Prabhavathi v. Abdul Shukkoor & New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 14TH DAY OF JULY 2016/23RD ASHADHA, 1938** **MACA.No. 2445 of 2008 ( ) --------------------------** **AGAINST THE AWARD IN OP(MV) 461/2002 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ATTINGAL DATED 23-11-2006** ## **APPELLANT(S)/PETITIONER:** **-----------------------** **PRABHAVATHI, D/O.NANI, CHITHRA BHAVAN, CHITTATTINKARA, ATTINGAL VILLAGE.** ## **BY ADV. SRI.M.DINESH** **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. ABDUL SHUKKOOR, S/O.MOHAMMED ASLAM, ARIBHA MANZIL, PRATHIBA JUNCTION,MUDAPURAM.P.O, KIZHUVILAM.** **2. BRANCH MANAGER, NEW INDIA ASSURANCE CO.** ## **LTD, NEAR MUNICIPAL BUS STAND, ATTINGAL.** **R2 BY ADVS. SRI.JOY GEORGE SMT.PRAICY JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2445 of 2008** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 14[th] day of July, 2016** ## **J U D G M E N T** ## **K.P. Jyothindranath, J.** This appeal is preferred by the claimant in O.P.(M.V.) No.461/2002 on the file of the Motor Accidents Claims Tribunal, Attingal. The challenge is against the quantum of compensation awarded. The facts relevant for consideration of this appeal is as follows: The appellant herein sustained tibial fracture in a motor vehicle accident occurred on 13.2.2002 at Mudapuram. She was admitted in the Taluk Head Quarters Hospital, Chirayinkil and was treated therein for the said injuries. She was treated as an inpatient for 146 days. She was examined by a doctor and assessed her disability as 20%. Her claim is that she was a vegetable vendor by profession and was earning Rs.3,000/- per month. The Tribunal awarded a total compensation of Rs.60,020/-. The total amount of compensation awarded as per the original award is seen corrected as per order in I.A.Nos.854/2007 & M.A.C.A.No.2445 of 2008 2 849/2007 in O.P.(M.V.)461/2002. Aggrieved by the said assessment, this appeal is preferred. 2. When the petition came up for hearing, the main submission made by the learned counsel for the appellant is that even though the case of the petitioner is that she is a vegetable vendor by profession, only a notional income of Rs.1,800/- per month is seen considered by the Tribunal. It is the submission that going by the decision of the Apex court in **Syed Sadiq v. United India Insurance Co. Ltd. [(2014) 2 SCC 735]** in the case of a vegetable vendor, who was aged 24 years, the monthly income was taken at Rs.6,500/- where the accident occurred in the year 2008. It is also the submission that even though the petitioner was treated for 146 days as an inpatient in the hospital, only a sum of Rs.7,000/- is seen awarded towards pain and suffering. More over no amount is seen awarded towards bystander's expenses. It is the further submission that even though an expert i.e. an Orthopedic Surgeon assessed the disability as 20%, without showing any reason, the Tribunal M.A.C.A.No.2445 of 2008 3 reduced the same to 15% It is the submission that it is a fit case where an interference by this court is warranted. It is the submission that the amount awarded is not a just compensation. 3. We have heard the learned counsel appearing for the Insurance Company. It is submitted that, it is only a case of fracture of tibia. No complication is seen noted in the first wound certificate. It is the further submission that there is no evidence adduced by the claimant to establish/prove that she is a vegetable vendor by profession. It is a case where even the claimant was not examined before the court. It is also the submission that the accident in question occurred in the year 2002, whereas the Apex Court considered the income of a vegetable vendor as Rs.6,500/- in a case where the accident occurred in 2008 and wherein claimant was examined as PW1. In this case, neither the doctor who issued the disability certificate nor the claimant was examined before the Tribunal. Under such circumstances, an interference by this court is not M.A.C.A.No.2445 of 2008 4 warranted as a just compensation was assessed. 