Omana Ramachandran v. Shihabudeen B.K. and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 9[TH] DAY OF NOVEMBER 2023/18TH KARTHIKA, 1945 ``` ## **`MACA NO. 1110 OF 2010`** ``` OPMV 587/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD ``` ## **`APPELLANT/PETITIONER:`** ``` OMANA RAMACHANDRAN, W/O.RAMACHANDRAN AGED 35, R/AT JAYAPURAM, MUNNAD.P.O.,, (VIA) CHENGALA, KASARGOD TALUK, KASARGOD DISTRICT. BY ADV SRI.SUNIL NAIR PALAKKAT ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 SHIHABUDEEN.B.K AND OTHERS KANHIRATHIUNGAL, P.O. BEDADUKA,, CHENGALA, KASARGOD TALUK & DIST.` - `2 VINEETHA AGED 35 DEAD 3 UNITED INSURANCE CO. LTD. BRANCH OFFICE KASARGOD.` - `4 NARAYANAN AGED ABOUT 43 S/O. CHIRUTHA, KALATHIL HOUSE, BEDAKAM,, BEDAKAM VILLAGE, P.O. BEDAKAM, KASARGOD TALUK &, DIST. BY ADV SMT.R.REMA` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.1110/2010 : 2 : ## JUDGMENT The appellant is the petitioner in OP(MV) No.587/2005 on the files of the Motor Accident Claims Tribunal, Kasaragod. 2. The said claim petition was submitted by her seeking compensation for the injuries sustained to her in a motor accident that occurred on 11.03.2005. The accident occurred when the autorickshaw in which the appellant was travelling collided with a jeep bearing registration No.KL 14 C 3865 driven by the 1[st] respondent herein. The said vehicle was insured with the 3[rd] respondent insurance company. According to the appellant, she was a housewife aged 35 years, and she sustained serious injuries in the accident, which resulted in physical disablement. The claim petition was submitted in such circumstances. 3. The 1[st] respondent submitted a written statement contending that the accident occurred not due to the negligence on his part in driving the jeep. According to him, the accident occurred due to the negligence of the driver of the autorickshaw. The 2[nd] respondent, the owner of the vehicle died during the M.A.C.A. No.1110/2010 : 3 : pendency of the claim petition and accordingly, additional 4[th] respondent was impleaded as the legal heir. The 3[rd] respondent filed a written statement admitting the coverage of the insurance policy but denied the liability on various grounds. They also disputed the negligence as well as the quantum of compensation. The 4[th] respondent filed a written statement admitting the ownership of the vehicle by the 2[nd] respondent. He also disputed the negligence and quantum of compensation. 4. The evidence in this case consists of Exts.A1 to A6 from the side of the appellant. The disability certificate issued by the District Medical Board was marked as Ext.X1. No evidence was adduced by the respondents. 5. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence of the 1[st] respondent and the 3[rd] respondent, being the insurer of the said vehicle, was held liable to pay the compensation. The quantum of compensation was fixed as Rs.1,94,500/- and the said amount was directed to be deposited by the 3[rd] respondent insurance company along with interest at the rate of 7.5% per annum from the date of petition till realization. This appeal is submitted by the M.A.C.A. No.1110/2010 : 4 : appellant seeking enhancement of compensation as she was dissatisfied with the quantum of compensation awarded by the tribunal. 6. Heard Sri. Sunil Nair Palakkat, the learned counsel appearing for the appellant and Smt. R. Rema, the learned counsel appearing for the 3[rd] respondent insurance company. 7. The main dispute is relating to the quantum of compensation. It was contended that, in Ext.X1 certificate, the Medical Board certified the disability of the appellant, but the same as such was not accepted by the tribunal, and instead, the tribunal fixed the extent of physical disability as 10%. Even though the monthly income of Rs.15,000/- was claimed, it was rejected by the tribunal on the ground that the appellant was a housewife and therefore, a lump sum amount of Rs.50,000/- was awarded by the tribunal, under the head of loss of earning capacity and loss of earning, together. According to the learned counsel for the appellant, the said computation was erroneous, and it requires reconsideration. 8. Even though the learned counsel for the insurance company opposes the said contention, after perusing the records, M.A.C.A. No.1110/2010 : 5 : I find some force in the contention put forward by the learned counsel for the appellant. Of course, it is true that in Ext.X1, the disability of the appellant has been certified, but as rightly found by the tribunal, the disability certified therein was concerning certain limbs and the whole body disability was not certified. Therefore, apart from the fact that the physical disability resulted from the injuries sustained in the accident, no reliance thereon can be placed upon Ext.X1. However, the said certificate would indeed indicate that she suffered physical disability, and therefore, compensation has to be granted to her. The tribunal has considered the percentage of whole body disability as 10%, taking note of the contents of Ext.X1 and the injuries which she sustained in the accident, as is discernible from the other medical documents. 