## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`**
## **`THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 18[TH] DAY OF JUNE 2024 / 28TH JYAISHTA, 1946 MACA NO. 2857 OF 2019`**
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AGAINST THE AWARD DATED 14.03.2019 IN O.P (MV) NO.377 OF 2016 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA
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## **`APPELLANT/PETITIONER :-`**
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RAINY JAISON, W/O.JAISON,
AGED 32 YEARS, THEKKUMPURAM HOUSE,
KANNAMBATHUR DESOM, THORAVU VILLAGE,
CHENGALLOOR P.O., MUKUNDAPURAM TALUK,
THRISSUR DISTRICT.
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## **`BY ADV A.N.SANTHOSH`**
## **`RESPONDENT/2ND RESPONDENT :-`**
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THE ORIENTAL INSURANCE COMPANY LTD.
MALIACKAL GALAXY, OPP.MSM COLLEGE,
KAYAMKULAM-690 502.
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BY ADV SRI.RINNY STEPHEN CHAMAPARAMPIL
SMT.ASHA ELIZABETH MATHEW
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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 18.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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## **JUDGMENT**
This appeal has been filed by the claimant in OP(MV) No.377 of 2016 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The respondent herein is the 2[nd] respondent before the tribunal.
2. According to the appellant/claimant, on 03.01.2016 at about 9.30 am, while she was travelling as a pillion rider on a motorcycle bearing Registration No.KL 08 V 4595 through Amballur-Pudukkad sector of NH 47, an autorickshaw bearing Registration No.KL 23 E 3301 driven by the 1[st] respondent came in a rash and negligent manner from opposite direction and hit against the motorcycle, as a result of which the petitioner sustained serious injuries. The appellant approached the tribunal claiming a total compensation of Rs.3,00,000/-.
3. The respondent insurer filed a written statement, admitting the policy, but disputing the quantum of compensation claimed. Before the tribunal, the evidence consists of documentary evidence as Exts.A1 to A10 on the
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side of the appellant/claimant and Exts.B1 and B2 on the side of the respondent. The tribunal, after analysing the pleadings and materials on record, awarded a sum of 1,61,630/- as compensation under different heads with interest @ 8% per annum from the date of petition till realization, against the second respondent being the insurer. Dissatisfied with the quantum of compensation awarded by the tribunal, the claimant has come up in appeal.
4. Heard the learned counsel for the appellant and the learned Standing Counsel for the respondent insurer.
5. The learned counsel for the appellant claims enhancement mainly under the following heads;
**- Income/notional income :** The learned counsel for the appellant submits that the appellant/claimant was working as Accountant in a private timber company and was earning a monthly income of Rs.12,000/- per month. But the tribunal has considered only an amount of Rs.8,000/- per month. The learned counsel further submits that even going by the judgment in **Ramachandrappa v. Manager, Royal**
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## **Sundaram Alliance Insurance Company Limited [AIR**
**2011 SC 2951],** the notional income ought to have been fixed at Rs.10,500/- since the accident occurred in the year 2016. On a perusal of the award, it is seen that the accident occurred on
03.01.2016. Even going by **Ramachandrappa (supra),** I am of the opinion that the notional income has to be enhanced and therefore, the notional income is refixed at Rs.10,500/- per month.
**Loss of earnings :-** The learned counsel for the appellant submits that the claimant, being a lady, had suffered undisplaced fracture of left cuboid and subluxation of subtalar joint. Therefore, she could not go for any work for almost six months. The tribunal has considered only for a period of three months for calculating the loss of earnings. On considering the facts of the case and the injuries sustained, I am of the opinion that a period of four months can be taken into consideration for computing the compensation under the head loss of earnings. Since the notional monthly income has already been fixed at Rs.10,500/-, the total compensation under the said head would be Rs.42,000/- (10,500x4). Thus, there will be an additional
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amount of Rs.18,000/- under the said head.
