Padmakumary Amma v. Sunil Kumar and The Divisional Manager, National Insurance Co. Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` WEDNESDAY, THE 5[TH] DAY OF APRIL 2023 / 15TH CHAITHRA, 1945 ``` ``` MACA NO. 61 OF 2014 ``` ``` AGAINST THE AWARD IN OPMV 717/2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM ``` ## `APPELLANT/PETITIONER:` ``` PADMAKUMARY AMMA, AGED 50 YEARS, W/O.RADHAKRISHNA PILLAI, UPPANKULATHU THEKKATHIL, CHATHINAMKULAM, CHANDANATHOPPE P.O, KOLLAM DISTRICT. ``` ``` BY ADVS. SRI.V.JAYAPRADEEP SRI.SHANE WILFRED MORRIS ``` ## `RESPONDENT/RESPONDENTS:` ``` 1SUNIL KUMAR SURESH BHAVAN, MARUTHADI P.O, KOLLAM DISTRICT, PIN 691 003. 2THE DIVISIONAL MANAGER NATIONAL INSURANCE CO.LTD, KOLLAM 691 001. ``` ``` BY ADVS. SRI.P.V.CHANDRA MOHAN SRI.P.G.JAYASHANKAR SRI.P.JAYASANKAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 61 OF 2014 ``` ``` 2 ``` ## `JUDGMENT` ``` The appellant was injured in a road accident ``` ``` on 06.03.2012 - when the offending Autorikshaw, driven in a rash and negligent manner, hit her while she was awaiting a bus in a public bus stand. She resultantly fell down and sustained grievous injuries; whereupon, she filed OP(MV)No.717/2012 before the Motor Accidents Claims Tribunal, Kollam, seeking compensation of ``` ``` an amount of Rs.3,00,000/-, but which has been allowed only to a sum of Rs.83,500/-. She thus ``` ``` calls into a question the quantum of compensation allowed by the learned Tribunal in her favour. ``` ``` 2.Smt.Arshija – learned counsel for the appellant, argued that the reason why the compensation has been fixed so low by the learned Tribunal in favour of her client is because it has adopted her notional income to be Rs.6,000/- ``` ``` MACA NO. 61 OF 2014 ``` ``` 3 ``` ``` after she turns 56 years in age, under the impression that she will retire at that age. She conceded that her client was working as a Government School Teacher and was 50 years at the time of the accident and that she would normally retire at the age of 56 years. She argued that, however, this was no reason for the learned Tribunal to have fixed the notional income to be a mere Rs.6,000/-, which has absolutely no nexus to the actual salary earned by her client, which has been proved to be more than Rs.30,000/-. ``` ``` 3.Smt.Arshija then submitted that, going by the medical evidence on record, the compensation awarded by the learned Tribunal under the heads ``` ``` “Bystander Expenses” and “Pain and Suffering” is extremely low; while, denial of compensation under the head “Loss of Amenities” is illegal. She thus prayed that this appeal be allowed. ``` ``` MACA NO. 61 OF 2014 ``` ``` 4 ``` ``` 4.Sri.P.G.Jayashankar – learned Standing Counsel for the Insurance Company, on the other hand, submitted that the computations adopted by the learned Tribunal in arriving at the compensation, is without error and thus pleaded ``` ``` that this appeal be dismissed. ``` ``` 5.I have examined the afore rival ``` ``` contentions of the parties and have tested them on the worth of the evidence on record – copies of which have been made available to this Court by the learned counsel for the parties across the Bar, with the express consent that they can be acted upon, without dispute. ``` ``` 6.The uncontroverted evidence on record establishes that the appellant was 50 years old and working as a Government School Teacher at the time of the accident, on 06.03.2012. She had claimed her monthly income to be more than ``` ``` MACA NO. 61 OF 2014 ``` ``` 5 ``` ``` Rs.30,000/-; and thus claimed compensation of Rs.3,00,000/-. However, she has not led any evidence to show that she had suffered any loss of earnings, on account of the injuries or the treatment that she had to suffer, because she was ``` ``` in a permanent employment, the salary of which ``` ``` was being paid by the Government. The learned Tribunal, therefore, correctly found that the appellant would suffer loss of earnings only after she retires at the age of 55 or 56, as the case may be; and whereupon, adopted the multiplier of nine, as per Sarla Verma v. Delhi Transport Corporation[2010 (2) KLT 802 SC], ``` ``` applicable to a person of that age, and reckoned ``` ``` her notional