RAJASREE W/O LATE RAJIV, POVATHIL HOUSE, THAMARAKULANGARA, THRIPUNITHURA P.O. (APPELLANT) v. RAJIV (DIED) SREENIVASA NAMBEESAN, Hari S., United India Insurance Co. Ltd. (RESPONDENTS)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` FRIDAY, THE 12 [ TH ] DAY OF APRIL 2024 / 23RD CHAITHRA, 1946 ``` ``` MACA NO. 444 OF 2013 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 03.02.2011 IN OPMV NO.851 OF 2001 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA ``` ## **`APPELLANT/PETITIONER:`** ``` RAJASREE W/O.LATE.RAJIV,POVATHIL HOUSE,THAMARAKULANGARA,THRIPUNITHURA.P.O,NOW RESIDING AT NANDANAM HOUSE,PIDAVOOR KARA,VARAPETTY VILLAGE,KOTHAMANGALAM TALUK. ``` ``` BY ADV SRI.C.DILIP ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 RAJIV(DIED) SREENIVASA NAMBEESAN,VAISHAK,CHEVAYOOR.P.O,KOZHIKODE(DIED).`** - **`2 HARI.S S/O.SASISEKHARAN KARTHA,VALLAKKATTU HOUSE,N.F.GATE,THRIPUNITHURA,PIN-682301.`** - **`3 THE MANAGER UNITED INDIA INSURANCE CO.LTD,DIVISIONAL OFFICE,NO.3,JOSE TRUST BUILDING,KOCHI-35.`** ``` BY ADV. SRI.P.K.MANOJ KUMAR-R3 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 444 OF 2013 ``` ``` 2 ``` ## **`J U D G M E N T`** ``` This appeal is at the instance of the claimant ``` ``` in OP(MV) No.851 of 2001 on the file of Motor Accidents Claims Tribunal, Muvattupuzha ``` ``` challenging the award on the ground of inadequacy of compensation. ``` ``` 2. The appellant who was a PG student, while riding pillion on KL-7F/5495 motorcycle ridden by ``` ``` the 1st respondent, fell down on the road due to the rash and negligent riding of the motorcycle by ``` ``` the 1st respondent. She suffered serious head ``` ``` injuries which resulted in hearing loss to her ``` ``` right ear to the extent of 94%. Her whole body ``` ``` disability was assessed by the medical board as 25.3%. She approached the Tribunal claiming compensation of Rs.2,50,000/-, but the Tribunal ``` ``` MACA NO. 444 OF 2013 ``` ``` 3 ``` ``` awarded only Rs.1,46,237/-, and hence this appeal. ``` `3. The 1st respondent was the rider of the` ``` offending motorcycle, the 2nd respondent was its owner, and the 3rd respondent was its insurer. ``` ``` 4. Respondents 1 and 2 remained exparte before the Tribunal. The 3rd respondent insurer contested the case, but admitted the policy. ``` `5. In the appeal notice to respondents 1 and 2` `was dispensed with, as the 3rd respondent insurer` ``` entered appearance through counsel, and admitted the policy. ``` `6. Heard learned counsel for the appellant and` `learned counsel for the 3rd respondent insurer.` `7. The main ground urged by the appellant is` ``` that, though she was a postgraduate student aged 21 ``` ``` years, learned Tribunal fixed her notional income @ ``` ``` MACA NO. 444 OF 2013 ``` ``` 4 ``` ``` Rs.1,500/- only, without taking into account her future prospects. She is relying on the decision ``` ``` Ramachandrappa v. Manager, Royal Sundaram Alliance ``` ``` Insurance Company Limited [AIR 2011 SC 2951] , to ``` ``` say that in the year 2001, notional income even for a coolie would have been fixed @ Rs.3,000/- per month. But on going through the claim petition filed by the appellant, her claim was only Rs.2,000/-per month. So this Court is inclined to accept the monthly income, as claimed by the appellant ie. Rs.2000 per month. Learned Tribunal assessed loss of earnings for 3 months only. She was hospitalized for 13 days in total. She suffered head injury with hearing loss of right ear to the extent of 94%. So this Court is inclined to take loss of earning for 8 months @ Rs.2,000/- which would be Rs.16,000/-. After deducting Rs.4,500/- ``` ``` MACA NO. 444 OF 2013 ``` ``` 5 ``` ``` already