Rajeshwari v. M.K.Vinura j (1) Vinuraj; (2) Jayanaranan Sreedharan Nair; (3) National Insurance Co Ltd

**MACA NO. 271 OF 2009** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 29[TH] DAY OF SEPTEMBER 2021 / 7TH ASWINA, 1943 MACA NO. 271 OF 2009** **AGAINST THE JUDGMENT IN OP(MV) 1823/2000 OF II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , KOZHIKODE** ## **APPELLANT/PETITIONER:** RAJESWARI, W/O.SURENDRAN, AGED 39 YEARS, THECKETHODI HOUSE, P.O.ARAKKINAR, KOZHIKODE. BY ADVS. C.G.PREETHA ARJUN SREEDHAR MATHEWS P.MATHEW ## **RESPONDENTS/RESPONDENTS:** 1 M.K.VINURAJ V/133-KOYARITHAZHAM, P.O.ERANHIPALAM, CALICUT. 2 JAYANARAYANAN S/O.SREEDHARAN NAIR AGED 26 YEARS, PUTHENVEEDU, HOUSE, P.O.PUNPALA, VANDOOR, MALAPPURAM. 3 NATIONAL INSURANCE CO LTD, DIVISION OFFICE 11, P.B BUILDING, NEAR ARYAIDATHPALAM, CALICUT. BY ADVS. LAL K.JOSEPH T.K.SANDEEP THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 271 OF 2009** **2** ## **JUDGMENT** The appellant was the petitioner in O.P (MV) No.1823/2000 on the file of the II Additional Motor Accidents Claims Tribunal, Kozhikode. 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 28.6.2000. It was the her case that, on 28.6.2000, while she along with the relatives were travelling in a jeep bearing Reg.No.KL-10/A 9511 (jeep) from Beypore to Koyilandy, when the jeep reached a place named Pookkad , a mini lorry bearing Reg. No.KCE 4006 (lorry) came from the opposite direction and hit the jeep. The lorry was driven by the 2[nd] respondent in a rash and negligent manner. All passengers in the jeep sustained serious injuries. The appellant sustained fracture to the **MACA NO. 271 OF 2009** **3** first, third and fourth right ribs, fracture to the left trahanter (femur), fracture to the inferior pubic ramus (right) and fracture to the superior pubic ramus (left). She was treated as an inpatient for a period of 20 days and is still continuing treatment. The lorry was owned by the 1[st] respondent and insured with the 3[rd] respondent. The appellant was a coolie by profession and was earning a monthly income of Rs.2,500/-. The appellant claimed a total compensation of Rs.3,00,000/- from the respondents. 3. The other injured in the same accident also filed O.P.(MV) Nos. 1652/2000, 1656/2000, 1657/2000, 1658/2000, 1659/2000, 1708/2000, 1751/2000, 1776/2000, 1815/2000, 1824/2000 and 2036/2000, before the same Tribunal, seeking compensation. 4. The respondents 1 and 2 filed separate written statements in the claim petitions admitting the accident. However, they denied that there was negligence on the part of the 2[nd] respondent. It was contended that the accident occurred due to the negligence on the part of the driver of **MACA NO. 271 OF 2009** **4** the jeep. Nevertheless, they contended that the lorry had a valid insurance coverage with the 3[rd] respondent, and therefore, the 3[rd] respondent was to indemnify the liability of the 1[st] respondent. 5. The 3[rd] respondent had filed separate written statements in all the claim petitions admitting that the lorry had a valid insurance policy. The 3[rd] respondent reiterated the contention of the respondents 1 and 2 that the accident occurred due to the negligence of the driver of the jeep. The 3[rd] respondent also disputed the age, occupation and income of all the petitioners in the claim petitions. 6. The Tribunal consolidated and jointly tried all the claim petitions. 7. The petitioners in all the claim petitions produced documents to substantiate their respective contentions. The disability certificate in each case was marked as Ext.X1. The respondents did not let in any evidence. 8. The Tribunal, by its common award, allowed the captioned claim petition, by permitting the petitioner to **MACA NO. 271 OF 2009** **5** realise from the 3[rd] respondent an amount of Rs. 1,19,600/with interest at the rate of 7% per annum from the date of petition till the date of realisation and a cost of Rs.500/-. 9. Dissatisfied with the quantum of compensation, the petitioner is in appeal. 10. Heard; Sri.T.K.Sandeep, the learned counsel appearing for the appellant/petitioner and Sri.Lal.K.Joseph, the learned counsel appearing for the 3rd respondentinsurer. 11. 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** 12. The petitioner in O.P(MV) No.1657/2000 had produced Ext.A1 FIR in Crime No.312/2000 of the Koyilandy Police Station which substantiates that the accident occurred due to the negligence of the 2[nd] respondent. Undisputedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the lorry. The 3[rd] respondent has admitted **MACA NO. 271 OF 2009** **6** the insurance policy and has not contended that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Notional income** 13. The appellant had averred in the claim petition that she was a coolie worker by profession and was earning a monthly income of Rs2,500/-. 