Nabeesa v. Sebastian Joseph @ Joy & Oriental Insurance Co. Ltd.

**MACA NO. 1900 OF 2009** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 8[TH] DAY OF JULY 2021 / 17TH ASHADHA, 1943 MACA NO. 1900 OF 2009** **AGAINST THE JUDGMENT IN OPMV 356/1998 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,KALPETTA, WAYANAD** ## **APPELLANT/PETITIONER:** NABEESA AGED 55 YEARS,W/O.MOIDEEN,ERIYADAN,, THALAPUZHA P.O.,MANANTHAVADY TALUK,, WAYANAD DISTRICT. BY ADV SRI.N.J.ANTONY ## **RESPONDENTS/RESPONDENTS:** 1 SEBASTIAN JOSEPH @ JOY AGE NOT KNOWN,S/O.JOSEPH,, NADUKKUDIYIL HOUSE,PAYYAMPALLY,, KARTIKULAM,MANANTHAVADY TALUK,, WYNAD DISTRICT.(DRIVER CUM OWNER OF THE, AUTORICKSHAW NO.KL-12/9750) 2 ORIENTAL INDIA INSURANCE CO.LTD. KANNUR CITY BRANCH,IST FLOOR,, RAZ BUILDING,SOUTH BAZAR,KANNUR., (POLICY NO.221916) BY ADV SMT.A.SREEKALA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1900 OF 2009** **2** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.356/1998 on the file of the Motor Accidents Claims Tribunal, Kalpetta. The respondents in the appeal were the respondents before the Tribunal. 2. The concise case in the claim petition, relevant for the determination of the appeal, is: on 11.12.1997 while the appellant was travelling in an autorickshaw bearing Reg.No.KL-12/9750 (vehicle) from Manathavady to Valliyoorkavu, when the vehicle reached the Janatha Stationary, the 1[st] respondent who was driving the vehicle lost control and hit against on a post. The appellant sustained serious injuries including a fracture on her right patella. She was treated as an inpatient for a period of three days at the District Hospital, Mananthavady, and thereafter, at the Medical College Hospital, Calicut. The appellant was a home maker and **MACA NO. 1900 OF 2009** **3** claimed a monthly income of Rs.1,500/-. The 1[st] respondent was also the owner of the vehicle, which was insured with the 2[nd] respondent. The appellant claimed a total compensation of Rs.1,50,000/- from the respondents. 3. The 1[st] respondent filed a written statement contending that he did not drive the vehicle in a rash manner, but in his attempt to save a child who negligently crossed the road, the vehicle lost control and hit the post. Therefore, there was no negligence on his part. 4. The 2[nd] respondent filed a written statement admitting that the vehicle had a valid insurance policy. Nevertheless, it was contended that the amount of compensation claimed was excessive. 5. The appellant examined herself as PW1 and Exts.A1 to A7 series were marked through her in evidence. The respondents produced and marked **MACA NO. 1900 OF 2009** **4** Exts.B1 to B3 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by permitting the appellant to recover an amount of Rs.11,682/- with interest at the rate of 6% per annum from the date of petition till the date of realisation along with proportionate costs from the 2[nd] respondent. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the 2[nd] respondent. 9. The sole question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 10. A Constitution Bench of the Hon'ble Supreme **MACA NO. 1900 OF 2009** **5** Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equitability. 11. Ext.A1 F.I.R and Ext.A4 AMVI report prove that the accident occurred solely on account of the negligence on the part of the 1[st] respondent. Admittedly, the vehicle was insured with the 2[nd] respondent. Therefore, the 2[nd ] respondent is liable to indemnify the liability of the 1st respondent caused due to the accident. ## **Notional income** 12. The appellant had claimed that she was a home maker earning a monthly income of Rs.1,500/-. The **MACA NO. 1900 OF 2009** ## **6** appellant was aged 55 years at the time of accident. The Tribunal for absolutely no reason fixed the notional income of the appellant at Rs.1,400/- per month. According to me, the amount that was claimed by the appellant as notional income is reasonable. Therefore, I re-fix the notional income of the appellant at Rs.1,500/- as claimed for in the claim petition. ## **Disability** 13. The appellant had