income to be Rs.6,000/- per month. In fact, even without any proof, the learned Tribunal has adopted 6% to be the disability suffered by the appellant. ``` ``` MACA NO. 61 OF 2014 ``` ``` 6 ``` ``` 7.However, I must record that adoption of the notional income by the learned Tribunal cannot appeal to this Court because, even assuming that the petitioner would not earn anything after her retirement, Ramachandrappa v. ``` ``` Manager, Royal Sundaram Alliance Insurance ``` ``` Company Limited. [(2011) 13 SCC 236], postulates that a minimum amount of Rs.8,500/- must be reckoned as notional income, since this is a figure sanctioned even to a person who was a “Coolie”, or one who is with an unascertainable ``` ``` income, in that year. The factum of the appellant ``` ``` being a teacher certainly makes her eligible to a higher notional income, going byRajani v. ``` ``` Oriental Insurance Company [(2022) 5 KLT online ``` ``` 1012 SC], which mandates that in the case of a person who is found to be not a “Coolie”, a more robust has to be taken. I am, therefore, of the ``` ``` MACA NO. 61 OF 2014 ``` ``` 7 ``` ``` firm view that an amount of Rs.10,000/- would be more apposite as her notional income, which is mere Rs.1,500/- more than what has been ``` ``` authorised by Ramachandrappa (supra) in the case of a “Coolie”. ``` ``` 8.The medical evidence on record, particularly Ext.A4 – Wound Certificate, establishes that the appellant sustained fracture to femur and had to be hospitalised for five days. The learned Tribunal has awarded compensation under the head “Bystander Expenses” ``` ``` only to a sum of Rs.1,000/-, reckoning Rs.200/- per day for such purpose; along with a further amountofRs.1,000/-,towards“Extra ``` ``` Nourishment”. I am of the view that even going by the fiscal standards of the year 2012, the “Bystander Expenses” would be much higher than Rs.200/- per day and therefore, propose to revise ``` ``` MACA NO. 61 OF 2014 ``` ``` 8 ``` ``` it as being Rs.350/- per day. ``` ``` 9.Adverting to the fact that the appellant had sustained fracture of femur and that she had to be treated, the learned Tribunal has granted compensation of Rs.20,000/- towards “Pain and Suffering”. But, taking note of the fact that the appellant was a lady who would have suffered agonizing pain and strain, at least during the time when the fracture had united, I am sure that she is entitled to a marginally higher amount under the above said head, especially because she had to take care of her family also during the said period. I propose an amount of Rs.30,000/- in such regard. ``` ``` Resultantly, this appeal is partly allowed in the following manner: ``` ``` a)The compensation under the head “Disability” is revised to Rs.64,800/-, from ``` ``` MACA NO. 61 OF 2014 ``` ``` 9 ``` ``` Rs.38,880/- granted by the learned Tribunal, reckoning the notional income of the appellant to be Rs.10,000/- per month with the multiplier of nine being adopted, taking that she would retire at the age of 56 years and accepting her percentile of disability to be 6%, as found by the learned Tribunal and which is without contest. ``` ``` b)The compensation under the head ``` ``` “Bystander Expenses” is enhanced to Rs.1,750/-, from Rs.1,000/-, reckoning Rs.350/- as per day expense for five days of hospitalisation. ``` ``` c)The compensation under the head “Pain and Suffering” is enhanced to Rs.30,000/-, from ``` ``` Rs.20,000/- as awarded by the learned Tribunal. ``` ``` d)In all other heads, the compensation ``` ``` awarded by the Tribunal and its findings will remain unaltered. ``` ``` MACA NO. 61 OF 2014 ``` ``` 10 ``` ``` e)Consequently, the appellant will be ``` ``` entitled to recover the compensation, as enhanced ``` ``` by this Court, from the respondent – Insurance ``` ``` Company, along with interest at the rate of 7.5% ``` ``` from the date of filing of the claim until it is realised. ``` ``` f)The appellant will also be entitled to ``` ``` proportionate costs on the enhanced amounts as ordered by the Tribunal. ``` ``` g)In view of the afore, the amount as ``` ``` fixed above shall be deposited by the Insurance ``` ``` Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ## `JUDGE` ``` SAS ```