Preetha v. S. Ranganathan, United India Insurance Company Ltd. and Kerala State Insurance Department District Insurance Office

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 9[TH] DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943 ``` ``` MACA NO. 1627 OF 2009 ``` ``` AGAINST THE AWARD DATED 19.06.2006 IN OP(MV)NO.300/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR, ERNAKULAM ``` ## **`APPELLANT/PETITIONER:`** ``` PREETHA, W/O. RAJEEV, MADATHATTU HOUSE, NEDUMBASSERY. ``` ## **`BY ADV SRI.V.V.NANDAGOPAL NAMBIAR`** ## **`RESPONDENTS/RESPONDENTS:`** - **`1 S.RANGANATHAN, 42/2, MSG QUARTERS, JUBILEE GARDEN, THE NILGIRIS.`** - **`2 UNITED INDIA INSURANCE COMPANY LTD. WELLINGTON, NILGIRI DISTRICT, TAMILNADU.`** - **`3 KERALA STATE INSURANCE DEPARTMENT DISTRICT INSURANCE OFFICE, ERNAKULAM, KOCHI.`** ``` BY ADV SMT.RAJI T.BHASKAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1627/2009 -:2:- Dated this the 9[th] day of November,2021 ## **J U D G M E N T** The appellant was the petitioner in O.P. (MV)No.300/2002 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. 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 26.10.2001. It was her case that, on the above said day, while she was travelling pillion on a motorcycle bearing Registration No. KL-7P-7679 through the Aluva-Angamaly National Highway road, when she reached the place of occurrence, a Tata Sumo bearing Registration No.TN-38A-2896(jeep) driven in a rash and negligent manner, hit the motorcycle of the appellant. The jeep was owned by the first respondent and insured with M.A.C.A.No.1627/2009 -:3:- the second respondent. The third respondent was the insurer of the motorcycle. The appellant was employed as a Document Assistant in AVT Natural Products Limited, Aluva and was drawing a monthly salary of Rs.4,387/-. The accident occurred solely due to the negligence of the driver of the jeep. The appellant sustained serious injuries and was hospitalised for a period of 48 days. Hence, the appellant claimed a compensation of Rs.5,27,322/- from the respondents. 3. The first respondent did not contest the proceedings and was set ex parte. 4. The second respondent had filed a written statement, admitting that the jeep had a valid insurance policy. Nevertheless, it was contended that the accident occurred due to the negligence of the rider of the motorcycle. The second respondent also disputed the age, income and occupation of the appellant. M.A.C.A.No.1627/2009 -:4:- 5. The third respondent had filed a written statement admitting that the motorcycle had a valid insurance It was contended that the coverage. accident occurred due to the negligence of the driver of the jeep. Hence, the third respondent prayed for exoneration of any liability. 6. The appellant’s employer was examined as PW1 and Exts.A1 to A21 were marked in evidence. The appellant also summoned and marked Exts.X1 and X2 salary registers through PW1. The second respondent produced the insurance policy of the offending jeep, which was marked as Ext.B1. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to realise an amount of Rs.2,72,300/- with interest and a cost from the second respondent. 8. Dissatisfied with the quantum of M.A.C.A.No.1627/2009 -:5:- compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Sri. V.V. Nandagopal Nambiar, the learned counsel appearing for the appellant/petitioner and Smt. Raji T. Bhaskar, the learned counsel appearing for the second respondent/insurer and the learned Government pleader appearing for the third respondent. 10. 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:** 11. Ext.A5 chargesheet filed by the Changamanadu Police in Crime No.382/2001 substantiates that the accident happened due to negligence of the driver of the jeep. Admittedly, jeep was owned by the first respondent and insured with M.A.C.A.No.1627/2009 -:6:- the second respondent. The second respondent has admitted that the jeep had a valid insurance policy and has not proved that the first respondent has violated the insurance policy conditions. Therefore, the second respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Salary of the appellant:** 12. The appellant had specifically pleaded in the claim petition that she was employed as a Document Assistant in AVT Natural Products Limited, Aluva and was drawing a monthly salary of Rs.4,387/-. She produced Ext.A18 salary certificate issued by her employer, which was proved through PW1, wherein her salary is certified at Rs.4,387/-. There were certain statutory deductions made as contributions to the Employees’ Provident Fund and Employees’ State Insurance. The appellant had also summoned Exts.X1 and X2 salary registers of her employer and proved it M.A.C.A.No.1627/2009 -:7:- through PW1 which again proves that the appellant was being paid Rs.4,387/- as her monthly salary. However, the Tribunal for the reason that the appellant was employed in a private concern, fixed the monthly salary of the appellant at Rs.2,500/-. This course, according to me, is erroneous and wrong. 