Pankajakshy Amma G. Mangalalayam Veedu v. Asalam Sherief Panthuvallil House; Mohammed Salim H. Panthuvallil; The New India Assurance Co. Ltd.

1 MACA No.460 of 2011 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 5[TH] DAY OF OCTOBER 2021 / 13TH ASWINA, 1943 MACA NO. 460 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 2059/2000 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL , MAVELIKKARA, ALAPPUZHA APPELLANT/S:** PANKAJAKSHY AMMA.G. MANGALALAYAM VEEDU, ARNOOTTIMANGALAM MURI,, VETTIYAR. BY ADV SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) ## **RESPONDENT/S:** 1 ASALAM SHERIEF PANTHUVALLIL HOUSE, MULAKUZHA,, CHENGANNUR-689 505. 2 MOHAMMED SALIM H. PANTHUVALLIL THEKKETHIL, MULAKUZHA P.O.,, CHENGANNUR-689 505. 3 THE NEW INDIA ASSURANCE CO. LTD. REP. BY ITS DIVISIONAL MANAGER, KOCHI-682 001. BY ADVS. SRI.LAL K.JOSEPH SHRI.SURESH SUKUMAR ## **THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.460 of 2011 ## **C.S.DIAS, J. ====================== MACA No.460 of 2011** ## **====================== Dated this the 5[th] day of October, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.2059/2000 on the file of the Motor Accidents Claims Tribunal, Mavelikara. 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 that she sustained in an accident on 7.12.1999 It was her case that, on the said day, while she was waiting near the Kulanada S.N Trust Hospital in Pandalam-Chengannur road, a motor cycle bearing registration No.KL-3B/146, driven by the first respondent in a rash and negligent manner, hit the 3 MACA No.460 of 2011 appellant. The appellant was employed as a Postwoman in the P & T Department, Government India and drawing a monthly income of Rs.5,000/-. She had sustained serious injuries including hemorrhagic contusion in the left temporal lobe. The appellant was treated as inpatient at the NSS Medical Mission Hospital, Pandalam and thereafter at the Pushpagiri Hospital, Thiruvalla for the period from 7.12.1999 to 14.12.1999 and 21.4.2003 to 25.4.2003. The motor cycle was owned by the second respondent and insured with the third respondent. The appellant claimed a compensation of Rs.4,06,500/- from the respondents, which was limited to Rs.4,00,000/-. 3. The respondents 1 and 2 had filed a joint written statement contending that the accident occurred due to the negligence of the appellant. It was contended that the motor cycle had a valid insurance coverage and, therefore, it was the third respondent who was to indemnify the liability of the second respondent. 4 MACA No.460 of 2011 4. The third respondent had filed a written statement contending that the appellant had no cause of action to file the claim petition. Even though the motor cycle had a valid insurance coverage, the accident occurred due to the negligence of the appellant. The third respondent also disputed the age, income and occupation of the appellant. 5. The appellant was examined as PW1 and Exts A1 to A18 were marked in evidence. The respondents did not let in any evidence. 6. The Tribunal, after considering the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to realise from the third respondent an amount of Rs.1,59,250/- with interest @ 7.5% per annum from the date of petition till the date of realization. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 5 MACA No.460 of 2011 8. Heard; Sri.George Varghese Perumpallikuttiyil, the learned counsel appearing for the appellant/petitioner and Sri.Lal K.Joseph, the learned counsel appearing for the third respondent /insurer. 9. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Ext A4 charge-sheet filed by the Mannar Police Station in Crime No. 117/2000 substantiates that the accident occurred due to the negligence of the first respondent. Admittedly, the second respondent was the owner and the third respondent was the insurer of the motor cycle. The third respondent has admitted that the motor cycle had a valid insurance coverage and has not proved that the second respondent had violated the policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the 6 MACA No.460 of 2011 accident. ## **Loss of earnings** 11. The appellant was employed as Postwoman in the P & T Department, Government of India. She stated that she was aged 52 years and had a monthly income of Rs.5,000/-. Therefore, the appellant had not sustained any loss of income other than the loss of income as certified in Ext A17 series documents, wherein it is found that the appellant had sustained loss of earnings of Rs.23,947/- for the period from 22.7.2000 to 30.10.2000 and an amount of Rs.44,192/- for the period from 16.7.2003 to 13.3.2004, totalling to an amount of Rs.68,139/-. 