awarded, she is entitled to get the ``` ``` balance amount of Rs.11,500/- under the head loss of earnings. ``` ``` 8. Towards pain and suffering, learned Tribunal awarded Rs.15,000/- against her claim of ``` ``` Rs.25,000/-. Considering the nature of injuries and period of hospitalization, this Court is inclined to award Rs.5,000/- more, towards pain and suffering. ``` `9. Towards loss of amenities, the Tribunal` ``` awarded only Rs.10,000/- against her claim of ``` ``` Rs.25,000/-. The appellant was a 21 year old girl at the time of accident, and she suffered serious head injuries which resulted in hearing loss of her right ear. So this Court is inclined to award Rs.15,000/- more, towards loss of amenities. ``` `10. The medical board assessed her whole body` ``` MACA NO. 444 OF 2013 ``` ``` 6 ``` ``` disability to the extent of 25.3% as per Ext.A12 disability certificate. Taking her monthly income ``` ``` as Rs.2,000/-, the compensation for 25.3% ``` ``` disability can be assessed as Rs.1,09,296/- [2000x12x18x25.3%]. After deducting Rs.81,972/- already awarded, she is entitled to get the balance amount of Rs.27,324/-. ``` ``` 11. Learned counsel for the appellant would submit that the appellant had to terminate her pregnancy due to the injuries suffered in the accident, and she is claiming compensation for her medical termination of pregnancy. She would rely on Exts A7 and A8 documents which would show that as the appellant was taking drugs for post traumatic psychosis, which may be hazardous for the foetus, as advised by the Neurologist, she had undergone termination of pregnancy on 27/10/2001. ``` ``` MACA NO. 444 OF 2013 ``` ``` 7 ``` ``` It is true that no amount is seen claimed by the appellant in the original claim petition for terminating her pregnancy. But since Exts A7 and ``` ``` A8 medical records will show that she had to undergo MTP as she was taking drugs for post traumatic psychosis, this Court is inclined to award Rs.10,000/- under that head. ``` `12. The compensation awarded under all other` ``` heads seems to be reasonable, and hence it needs no modification. ``` `13. The compensation awarded under all other` ``` heads seems to be just and proper and it needs no interference. ``` `14. The enhanced compensation awarded in this` ``` appeal is stated in the table below:- ``` ``` MACA NO. 444 OF 2013 ``` ``` 8 ``` |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Difference to be<br>drawn as enhanced<br>compensation| |---|---|---|---| |Loss of earning|4,500/-|16,000/-<br>[2,000x8]|11,500/-| |Pain and<br>suffering|15,000/-|20,000/-|5,000/-| |Loss of<br>amenities|10,000/-|25,000/-|15,000/-| |Permanent<br>disability|81,972/-|1,09,296/-<br>[2000x12x18<br>x25.3%]|27,324/-| |For medical<br>termination of<br>pregnancy [as<br>per Exts.A7 and<br>A8]|-|10,000/-|10,000/-| |TOTAL 68,824/-|||| ``` 15. So the appellant is entitled to get enhanced compensation of Rs.68,824/- with 7% ``` ``` interest per annum. ``` ``` 16. The 3rd respondent/insurer is directed to ``` ``` MACA NO. 444 OF 2013 ``` ``` 9 ``` ``` deposit the enhanced compensation with 7% interest per annum, from the date of petition till the date of deposit (excluding 552 days of delay in filing the appeal) before the Motor Accidents Claim ``` ``` Tribunal concerned, within a period of two months ``` ``` from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to the appellant after deducting the ``` ``` liabilities, if any, towards Tax, balance court fee, legal benefit fund etc. ``` ``` The appeal is allowed to the extent as above, ``` ``` and no order is made as to costs. ``` ``` Sd/- ``` ## **`SOPHY THOMAS,`** ``` JUDGE ``` ``` ska ```