Pathumma v. Somasundaran, Raveendranathan & The Oriental Insurance Co. Ltd.

**MACA NO. 402 OF 2011** **1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 7[TH] DAY OF JANUARY 2022 / 17TH POUSHA, 1943** **MACA NO. 402 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 344/2007 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** PATHUMMA, W/O.ALAVI, MANHALINGAL HOUSE, KUNDADI, PANAMANNA POST, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADVS. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI ## **RESPONDENTS/RESPONDENTS:** 1 SOMASUNDARAN, S/O.GOPALAKRISHNAN, MOORKKATHU VEEDU, THRIKKADEERI, OTTAPALAM TALUK, PIN-679 502. 2 RAVEENDRANATHAN, CHURATHIL HOUSE 4/21, THRIKKADEERI, OTTAPALAM TALUK, PIN-679 502. 3 THE ORIENTAL INSURANCE CO.LTD. BRANCH OFFICE P.B.NO.8, JYOTHI SUPER BAZAR, THODUPUZHA. 685 584. BY ADVS. SRI.M.JACOB MURICKAN SRI.K.RAVI PARIYARATH SRI.G.SREEKUMAR CHELUR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 402 OF 2011** **2** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.344/2007 on the file of the Motor Accidents Claims Tribunal, Ottappalam. 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 19.12.2006. It was her case that, on the abovesaid she was in an day, while travelling autorickshaw bearing Reg. No.KL-9/L-2560 along the Kundadi – Kothakurussi, a bus bearing Reg. No.KL-11-N8120 (Bus), driven by the 1st respondent in a rash and negligent manner, hit the autorickshaw. The appellant sustained serious injuries, including a fracture of the right zygomatic, fracture of the right maxilla, fracture of the right lateral wall of orbit and fracture of the right neck **MACA NO. 402 OF 2011** **3** of the condyle. She was treated as an inpatient for a period of six days at the Al-Shifa Hospital, Perinthalmanna. She was a Milk Vendor by profession and was earning a monthly income of Rs.5,000/-. The bus was owned by the 2[nd] respondent and insured with the 3[rd] respondent. Hence, the appellant claimed a compensation of Rs.2,00,000/- from the respondents. 3. The other injured in the same accident also filed O.P Nos.345/2007, 346/2007 and 353/2007 before the same Tribunal. 4. The respondents 1 and 2 had filed joint written statements in all the claim petitions denying negligence on the part of the 1[st] respondent. It was contended that the accident occurred due to the negligence of the driver of the autorickshaw. Nevertheless, the respondents 1 and 2 asserted that the bus was validly insured with the 3[rd] respondent. 5. The 3[rd] respondent had filed separate written statements in the claim petitions disputing the age, **MACA NO. 402 OF 2011** **4** occupation and income of all the petitioners. Nevertheless, the 3[rd] respondent admitted that the bus had a valid insurance coverage. 6. The Tribunal consolidated and jointly tried the four claim petitions. 7. A Doctor was examined as PW1 and Exts.A1 to A29 were marked in four claim petitions. The respondents also examined RW1 and marked Exts.B1 to B4. 8. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition, in part, by permitting the appellant to recover from the 3[rd] respondent an amount of Rs.41,950/- with interest and costs. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri.R.Sreehari, the learned counsel appearing for the appellant/petitioner, Sri.G.Sreekumar Chelur, the learned counsel appearing for respondents 1 and 2 and Sri.M.Jacob Murickan the learned counsel **MACA NO. 402 OF 2011** **5** appearing for the 3rd respondent- insurer. 11. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 12. Ext.A4 charge-sheet filed by the Police in Crime No.679/2006 proves that the accident occurred due to the negligence of the 1[st] respondent. Admittedly, the 2nd 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.A4 charge-sheet. The 3[rd] respondent has also not proved that the 2nd respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 2[nd] respondent arising out of the accident. ## **Income** 13. The appellant had claimed that she was a Milk Vendor by profession and was earning a monthly income of Rs.5,000/-. The Tribunal, for the want of materials, fixed **MACA NO. 402 OF 2011** **6** notional monthly income of the appellant at Rs.1,250/-. 14. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 15. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2006, I re-fix the notional monthly income of the appellant at Rs.5,000/-, as claimed in the claim petition. ## **Loss of earnings** 16. Taking note of the severe injuries sustained by the appellant, who had suffered three fractures and a head injury, I hold that she was indisposed for a period of four months. In view of the re-fixation of the notional monthly income of the appellant at Rs.5,000/-, I award the appellant an amount of Rs.20,000/- towards ‘loss of earnings’. **MACA NO. 402 OF 2011** **7** ## **Disability** 17. The appellant had examined PW1, who issued Ext.A26 disability certificate. PW1 has certified that the appellant has a permanent disability of 7%. However, for the reasons best known to the Tribunal, the Tribunal scaled down the disability to 5%. 