**Pain and sufering :-** Though the appellant claimed Rs.50,000/- as compensation towards pain and suffering, the tribunal has awarded only an amount of Rs.30,000/-. The learned counsel points out that the appellant was a lady aged 29 years and she had to do household duties as well as her personal duties in spite of the injuries sustained and had to undergo a lot of pain. Therefore, the amount awarded towards pain and suffering is very low. Considering the injuries suffered and age of the appellant, I feel that a further additional amount of Rs.5,000/- can be granted towards compensation for pain and suffering. Thus, the total compensation under the said head is Rs.35,000/-
**- Compensation for permanent disability :** The
learned counsel for the appellant submits that Ext.A6 disability certificate issued by the Doctor reveals that the appellant had 6% permanent disability, but the tribunal had reduced the disability to 4%. The learned Standing Counsel for the insurance company submitted that though the disability certificate was produced, it was a single doctor certificate and
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no evidence was adduced. However, on perusal of Ext.A6 certificate, a copy of which is handed over to me, it is seen that the doctor was assessed 6% disability after examining the appellant. The reasoning of the tribunal does not appear to be acceptable in view of the decisions of this Court in **Manikantan G. v. K.Janardhanan Nair** [2021(5) KHC 305] and **Rajkumar v. Ajay Kumar** [2011 (1) KLT 620 SC]. Therefore, I deem it appropriate to consider 6% disability, as assessed in Ext.A6 disability certificate, for the purpose of calculating compensation. Accordingly, the compensation under the head permanent disability has to be recomputed. Since the monthly income has been enhanced to Rs.10,500/-, the compensation for permanent disability has to be recalculated as Rs.1,28,520/- (10,500x12x17x6/100). The tribunal has awarded Rs.65,280-. Thus, there will be an additional enhancement of Rs.63,240/- under the said head.
**- Loss of amenities :** Though the appellant had claimed Rs.50,000/- under the head of loss of amenities, the tribunal has awarded only an amount of Rs.20,000/-. Considering the nature of the injuries sustained and also the age of the
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appellant, I feel that a further amount of Rs.10,000/- can be added under the said head.
## 6. Thus, the impugned award of the tribunal is
modified as follows:
|**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**claimed**|**Amount**<br>**awarded**<br>**by the**<br>**tribunal**|**Modifed**<br>**in appeal**|**Total**<br>**compensation**|
|---|---|---|---|---|---|
|1|**Loss of earnings**|**72,000**|**24,000**|**18,000**|**42,000**|
|2|Transportation<br>expenses|5,00|2,000|(not<br>modifed)|2,000|
|3|Extra nourishment|5,000|1,000|(not<br>modifed)|1,000|
|4|Damage to<br>clothings|5,000|1,000|(not<br>modifed)|1,000|
|5|Attendant<br>expenses|5,000|600|(not<br>modifed)|600|
|6|Medical expenses|25,000|17,750|(not<br>modifed)|17,750|
|**7**|**Pain & sufering**|**50,000**|**30,000**|**5,000**|**35,000**|
|**8**|**Permanent**<br>**disability**|**2,00,000**|**65,280**|**63,240**|**1,28,520**|
|9|**Loss of**<br>**amenities**|**50,000**|**20,000**|**10,000**|**30,000**|
|10|Loss of earning<br>power|1,00,000|Nil|Nil|Nil|
|11|Disfguration|50,000|Nil|Nil|Nil|
|12|Mental dejection|30,000|Nil|Nil|Nil|
|13|Anticipated<br>medical expenses|50,000|Nil|Nil|Nil|
||**TOTAL**|**5,97,000**|**1,61,630**|**96,240**|**2,57,870**|
Accordingly, the appeal is allowed and the appellant/claimant is awarded an additional compensation of
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**Rs.96,240/-** (Rupees ninety six thousand two hundred and forty only) over and above the compensation awarded by the tribunal with interest @ 8% per annum from the date of petition till realization and proportionate costs. The respondent insurer shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The claimant shall furnish copies of the PAN Card, AADHAAR Card and bank details before the respondent insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for the insurance company to deposit the said amount before the tribunal. Upon such deposit being made, the entire amount shall be disbursed to the appellant at the earliest in accordance with law.
Sd/-
**SHOBA ANNAMMA EAPEN JUDGE**
## **SMA**