4. After hearing both sides and also considering the award and materials, we feel that some interference is warranted in this case. Surely, it is an admitted case that the appellant/claimant was in the hospital for 146 days. No amount is seen awarded towards bystander's expenses. Since the accident occurred in the year 2002 and further considering Rs.150/- per day as bystander's expenses, the petitioner will be entitled for a sum of Rs.21,900/- on this head. The said amount of Rs.21,900/- allowed on that count. It can be further seen that even though the petitioner was in the hospital for 146 days, only a sum of Rs.1,000/- is awarded towards extra nourishment. When a person is in the hospital, naturally, she will require special foods. Under such circumstances, by taking Rs.100/- per day as the expense for extra nourishment she will be entitled for a total sum of Rs.14,600/- on this head. As Rs.1,000/- has already been awarded by the Tribunal on this head, she will be entitled for an additional amount of Rs.13,600/- and the M.A.C.A.No.2445 of 2008 5 said amount awarded. The Tribunal awarded only a sum of Rs.1,500/- towards medical expenses. In paragraph 8 of the award, the Tribunal stated that “medical bills are marked as Ext.A14 series (88 in nos.) for a sum of Rs.10,170/-”. On this head as already stated the Tribunal awarded only a sum of Rs.1,500/-. No reason is assigned for allowing only Rs.1,500/- by the Tribunal. There is nothing to show that after a verification, the Tribunal found that she is only entitled for the said amount. Under such circumstances, we are inclined to grant the balance amount also to the appellant herein. Thus, the appellant will be entitled for an additional amount of Rs.8,670/- on the head of medical expenses. Towards pain and suffering only a sum of Rs.7,000/- is seen granted. She was in the hospital for about 146 days. As such, she will be entitled for an additional sum of Rs.8,000/- on the head of pain and suffering. 5. The accident occurred in the year 2002. The case of the petitioner is that she is a vegetable vendor by M.A.C.A.No.2445 of 2008 6 profession. Surely, no evidence was adduced to substantiate the same. But at the very same time the as per the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** it is evident that even in respect of a coolie who met with an accident in the year 2004, the Apex Court took the monthly income notionally at Rs.4,500/-. Similarly in **Lata Wadhwa v. State of Bihar [AIR 2001 SC 3218]** the Apex Court considered the services of a wife equated in money terms as that of Rs.3,000/- [for the age group of 34 to 59] and further the accident involved in that case was as back as in 1989. The said decision was rendered by the Apex Court in the year 2001. Thus, considering all these aspects it will be only just and proper to consider Rs.3,000/- as the monthly income of the applicant who claims as per the claim petition that her monthly income is Rs.3,000/-. Towards loss of earnings, the Tribunal awarded a sum of Rs.7,500/-. She will be entitled for a proportionate enhancement. Considering 4½ months M.A.C.A.No.2445 of 2008 7 as the period of loss of earning, the appellant will be entitled for Rs.6,000/- [Rs.3000x4.5-7500]. As we considered the monthly income of the appellant as Rs.3,000/-, she will be also entitled for an additional compensation towards loss due to disability. Since the disability certificate is not proved by the claimant, we see no illegality committed by the Tribunal in taking 15% as the disability caused to the claimant by the injury. We also adopt the very same percentage of disability for the calculation purpose. Thus, the additional amount available on this head is Rs.28,080/-[3000x12x13x15/100-42120]. Apart from these compensations, no compensation is seen awarded towards loss of amenities. It is a case where the appellant was in the hospital for 146 days and we considered a disability of 15%. Thus considering all these aspects a sum of Rs.15,000/- is granted towards loss of amenities in life. 6. Thus, the appellant will be entitled for a total additional sum of Rs.1,01,250/- (Rupees one lakh one M.A.C.A.No.2445 of 2008 8 thousand two hundred and fifty only). This amount will carry interest at the rate of 8% per annum from the date of petition till realization. The second respondent, Insurance Company is directed to deposit the enhanced amount within a period of two months from the date of receipt of a copy of this judgment, failing which, the amount remaining to be paid will carry interest at the rate of 9%. It is made clear that as per the order in CMA 2511/2008, while the delay was condoned, this court ordered that the appellant will not be entitled for interest for 487 days, the days of delay caused in filing the appeal. The said period shall be excluded while the interest is computed. The parties shall bare their respective costs. Sd/- **C.T. RAVIKUMAR JUDGE** Sd/- **JUDGE** **K.P. JYOTHINDRANATH** //True copy// P.A. TO JUDGE shg/