PRIYANKA P. CHANDRAN v. P.S. Renil and The New India Insurance Company Ltd

**MACA NO. 961 OF 2012** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 28[TH] DAY OF OCTOBER 2021 / 6TH KARTHIKA, 1943 MACA NO. 961 OF 2012** **AGAINST THE JUDGMENT IN OP(MV) 3022/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THRISSUR** ## **APPELLANT/PETITIONER:** PRIYANKA. P. CHANDRAN AGED 24 YEARS, W/O.P.S.RENIL, PARAPARAMBIL HOUSE,P.O.THRITHALLORE, THRISSUR DISTRICT - 680 619. BY ADV SRI.M.B.PRAJITH ## **RESPONDENTS/RESPONDENTS:** 1 P.S RENIL, S/O.SASEENDRAN, PARAPARAMBIL HOUSE, P.O.THRITHALLORE,THRISSUR DISTRICT - 680 619. 2 THE NEW INDIA INSURANCE COMPANY LTD PERINCHERY BUILDING, ROUND NORTH, THRISSUR, PIN - 688001. BY ADV PMM.NAJEEB KHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 961 OF 2012** **2** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.3022/2004 on the file of the Motor Accidents Claims Tribunal, Thrissur. 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 24.9.2004. She has averred in the claim petition that, while she was travelling in a car bearing Reg.No.KL-8/AA 8273 (car) on the abovesaid day, driven by the 1[st] respondent through the East Tippu Sulthan Public Road, when the car reached Thrithala, due to the negligence of the 1[st] respondent, the car overturned and the appellant sustained serious injuries. She was treated as an inpatient at the West Fort Hospital, Thrissur from 24.9.2004 to 28.9.2004. The appellant sustained serious **MACA NO. 961 OF 2012** **3** injuries including a fracture of lower chest on the right side, right wrist and fracture of right humerus lateral end of the right radius on the 3[rd] , 4[th] and 5[th] ribs. The car was owned by the 1[st] respondent and insured with the 2[nd] respondent. The appellant was a Nurse by profession and was earning a monthly income of Rs.4,000/-. Hence, the appellant claimed a total compensation of Rs.2,50,000/- from the respondents. 3. The 1[st] respondent did not contest the proceedings and was set ex parte. 4. The 2[nd] respondent filed a written statement admitting that the car had a valid insurance coverage. However, it was contended that the accident did not occur due to the negligence of the 1[st] respondent. The 2[nd] respondent also disputed the age, occupation and income of the appellant. 5. The appellant produced and marked Exts.A1 to A14 in evidence. The 2[nd] respondent marked Ext.B1 **MACA NO. 961 OF 2012** **4** insurance policy in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the 2[nd] respondent an amount of Rs. 1,28,400/- with interest at the rate of 8% per annum from the date of petition till the date of realisation and proportionate costs. 7. Dissatisfied with the quantum of compensation, the petitioner is in appeal. 8. Heard; Sri.M.B.Prajith, the learned counsel appearing for the appellant/petitioner and Sri.PMM Najeeb Khan, the learned counsel appearing for the 2[nd] respondent- insurer. 9. 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** 10. Ext.A2 final report filed by the Police substantiates **MACA NO. 961 OF 2012** **5** that the accident occurred due to the negligence of the 1[st] respondent. Admittedly, the 2[nd] respondent was the insurer of the car. The 2[nd] respondent has not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 2[nd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **I ncome** 11. The appellant had claimed that she was a Nurse by profession and was working at Karunya Hospital, Vadanappally. She had produced Ext.A13 salary certificate to prove her income. However, the appellant did not examine any person to prove Ext.A13. Accordingly, the Tribunal fixed the notional monthly income of the appellant at Rs.3,000/-. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has **MACA NO. 961 OF 2012** **6** fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 13. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2004, I re-fix the monthly notional income of the appellant at Rs.4,500/-. ## **Loss of earnings** 14. It is proved by Ext.A5 wound certificate, Ext.A6 discharge summary and Ext.A9 disability certificate that the appellant had sustained serious injuries including fractures of right shoulder, right radius and 3[rd] , 4[th] and 5[th] right ribs. She was treated as an inpatient for a period of five days and has suffered a permanent disability of 18%, as evident from Ext.A9. The Tribunal has held that the appellant was indisposed for a period of four months. I confirm the said finding. 