM MARAKKAR HOUSE, KULAYIDAM DESOM, CHERUVALOO P.O. MUKUNDAPURAM TALUK, THRISSUR DIST. ``` ``` BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` ## **`RESPONDENT/3rd RESPONDENT:`** ``` THE NATIONAL INSURANCE COMPANY LTD. N.PARAVUR- 683 512 ``` ``` BY ADV SRI.LAL K.JOSEPH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARDON 19.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _**MACA. No.1105/2017**_ _**2**_ **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:17251`** ## J U D G M E N T Dated this the 19[th] day of February, 2025 The petitioner in O.P.(M.V.) No.945/2013 on the file of the Motor Accident Claims Tribunal, Irinjalakuda is the appellant herein. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal). 2. The petitioner filed the above O.P. under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 7.5.2013. According to the petitioner, on 7.5.2013 about 2.30 p.m., while she was travelling in a car bearing registration No.KL 40G 4785 driven by the 2[nd] respondent in a rash and negligent manner, the 2[nd] respondent lost control over car and it hit against a lorry parked on the side of the road and as a result of which the petitioner sustained serious injuries. 3. The 1[st] respondent is the owner, the 2[nd] respondent is the driver and 3[rd] respondent is the insurer of the offending vehicle. According to the petitioner, the accident occurred due to the negligence of the driver _**MACA. No.1105/2017**_ _**3**_ **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:17251`** of the offending vehicle. The quantum of compensation claimed in the O.P. is Rs.22,70,000/- limited to Rs.12,00,000/-. 4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence on the part of the driver of the offending vehicle. 5. The evidence in the case consists of the oral testimony of PW1 and documentary evidence Exts.A1 to A23. No evidence was adduced by the respondents. 6. After evaluating the evidence on record, the Tribunal found negligence on the part of the 2[nd] respondent, awarded a total compensation of Rs.7,26,730/- and directed the insurer to pay the same. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner preferred this appeal. 8. Now the point that arises for consideration is the following: _Whether the quantum of compensation awarded by_ _the Tribunal is just and reasonable?_ 9. Heard Sri. P.V. Baby, the learned Counsel appearing for the petitioner/appellant, and Sri. Lal K. Joseph, the learned Standing _**MACA. No.1105/2017**_ _**4**_ **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:17251`** Counsel for the 3[rd ] respondent. 10. The Point: In this case the accident as well as valid insurance policy of the offending vehicle are admitted. One of the contentions raised by the learned counsel for the petitioner is regarding the income of the petitioner as fixed by the Tribunal. According to him, the petitioner was working as cook, earning Rs.10,000/- per month, but the Tribunal fixed her monthly income at Rs5,000/-. The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable. 11. As per the dictum laid down by the Hon’ble Supreme Court in the decision in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ [2011 (13) SCC 236], the notional income of a coolie, in the year 2013will come to Rs.9,000/-. Since the petitioner could not prove his job or income as claimed in the OP, in the light of a dictum laid down in the decision of the Hon’ble Supreme Court in **Ramachandrappa (supra)** , his notional income is liable to be fixed as that of a coolie, at Rs.9,000/-. 12. In the accident the petitioner sustained the following injuries: _**MACA. No.1105/2017**_ _**5**_ **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:17251 ``` _“Fracture dislocation of right acetabulum, femoral head fracture and fracture of anterior pubic rami (L)”_ 13. As per Exhibit A9 disability certificate the petitioner suffered 23.29% permanent physical disability. It was issued by PW1. However, PW1 noticed in Exhibit A9 that since the petitioner is a cook by profession, her loss of earning capacity as per Workmen's Compensation Act is 60%. The learned counsel for the petitioner also claimed that the functional disability of the petitioner is much more than 23.29% as assessed by PW1. 14. Petitioner appeared before the Court. She finds it difficult to walk freely. She cannot sit on the floor and she complains that after the accident she cannot continue her job as a cook. Because of the injuries sustained by the petitioner, her hip was completely replaced and from her appearance it is revealed that she could not continue her job as a cook, as was done before, I am inclined to fix her functional disability at 50%. 15. On the date of accident, the petitioner was aged 54 years. Therefore, 10% of the monthly income is to be added towards future _**MACA. No.1105/2017**_ **==> picture [57 x 57] intentionally omitted <==** _**6**_ ``` 2025:KER:17251 ``` prospects, as held in the decision in **National Insurance Co. Ltd v. Pranay Sethi** [(2017) 16 SCC 680] and the multiplier to be applied is 11, as held in **Sarla Verma v. Delhi Transport Corporation,** [(2009) 6 SCC 121]. In the above circumstances, the loss of disability will come to Rs.6,53,400/-. 16. Towards loss of earning, the tribunal has awarded only Rs.40,000/- being the income for 8 months @Rs.5,000/-. Since the notional income of the petitioner is re-fixed at Rs.9,000/-, towards loss of earning she is entitled to get a sum of Rs. 72,000/- (9000x8 months). 17. Towards the head ‘pain and sufferings’, the Tribunal has awarded Rs.60,000/- Towards 'loss of amenities of life' Rs.30,000/- was awarded and towards 'extra nourishment' Rs.2,500/- was awarded. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side. 18. The petitioner sustained very serious injuries in the accident and was treated as inpatient for 34 days. Because of the injuries sustained, the percentage of disability suffered and the length of treatment undergone by the petitioner, I hold that the compensation _**MACA. No.1105/2017**_ _**7**_ **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:17251 ``` awarded by the Tribunal on the heads ‘pain and sufferings’, 'loss of amenities of life' and 'extra nourishment' are on the lower side and hence they are enhanced to Rs.1,00,000/-, Rs.50,000/- and Rs.7,500/respectively. 19. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable. 20. Therefore, the petitioner/appellant is entitled to get a total compensation of Rs.13,23,856/-, as modified and recalculated above and given in the table below, for easy reference: |**Sl.**<br>**No.**|**Head of Claim**|**Amount awarded by**<br>**Tribunal (in Rs.)**|**Amount Awarded in**<br>**Appeal (in Rs.)**| |---|---|---|---| |1|Loss of earning|40,000/-|72,000/-| |2|Transportation expenses|8,000/-|8,000/-| |3|Extra nourishment|2,500/-|7,500/-| |4|Damage to clothing|500/-|500/-| |5|Bystander expenses|10,200/-|10,200/-| |6|Medical expenses|4,22,356/-|4,22,356/-| |7|Pain and suffering|60,000/-|1,00,000/-| |8|Compensation for disability|1,53,174/-|6,53,400/-| |9|Loss of amenities|30,000/-|50,000/-| ||**Total**|**7,26,730/-**|**13,23,956/-**| ||Enhanced Rs.5,97,226/-||| _**MACA. No.1105/2017**_ _**8**_ **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:17251 ``` 20. In the result, this Appeal is allowed in part, and Respondent No.3 is directed to deposit a total sum of Rs.13,23,856 (Rupees thirteen lakh twenty three thousand nine hundred and fifty six only), less the amount already deposited, if any, along with interest at the rate ordered by the Tribunal, from the date of the petition till deposit/realisation, with proportionate costs, within a period of two months from today. (Enhanced compensation will carry interest @8%). 21. On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioner, excluding court fee payable, if any, without delay, as per rules. Sd/- C. PRATHEEP KUMAR, JUDGE sou.