14. The Tribunal, for the reason that the appellant had not produced any material to substantiate her assertion, fixed the notional income of the appellant at Rs.2,000/- per month. 15. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236] the Hon’ble Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 16. Following the yardstick in the afore-cited decision and taking into account the fact that the accident occurred in **MACA NO. 271 OF 2009** **7** the year 2000, I am of the opinion that the appellant's notional income can safely be fixed at Rs.2,500/- per month. ## **Loss of earnings** 17. On a perusal of Ext.X1 disability certificate, it can be seen that the appellant had sustained serious injury to her lungs and also had fractured her ribs, left femur and right and left public ramus. 18. The Tribunal, taking note of the grave injuries sustained by the appellant, held that she was indisposed for a period of six months. The said assessment of the Tribunal is reasonable and just, which I confirm. 19. In view of the re-fixation of the notional income of the appellant at Rs.2,500/- per month, I enhance the compensation for 'loss of earnings' at Rs.15,000/-, instead of Rs.12,000/- awarded by the Tribunal. ## **Multiplier** 20. Undisputedly, the appellant was aged 32 years at the time of accident. In the light of the law laid down in ## **Sarla Verma & Otrs Vs. Delhi Transport Corporation** **MACA NO. 271 OF 2009** **8** [(2009) 6 SCC 121], the relevant multiplier is ‘16’, instead of the multiplier '17' adopted by the Tribunal, which is erroneous. Therefore, I fix the multiplier at '16'. ## **Disability** 21. As per Ext.X1 disability certificate, the competent Medical Board of the Medical College Hospital, Calicut, the occupational disability of the appellant is assessed at 20%. I do not find any reason to differ with the assessment of the disability assessed by the Medical Board. Hence, I fix the functional disability of the appellant at '20%'. 22. Taking into account the above-mentioned factors, namely, the monthly income of the appellant at Rs.2,500/-, the disability at 20%, the multiplier at '16', I refix the compensation for loss due to disability at Rs.96,000/-, instead of Rs.81,600/- awarded by the Tribunal. ## **Pain and suffering** 23. As already found above under the head 'loss of earnings', the appellant had sustained serious injuries in the accident. She was treated as an inpatient for a period of 20 **MACA NO. 271 OF 2009** **9** days , was indisposed for a period of six months and has also suffered a permanent disability of 20%. In such circumstances, I hold that the appellant is entitled to a further amount of Rs.10,000/- under the head 'pain and suffering', i.e., a total amount of Rs.25,000/-. ## **Loss of amenities** 24 **.** Even though the appellant had claimed an amount of Rs.1,25,000/- towards future loss of income, the Tribunal has awarded only an amount of Rs.4,000/- under the said head, which according to me is only the lower side. 25. Again taking into account the grave injuries that the appellant had sustained, as already found under the head 'loss of earnings', I hold that the appellant is entitled for a further amount of Rs.16,000/- under the head 'loss of amenities', i.e, a total amount of Rs.20,000/-. ## **Other heads of compensation** 26. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. **MACA NO. 271 OF 2009** **10** 27. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I am of the definite opinion 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 [488 x 368] intentionally omitted <==** **----- Start of picture text -----**<br> SI Head of claim Amount awarded by Amounts<br>the Tribunal (in modified and<br>.No rupees) recalculated by<br>this Court<br>1 Loss of earnings 12,000 15,000<br>2. Bystander expenses 3,000 3,000<br>3. Medical Expenses 1,500 1,500<br>4. Extra-nourishment 1,000 1,000<br>5. Pain and sufferings 15,000 25,000<br>6. Loss of amenities 4,000 20,000<br>7 Loss due to disability 81,600 96,000<br>Total 1,18,600 161,500<br>======== =======<br>**----- End of picture text -----**<br> **MACA NO. 271 OF 2009** ## **11** In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.42,900/- with interest at the rate of 7% per annum from the date of petition till the date of realisation and a cost of Rs.4,000/-. The 3[rd] 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. ma/29.09.2021 Sd/- **C.S.DIAS, JUDGE** ## **/True copy/**