15. In view of the re-fixation of the notional monthly **MACA NO. 961 OF 2012** **7** income of the appellant at Rs.4,500/- I re-fix the compensation for 'loss of earnings' at Rs.18,000/-, instead of Rs.12,000/- fixed by the Tribunal. ## **Disability** 16. The appellant had produced Ext.A9 disability certificate, wherein, the Doctor has certified that the appellant has a permanent whole body disability of 18% due to the stiffness of her right shoulder joint, restricted movement of her right wrist joint, non-weight bearing of the right side, difficulty to write, difficulty to attend personal needs and wasting of the muscles of the right hand. 17. In **Rajkumar v. Ajaykumar** [2011 (1) KLT 620 SC], the Hon'ble Supreme Court has categorically held that in the case of injury, what needs to be looked into by the Tribunal is the functional disability of the injured. Similarly, the Hon'ble Supreme Court has also directed that in case the Tribunal is dissatisfied with the disability **MACA NO. 961 OF 2012** **8** certificate produced by the injured, it is imperative for the Tribunal to refer the injured/claimant to a duly constituted Medical Board. 18. In the instant case, the Tribunal has not followed the directions of the Hon'ble Supreme Court . However, considering the assessment made by the Doctor in Ext.A9 and keeping in mind that the appellant was a Nurse by profession, I am of the opinion that the appellant's functional disability can safely be re-fixed at 15%, instead of 10% fixed by the Tribunal. ## **Multiplier** 19. Admittedly, the appellant was 24 years at the time of accident. In view of the law laid down in **Sarala Verma v Delhi Transport Corporation** [2010(2) KLT 802 (SC)], the relevant multiplier to be adopted is 18. Hence, I fix the multiplier as '18'. ## **Compensation for disability** 20. Following the above parameters, namely, the **MACA NO. 961 OF 2012** **9** monthly income of the appellant at Rs.4,500/-, her functional disability at 15% and the multiplier at '18', I refix the compensation for loss due to disability at Rs.1,45,800/-, instead of Rs.64,800/- fixed by the Tribunal. ## **Bystander expenses** 21. Admittedly, the appellant was treated as an inpatient for a period of five days. The Tribunal has awarded only an amount of Rs.750/-, which according to me is on the lower side. Therefore, I re-fix the bystander expenses at Rs.250/- per day for a period of five days, which works out to Rs.1,250/- . ## **- Extra nourishment** 22. The appellant had claimed an amount of Rs.3,000/- towards extra-nourishment expenses. It is proved that the appellant was treated as an inpatient for a period of five days and she was indisposed for a period of four months. Therefore, I hold that the appellant is entitled for an amount of Rs.3,000/- under the head **MACA NO. 961 OF 2012** **10** 'extra-nourishment expenses', as claimed in the claim petition. ## **Loss of amenities** 23. The appellant had claimed an amount of Rs.1,30,500/- towards loss of amenities. The Tribunal has awarded only an amount of Rs.10,000/- under the said head. 24. Taking into consideration the fact that the appellant has sustained a functional disability of 15% that she was indisposed for a period of four months and she was treated as an inpatient for a period of five days, I refix the compensation for 'loss of amenities' at Rs.15,000/-. ## **Other heads of compensation** 25. With respect to the other heads of compensation, 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 **MACA NO. 961 OF 2012** **11** aforecited 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. **==> picture [431 x 443] 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>1 Loss of earnings 12,000 18,000<br>2. Transport to hospital 1,500 1,500<br>3. Bystander expenses 750 1,250<br>--<br>4. Extra nourishment 3,000<br>5. Medical Expenses 24,305 24,305<br>6 Pain and suffering 15,000 15,000<br>7. Loss of amenities 10,000 15,000<br>8. Loss due to disability 64,800 1,45,800<br>Total 1,28,355 2,23,855<br>rounded off to<br>1,28,400-<br>=======<br>========<br>**----- End of picture text -----**<br> **MACA NO. 961 OF 2012** **12** In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.95,455/- with interest on the said amount at the rate of 8% per annum from the date of petition till the date of realisation and a cost of Rs.5,000/-. The 2[nd] respondent is ordered to deposit the enhanced compensation with interest and costs before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance with law. The Registry is directed to forward a copy of this judgment directly to the appellant and the Tribunal. In case the appellant does not collect the compensation amount, the Tribunal shall through the District Legal Services Authority intimate the appellant regarding the disposal of the appeal. ma/28.10.2021 Sd/- **C.S.DIAS, JUDGE** **/True copy**