Parukuttiamma v. Kamalamma, Ajikumar and The Divisional Manager, Kerala State Insurance Department

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 25[TH] DAY OF JANUARY 2022 / 5TH MAGHA, 1943 ``` ``` MACA NO. 2093 OF 2011 ``` ## **`AGAINST THE AWARD IN OPMV 713/2004 DATED 24.02.2011 OF MOTOR ACCIDENT`** ## **`CLAIMS TRIBUNAL ,PUNALUR`** ## **`APPELLANT/S:`** ``` PARUKUTTIAMMA D/O KUNJUKUTTIAMMA, INDIRA SADANA, VAYYANA, ITTIVA VILLAGE, KOTTARAKKARA TAULK. BY ADVS. SRI. K.SIJU SMT.BINDU GEORGE ``` ## **`RESPONDENT/S:`** ``` 1KAMALAMMA MANGALYA, KOOTTIKKADA, THATTAMALA, KOLLAM-691 020. 2AJIKUMAR S/O SIVARAMAN PILLAI, AJIMANDIRAM, KOTTIKKADA, KOLLAM- 691 021. 3THE DIVISIONAL MANAGER KERALA STATE INSURANCE DEPARTMENT. KOLLAM- 691 001. ``` ``` BY ADV GOVERNMENT PLEADER ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2093 OF 2011 ``` ## JUDGMENT The appellant was the petitioner in O.P.(MV)N0.713/2004 on the file of the Motor Accident Claims Tribunal, Punalur. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by her in an accident on 24.11.2003. It was her case that, while she was traveling in a bus bearing registration No. KL-2N/9912 through Anchal – Kadakkal road, due to the negligent driving of the bus by the 2[nd] respondent, she fell down from the bus. She sustained serious injuries, including a fracture of her hip. She was treated at St.Johns hospital and, thereafter, at the Medical College Hospital, Thiruvananthapuram, for a period of 22 days. She was a housewife. The bus was owned by the 1[st] respondent insured with the 3[rd] respondent. Hence, the appellant claimed a compensation of Rs.1,25,000/- from the respondent. 3. The respondents 1 and 2 did not contest the proceeding and were ``` MACA NO. 2093 OF 2011 ``` ``` -3- ``` set ex-parte. 4. The 3[rd] respondent had filed a written statement admitting that the bus had a valid insurance coverage. It was stated that the 2[nd] respondent was careful in driving the bus and it was due to the negligence of the appellant, who jumped out of the bus, that she sustained injuries. Hence, the claim petition be dismissed. 5. The appellant had produced and marked Exts.A1 to A8 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analyzing the pleadings and the materials on record, allowed the claim petition in part, by permitting the appellant to recover from the 3[rd] respondent an amount of Rs.13,250/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri. Siju Kamalasanan, the learned Counsel appearing for the appellant / petitioner and the learned Government Pleader appearing for the 3[rd] respondent insurer. ``` MACA NO. 2093 OF 2011 ``` ``` -4- ``` 9. The point that arises for consideration of the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## Negligence and liability 10. Ext.A6 charge sheet filed by the Kadakkal Police in Crime No.503/2003 proves that the accident occurred due to the negligence of the 2[nd] respondent. Indisputably, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the bus. The respondents have not let in any evidence to discredit Ext.A6 charge sheet. The 3[rd] respondent has also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## Income 11. The appellant had claimed that she was 70 years of age and was a housewife. She claimed her notional income at Rs.2,500/-. The Tribunal did not fix the notional monthly income of the appellant for the reason that she had not produced any certificate to prove her disability. The ``` MACA NO. 2093 OF 2011 ``` ``` -5- ``` course adopted by the Tribunal is erroneous and wrong. 12. Taking into account the fact that the appellant was a housewife and that the accident occurred in the year 2003 and following the principles laid down by the Hon’ble Supreme Court in Arunkumar Agarwal v. National Insurance Company Ltd 2010 (4) KLT 230 , I fix the notional monthly income of the appellant at Rs.2,500/- as claimed in the claim petition. ## Loss of earnings 13. It is evident from Ext.A7 wound certificate and A8 discharge card that the appellant had sustained a fracture of her right hip. She was treated as an inpatient at the Medical College Hospital, Thiruvananthapuram, for a period of 22 days. She underwent a surgery on 06.12.2003, to unite the fracture. In the above circumstances, I hold that the appellant was indisposed for a period of six months. 14. In view of the fixation of the notional monthly income of the appellant at Rs.2,500/-, I award her an amount of Rs.15,000/- towards ‘loss of earnings’. ``` MACA NO. 2093 OF 2011 ``` ``` -6- ``` ## - B y stander expenses and extra nourishment. 15. It is undisputed that the appellant was treated as inpatient for a period of 22 days. The Tribunal has awarded only an amount of Rs.1,650/- towards ‘by-stander expenses’ and Rs.1,100/- towards ‘extra nourishment’. The said amounts are too low. 16. On a consideration of the fact that the appellant was treated as inpatient for a period of 22 days and the accident occurred in the year 2003, I award her an amount of Rs.300/- per day for a period of 22 days towards ‘by-stander expenses’, which comes to Rs.6,600/-, and Rs.150/per day for a period of 22 days for ‘extra nourishment’, which works out to Rs.3,300/-. ## P ain and sufferings and loss of amenities 17. The appellant had claimed an amount of Rs.10,000/- towards ‘pain and sufferings’ and Rs.55,000/- towards ‘loss due to disability’. The Tribunal has awarded only an amount of Rs.6,000/- under the head pain and sufferings. 18. Taking into account the fact that the appellant had sustained a ``` MACA NO. 2093 OF 2011 ``` ``` -7- ``` fracture of her hip, that she was treated as inpatient for a period of 22 days and that she was indisposed for a period of six months, I award her a further amount of Rs.4,000/- under the head ‘pain and sufferings’ and Rs.5,000/- towards ‘loss of amenities’. 19. With respect to the compensation awarded under the head ‘transportation expenses’, ‘damage to clothing’ and ‘cost of medicines’, I find that the Tribunal has awarded reasonable and just compensation. 20. On an overall re-appreciation of the pleadings and the materials on record, and the law referred to the above said decision, I hold that the appellant / petitioner is entitled for enhancement of compensation as modified and recalculated as above and given in the table below for easy reference. |Sl<br>No.|Head of claim|Amount awarded<br>by the Tribunal<br>(in Rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---| |1|Loss of earnings|Nil|15,000/-| |2|Transportation expenses|2,500/-|2,500/-| |3|Damage to Clothing|1,000/-|1,000/-| |4|Medical expenses|1,000/-|1,000/-| |5|By-stander expenses|1,650/-|6,600/-| ``` MACA NO. 2093 OF 2011 ``` ``` -8- ``` |6|Extra nourishment|1,100/-|3,300/-| |---|---|---|---| |7|Pain and sufferings|6,000/-|10,000/-| |8|Loss of amenities|Nil|5,000/-| ||Total|13,250/-|44,400/-| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.31,150/- (Rupees Thirty One Thousand One Hundred and Fifty only) with interest on the enhanced compensation at the rate of 7% per annum from the date of petition till the date of deposit, after deducting interest for a period of 104 days, i.e., the period of delay in filing the appeal and as ordered by this Court in C.M.Appln.No.3094/2011 dated 23.12.2011, and a cost of Rs.5,000/-. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. ``` Sd/- ``` ``` C.S.DIAS ``` ``` JUDGE ``` uu/27.01.2022