12. The Tribunal has awarded the reimbursement of the above amounts. There is no error in the course adopted by the Tribunal, which is perfectly justifiable and in accordance with law. 13. The disputed area is with regard to the 7 MACA No.460 of 2011 compensation for loss due to disability. 14. Although the appellant had produced Ext A18 disability certificate, wherein it is stated that the appellant has a disability of 20%, the Tribunal had refused to accept the same due to non-examination of the Doctor who issued the certificate. 15. In **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)]** , the Hon'ble Supreme Court has categorically held that when the Tribunal is dissatisfied with the disability certificate produced before it, it is the bounden duty of the Tribunal to refer the claimant injured to a duly constituted Medical Board. If the same is not done, the Tribunal cannot just shun away the disability certificate produced by the injured claimant. 16. Moreover, in the instant case, from Ext A14 series documents, it is seen that the appellant had submitted a representation to her employer requesting for retirement under invalidation, due to the injury that she 8 MACA No.460 of 2011 sustained in the accident. She was referred by her employer to a Medical Board. The Medical Board after examining the appellant, came to a conclusion that she should avoid prolonged walking and she is fit to do light office work. Nevertheless, due to the non-vacancy in the post of Departmental Stamp Vendors, the appellant was not given an alternate posting. She was advised to continue in the present post till the age of superannuation. 17. Ext A14 series documents read with Ext A18 disability certificate and Ext A9 series medical records, prove that the appellant had suffered disability due to the accident. In the above circumstances, I hold that the assessment made by the Doctor in Ext A18 certificate, assessing the appellant's functional disability at 20% has to be accepted on its face value, specially for the reasons that the Tribunal had not referred the appellant to a duly constituted Medical Board. Hence I fix the functional disability of the appellant at 20%. 9 MACA No.460 of 2011 18. As seen from Ext A14 series documents, the appellant was born on 17.8.1945 and she retired from service on attaining the age of superannuation on 16.8.2005. Therefore, the multiplier that has to be adopted is that of a person aged 60 years. Hence, the relevant multiplier is '9', following the ratio in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121].** 19. Since the appellant was a Government servant and had retired from service after attaining the age of superannuation, necessarily she would be drawing pension. It is her case that she would not be able to take up any further employment due to the injuries sustained by her. Even while the appellant was in service, she was drawing a salary of Rs.5,000/-. Thus, if she takes an assignment after retirement, the maximum salary after deducting the income from her pension, would only be around Rs.3,000/- per month. Hence, I fix the notional 10 MACA No.460 of 2011 monthly income of the appellant, after retirement, at Rs.3,000/- per month. ## **Loss due to disability** 20. Taking into account the aforementioned factors, namely, the monthly income of the appellant at Rs.3,000/-, the functional disability at 20% and the multiplier at '9', I hold that the appellant is entitled for compensation for loss due to disability at Rs.64,800/-. ## **Loss of amenities** 21. As the appellant had sustained functional disability of 20%, she lost her earnings for a period of 234 days and was treated as inpatient in two spells for a period of 11 days, I hold that the appellant is entitled for compensation for loss of amenities at Rs.15,000/-. ## **Other heads of compensation** 22. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 11 MACA No.460 of 2011 23. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation of Rs.29,800/-, that is, Rs.14,800/- towards enhanced compensation towards loss due to disability and Rs.15,000/- towards loss of amenities. In the result, the appeal is allowed, in part, by enhancing the compensation by an amount of **Rs.29,800/-** (Rupees Twenty Nine Thousand Eight Hundred 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 deposit, after deducting interest for a period of 202 days as ordered by this Court on 13.9.2021 in C.M Appln 1/2011, and a cost of Rs.4,000/-. The third respondent is ordered to deposit the enhanced compensation with interest and costs before the Tribunal within a period of sixty days from the 12 MACA No.460 of 2011 date of receipt of a certified copy of the judgment. The Tribunal shall on the deposit being made by the third respondent, disburse the enhanced compensation to the appellant in accordance with law. sd/- sks/5.10.2021 **C.S.DIAS, JUDGE**