13. In view of the overwhelming evidence on record in form of Exts.A18, X1 and X2 which stand corroborated through PW1. I have no hesitation in my mind to accept Ext.A18 salary certificate and fixing the monthly income of the appellant at Rs.4,387/-. 14. Even though in **Kalpanaraj & Ors. v. Tamil Nadu State Transport Corporation** [(2015) 2 SCC 764], the Hon’ble Supreme Court has held that the income tax portion has to be deducted from the income of an injured/claimant, in the instant case, as the appellant is a lady and her gross yearly income amounts to Rs.52,644/-, she falls well below the M.A.C.A.No.1627/2009 -:8:- income tax ceiling limit. Therefore, I accept the monthly salary of the appellant at Rs.4,387/-. ## **Loss of earnings:** 15. The appellant has produced Ext.A19 certificate issued by her employer which has been proved through PW1 stating that the appellant was on loss of pay for a period from 26.10.2001 to 31.05.2002, i.e., a period of seven months. Therefore, in view of the re-fixation of the monthly salary of the appellant at Rs.4,387/-, I re-refix the ‘loss of earnings’ at Rs.30,709/-, instead of Rs.17,500/- fixed by the Tribunal. ## **Loss due to disability** 16. Taking into consideration the major injuries sustained by the appellant in the accident, which have been certified in Exts.A7, A8, A16 and A17 discharge summaries, the Tribunal has fixed the ‘functional disability’ of the appellant at 5%. M.A.C.A.No.1627/2009 -:9:- 17. On a re-appreciation of the grievous injuries sustained by the appellant in the accident as evidenced from Ext.A6 wound certificate and the above mentioned discharge summaries, I hold that the assessment of ‘functional disability’ at 5% to be justifiable and correct. 18. In view of the re-fixation of the monthly salary of the appellant at Rs.4,387/-, I fix compensation for ‘loss due to disability’ at Rs.47,400/-, instead of Rs.25,500/- fixed by the Tribunal. ## **Bystander expenses and extra nourishment:** 19. It is proved from Exts.A7, A8, A16 and A17 discharge summaries that the appellant was treated as an inpatient for a period of 48 days. The Tribunal has awarded an amount of Rs.5,000/- towards ‘attendance charges’ and Rs.2,000/- towards ‘extra nourishment’, which according to me, is too meager. Taking into account the long period of hospitalisation that the M.A.C.A.No.1627/2009 -:10:- appellant had to undergo, I award an amount of Rs.200/- per day for a period of 48 days for both ‘bystander expenses’ and ‘extra nourishment’, which amounts to Rs.9,600/- each. 20. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 21. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decision, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modifed<br>and<br>recalculated<br>by this<br>Court| |---|---|---|---| |1|Loss of earnings|17,500|30,709| M.A.C.A.No.1627/2009 -:11:- |2|Transport<br>expenses|2,000|2,000| |---|---|---|---| |3|Clothing|250|250| |4|Extra nourishment|2,000|9,600| |5|Bystander<br>expenses|5,000|9,600| |6|Medical expenses|1,75,030|1,75,030| |7|Pain and suferings|25,000|25,000| |8|Loss of amenities|20,000|20,000| |9|Loss<br>due<br>to<br>disability|25,500|47,400| ||**Total**|**2,72,300**|**3,19,589**| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **Rs.47,289/-** with interest on the enhanced compensation at the rate of 7% per annum from the date of petition till the date of realisation, after deducting interest for a period of 935 days i.e., the period of delay in preferring this appeal, as directed by this Court on 15.09.2021 in C.M.Appln.No.2/2009, and a cost of Rs.5,000/-. The second respondent is ordered to deposit the enhanced compensation with interest M.A.C.A.No.1627/2009 -:12:- and cost before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner, in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/09.11.21 //True copy/ P.A.To Judge