produced Ext.A6 disability certificate which shows that she had a disability at 7%. However, the Tribunal for the reason that the appellant had not examined the Doctor who issued Ext.A6 disability certificate fixed and the disability of the appellant at 3%, that too after seeing the appellant who was examined as PW1. I do not find any error in the disability assessed by the appellant. Accordingly, I confirm the finding with respect to the permanent disability of the appellant at 3%. **MACA NO. 1900 OF 2009** **7** ## **Loss of earnings** 14. It is on record as per Ext.A3 wound certificate and Ext.A6 disability certificate that the appellant had sustained an injury on her patella and she had to wear a cast for a period of more than one month. Therefore, I hold that the appellant was incapacitated for a period of three months. In such circumstances, in view of fixing of the notional income of the appellant at Rs.1,500/- I re-fix the compensation for 'loss of earnings' at Rs.4,500/instead of Rs.1,000/- fixed by the Tribunal. ## **Loss due to disability** 15. The Tribunal had fixed the multiplier at 8. In view of the fact that the appellant was aged 55 years and taking into account the law laid by the Hon'ble Supreme Court in **Sarala Verma v Delhi Transport Corporation** [2010(2) KLT 802 (SC)] , the correct multiplier is '11'. **MACA NO. 1900 OF 2009** ## **8** Thus, in view of the re-fixation of the notional income of the appellant, fixing the relevant multiplier at '11' and the disability at 3%, I hold that the appellant is entitled for compensation under the head 'loss due to disability' at Rs.5,940/- instead of Rs.4,032/ fixed by the Tribunal. ## **Compensation for pain and suffering** 16. The appellant had claimed an amount of Rs.25,000/- under the head 'pain and suffering'. However, the Tribunal only awarded an amount of Rs.5,000/-. Considering the injury sustained by the appellant, as discernible from Ext.A3 wound certificate and Ext.A6 disability certificate, and that she was hospitalised for a period of three days, I hold that the appellant is entitled for compensation under the head 'pain and suffering' at Rs.10,000/-, i.e, an enhancement of Rs.5,000/-. **MACA NO. 1900 OF 2009** **9** ## **Loss of earning power/amenities** 17. The appellant had claimed an amount of Rs.25,000/- under the above said head. Nonetheless , the Tribunal did not award any amount under the said head. Considering the nature of injuries sustained by the appellant and that she was incapacitated for a period of three months and she now suffers from a permanent disability of 3%, I hold that the appellant is entitled for compensation under the head 'loss of amenities' at Rs.5,000/-. ## **Other heads of claim** 18. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 19. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decision, I am of the definite opinion that the **MACA NO. 1900 OF 2009** **10** appellant is entitled for enhancement of compensation as modified 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<br>and<br>recalculat<br>ed by this<br>Court| |---|---|---|---| |1|Loss of earning|1,000|4,500| |2.|Transportation|600|600| |3.|Clothing|250|250| |4.|Extra-nourishment|300|300| |5.|Medical expenses|500|500| |6.|Pain and suffering|5,000|10,000| |7.|Loss of amenities|---|5,000| |8.|Loss due to disability|4,032|5,940| ||Total|11,682<br>======|27,090<br>======| **MACA NO. 1900 OF 2009** ## **11** In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.15,408/- with interest at the rate of 6% per annum on the enhanced compensation from the date of petition till the date of deposit, after deducting the interest for a period of 554 days, i.e, the period of delay in preferring the appeal and as ordered by this Court on 30.3.2021 in C.M.Appli. No.2185/2009, and proportionate costs. The 2[nd] respondent shall deposit the enhanced compensation awarded in the appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The disbursement of the compensation to the appellant/petitioner shall be done by the Tribunal, in accordance with law. ma/08/07/2021 Sd/- **C.S.DIAS, JUDGE**