18. In **Rajkumar v. Ajaykumar** [2011 (1) KLT 620 SC] , the Hon'ble Supreme Court has categorically held that, if the Tribunal is not satisfied with the disability certificate produced before it, it is imperative for the Tribunal to refer the injured-claimant to a duly constituted Medical Board. It is also held that, what needs to be looked into in a case of injury, is the functional disability of the injured-claimant. 19. In the instant case, the appellant had examined PW1, who had issued Ext.A26 and had proved that the appellant has a permanent disability of 7%. The Tribunal after accepting the said document in evidence, without any objection or protest from the respondents, **MACA NO. 402 OF 2011** **8** ought to have accepted the assessment made in Ext.A26. Therefore, considering the uncontroverted oral testimony of PW1 read with Ext.A26 disability certificate and the fact that the appellant was a Milk Vendor by profession, I re-fix the functional disability of the appellant at 7%. ## **Multiplier** 20. The appellant was aged 54 years at the time of the accident. In view of the law laid down in **Sarla Verma & Otrs Vs. Delhi Transport Corporation** [(2009) 6 SCC 121], the relevant multiplier to be adopted is '11'. ## **Loss due to disability** 21. Taking into account the above mentioned factors, namely, the monthly income of the appellant at Rs.5,000/-, her functional disability at ‘7%’ and the multiplier at '11', I award the appellant an amount of Rs.46,200/- towards ‘loss due to disability’ instead of Rs.8,250/- awarded by the Tribunal. **MACA NO. 402 OF 2011** **9** ## **- Bystander expenses and Extra nourishment** ## **expenses** 22. It is proved that the appellant had suffered three fractures and a head injury and that she was treated as an inpatient for a period of 6 days. The Tribunal has awarded an amount of Rs.1,200/- each towards 'bystander expenses' and 'extra nourishment', which is inadequate and absymal. Hence, I award the appellant an amount of Rs.2,500/- each under the aforesaid two heads. ## **Pain and sufferings and Loss of amenities** 23. The Tribunal has awarded an amount of Rs.15,000/- towards 'pain and sufferings' and Rs.5,000/towards 'loss of amenities'. 24. On a consideration of Ext.A26 disability certificate, wherein, it is seen that the appellant had sustained three fractures and a head injury, and she was treated as an inpatient for a period of six days, that she was indisposed for a period of four months, and that she was suffered a functional disability of 7%, I hold that the **MACA NO. 402 OF 2011** **10** she is entitled for enhancement of compensation under the heads 'pain and sufferings' and 'loss of amenities' by Rs.10,000/- and Rs.5,000/- respectively. ## **Other heads of compensation** 25. With respect to the other heads of compensation, namely, clothing, transportation and medical expenses, I find that the Tribunal has awarded reasonable and just compensation. 26. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. **MACA NO. 402 OF 2011** **11** **==> picture [431 x 469] intentionally omitted <==** **----- Start of picture text -----**<br> SI Head of claim Amount awarded Amounts<br>by the Tribunal (in modified and<br>.No rupees) recalculated by<br>this Court<br>--<br>1 Loss of earnings 20,000<br>2. Transport to hospital 500 500<br>3. Damage to clothing 500 500<br>4. Bystander expenses 1,200 2,500<br>5. Extra nourishment 1,200 2,500<br>6. Medical Expenses 10,300 10,300<br>7 Pain and suffering 15,000 25,000<br>8. Loss of amenities 5,000 10,000<br>9. Loss due to disability 8,250 46,200<br>Total 41,950 1,17,500<br>======== =======<br>**----- End of picture text -----**<br> In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.75,550/- with interest at the rate of 8% per annum from the date of petition till the date of deposit, after deducting **MACA NO. 402 OF 2011** **12** the interest for a period of 108 days i.e. the period of delay in filing the appeal and as ordered by this Court on 28.9.2021 in C.M.Appli.No.2 of 2011, and a cost of Rs.5,000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and costs before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited compensation to the appellant/petitioner in accordance with law. ma/07.01.2022 Sd/- **C.S.DIAS, JUDGE**