9. After carefully going through the aforesaid aspects, the nature of injuries as is discernible from the records and also the contents of Ext.X1, I am of the view that the percentage of whole body disability can be taken as Rs.15%. This is particularly because Ext.X1 indicates the shortening of forearms and restrictions in the movement of various limbs. Therefore, I deem M.A.C.A. No.1110/2010 : 6 : it appropriate to fix the percentage of disability as 15% for computation for compensation for disability. 10. The next element to be determined is the monthly income. Considering the fact that the appellant was a housewife, no monthly income was taken for the purpose of assessing the compensation for disability, and instead, a lump sum compensation was fixed. In my view, such a computation was not a proper procedure. Of course, it is true that, being a housewife, she may not be earning any amount as such, but the services rendered by her to the entire members of the family cannot be ignored. The said services would undoubtedly help the earning members of the family to pursue their respective avocations, thereby ensuring regular income for the family. Therefore, by taking into account such services, a reasonable amount has to be fixed as monthly income, and compensation has to be awarded for loss of earning capacity. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236], for an ordinary worker, monthly income was fixed as Rs.4,500/- in respect of an accident occurred in the year 2004 even in the absence of any evidence. In this case, the accident occurred in M.A.C.A. No.1110/2010 : 7 : the year 2005, and therefore, I am of the view that a reasonable amount of Rs.5,000/- can be taken in this case for the purpose of computation of compensation. 11. Thus, while assessing the compensation for loss of earning power owing to the physical disability, with a monthly income of Rs.5,000/- and the physical disability as 15%, the compensation under this head would come to Rs.1,44,000/(5000x 12x16x15/100]. The amount already awarded by the tribunal under this head is Rs.50,000/- and therefore, the additional amount receivable by the appellant would come to Rs.94,000/-. Similarly, the tribunal has not awarded any compensation under the head of loss of earnings. Instead, the tribunal awarded a lump sum compensation of Rs.50,000/towards loss of earnings and loss of earning capacity combined. I have already appropriated the said amount of Rs.50,000/towards the compensation awarded for loss of earning capacity owing to physical disability. Therefore, a separate compensation needs to be granted towards loss of earnings. Considering the nature of their physical disabilities and the treatment she had undergone, it appears that she must have been prevented from M.A.C.A. No.1110/2010 : 8 : pursuing her duties for at least a period of three months. Therefore, the compensation for loss of earning capacity can be granted for a period of three months. Thus, the amount to be awarded under this head would come to Rs.15,000/-. 12. When moving on to the other heads, it can be seen that towards pain and suffering, the amount awarded by the tribunal is Rs.17,000/- only. Considering the nature of the injuries and the treatment which she availed, I am of the view that the same can be fixed as Rs.25,000/- and therefore, the appellant would be entitled to a further sum of Rs.8,000/- under this head. Similarly, no amount is seen granted towards the loss of amenities. The records would indicate that the appellant suffered severe injuries, and it resulted in physical disablement as well. Therefore, I am of the view that, an amount of Rs.25,000/- would be a reasonable amount which can be awarded under the said head and it is ordered accordingly. 13. The learned counsel for the appellant further points out that, as per Ext.A4 series, the appellant had produced medical bills for a total sum of Rs.1,46,583/-. However, the tribunal rejected the bill Nos.1, 18 to 123 and 131 which are for M.A.C.A. No.1110/2010 : 9 : Rs.46,500/- on the ground that the said amounts were towards professional charges. It was pointed out that in the absence of any evidence, those bills cannot be considered. However, the said finding is erroneous. The materials produced before the tribunal would indicate that the appellant availed a prolonged treatment for the injuries sustained. Therefore, the said treatment cannot availed by her without the services of a Doctor, and necessarily, the said services would incur expenses of a substantial nature. Therefore, the amount of Rs.46,500/- could not have been denied to the appellant, as the same also forms part of the medical expenses she incurred. Therefore, the amount of Rs.46,500/- denied by the tribunal is to be awarded to the appellant, and it is ordered accordingly. Thus, the total additional compensation receivable by the appellant is determined as Rs.1,88,500/- (94000 + 15000 + 8000 + 25000 + 46500). In the light of the aforesaid findings and observations, this appeal is allowed. The award dated 23.01.2010 passed by the Motor Accident Claims Tribunal, Kasaragod in OP(MV) : 10 : M.A.C.A. No.1110/2010 No.587/2005 is modified by awarding an additional amount of Rs.1,88,500/- (Rupees one lakh eighty-eight thousand five hundred only), and the 3[rd] respondent insurance company 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. Sd/ZIYAD RAHMAN A.A. JUDGE ncd/