Raji V.R. v. Sunitha and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **FRIDAY, THE 3[RD] DAY OF DECEMBER 2021 / 12TH AGRAHAYANA, 1943** ## **MACA NO. 3054 OF 2019** **AGAINST THE AWARD IN OP(MV)NO. 1476/2015 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL ,TRIVANDRUM** ## **APPELLANT:** RAJI V.R., AGED 38 YEARS W/O.JAYAMON, PANAMOOTTIL, AZHEEKKAL, KARUNAGAPPALLY, KOLLAM. BY ADV BIJU BALAKRISHNAN **RESPONDENTS:** 1 SUNITHA, W/O.PRADEEP, CHEELANTHIMOOTTIL, ALAPPADU, CHERIYAZHEEKKAL P.O., KARUNGAPPALLY, KOLLAM. 2 PRADEEP T., S/O.THANKAPPAN, VADAKKAYYATH, SV MARKET P.O., KOZHIKODE MEKKU, KARUNGAPPALLY, KOLLAM. 3 THE CHOLAMANDALAM MS GENERAL INSURANCE CO.LTD., FLOOR NO.1, SARAN CHAMBERS, DIAMOND HILL, VELLAYAMBALAM, THIRUVANANTHAPURAM.-695001 4 AJIMON, S/O.RAVEENDRAN, 3/48A, PANAMOOTTIL, AZHEKKAL THEKKE, ALAPPAD, KARUNAGAPPALLY P.O., KOLLAM.-696033 5 REVI KUMAR B., S/O.BHARATHAN, CHERUMANNIL, SRAYIKADU, KARUNAGAPPALLY, KOLLAM.-696037 6 THE ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, **MACA NO. 3054 OF 2019** 2 THAKARAPARAMBU ROAD, PAZHAVANGADI, THIRUVANANTHAPURAM.-695601 BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.R.GIREESH VARMA SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.11.2021, THE COURT ON 03.12.2021 DELIVERED THE FOLLOWING: **MACA NO. 3054 OF 2019** 3 ## **JUDGMENT** Dated this the 3[rd] day of December, 2021 On 30.06.2015 at about 7.10 p.m., while the appellant was travelling as a pillion rider in motorcycle bearing registration No.KL 01/BC-8056 along the Karunagapally – Panickerkadavu junction, another motor cycle bearing registration No.KL-23/H8618 (offending vehicle), ridden by the 2[nd] respondent in a rash and negligent manner came and hit against the motor cycle in which the appellant was pillion rider. Due to the impact of the hit the appellant fell down on the road and sustained injuries and was taken to the hospital and treated as an in-patient. The appellant preferred a claim petition before the Tribunal under Section 166 of the Motor Vehicles Act. The Tribunal awarded a sum of ₹3,30,550/-. Dissatisfied with the amount awarded by the Tribunal, the claimant has preferred this appeal. ## 2. Heard. 3. The learned counsel for the appellant argued that Ext.A9, discharge certificate clearly proves that the permanent disability is 14% and notwithstanding the same the Tribunal has **MACA NO. 3054 OF 2019** 4 only taken 9% as the permanent disability for the purpose of the assessment. He submits that there is no justification at all for the Tribunal in reducing the disability assessed by the Medical Board. He also relies on the judgment of this Court in **Manikantan G. v. Janardhanan Nair and Others** [2021(5) KHC 305] as well as for the said purpose he also relied on the judgments in **National Insurance Company Ltd., Chennai v. Fathimath Zuhara @ Zuhara Razak** (2016 KHC 691), **Reliance General Insurance Co.Ltd., Ekm and others v. Vijayalakshmi and others** [2021 (5) KHC 390] and **Subramanian and others v. Mohandas and others** [2021 (1) KHC SN 14] for saying that the compensation awarded in the instant case is not just compensation and that the amounts awarded under the various heads are low and needs to be enhanced. He would also submit that claimant had undergone two surgeries and Ext.P9 medical certificate issued by the Department of Orthopaedics Medical College Hospital, Thiruvananthapuram, clearly shows that on account of the injuries, the claimant is unable to walk and has difficulty in climbing and getting down stairs. Considering the fact that she sustained a compound fracture to her left leg and taking into account the fact that she is a Tailor, I find that the amount **MACA NO. 3054 OF 2019** 5 awarded to the claimant is liable to be re-fixed. 4. Learned Senior counsel appearing for the respondents submitted that the Doctor or the claimant were not examined and even the claimant was also not examined and the Tribunal has taken into account all the circumstances and ordered just compensation for which no interference is called for. 5. After hearing both sides and perusing the documents made available by them and following the decision of the Hon'ble Supreme Court in _**Ramachandrappa v. Manager,**_ ## _**Royal Sundaram Alliance Insurance Company Limited**_ [ _(2011) 13 SCC 236_ ], the notional monthly income of the appellant is re-fixed at Rs.9,000/-. 6. Ext.A9 disability certificate clearly proves that the claimant has a permanent disability of 14%. Notwithstanding the same, the Tribunal has only taken 9% as the permanent disability for the purpose of the assessment. The said assessment is found to be un-reasonable. I therefore hold that the appellant has a functional disability of 14%. The appellant was aged 34 years and hence the relevant multiplier is '16'. Hence, the appellant will be entitled to entitled to a sum of Rs.2,41,920/- (9000x12x16x14%) **MACA NO. 3054 OF 2019** 6 towards compensation for loss due to disability. After deducting the sum of Rs.1,29,600/- granted by the Tribunal, the appellant will be entitled to an additional sum of Rs. **1,12,320** -/- under the above head. 7. It is to be noted that the claimant, a Tailor by profession has sustained serious injuries to her leg and making it difficult to even walk. Under such circumstances, the amount of Rs.38,900/- awarded by the Tribunal towards 'loss of amenities' has to be enhanced to Rs.50,000. The appellant is entitled an additional amount of Rs. **10,100/** - under the above head. 8. Taking into consideration the serious injuries sustained by the appellant, I hold that she was indisposed for a period of eight months. In view of the re-fixation of the monthly income, I award her an amount of Rs.72,000/- towards loss of earning instead of Rs.30,000/- awarded by the Tribunal. 9. The Tribunal has only awarded an amount of Rs.2,500/- under the head 'extra nourishment,' Rs.500/- towards 'damage to clothing', Rs.1,250/- towards 'byestander expenses' and Rs.22,000/- towards 'pain and suffering', which I feel is on the lower side. Hence, I enhance an additional amount of **MACA NO. 3054 OF 2019** 7 Rs. **2,500/** - Rs. **500** /-, Rs. **1,250/** - and Rs **.8,000** /- respectively, towards the above heads. 10. On an overall re-appreciation of the pleadings, 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 recalculated above and given in the table below for easy reference. |Sl.<br>No|Heads of claim|Amount awarded<br>by the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---| |1|Loss of earnings|30000/-|72,000/-| |2|Bye-stander expenses|1,250/-|2,500/-| |3|Extra nourishment|2,500/-|5,000/-| |4|Damage to clothing|500/-|1,000/-| |5|Medical expenses|96,000/-|96,000/-| |6|Pain and sufferings|22,000/-|30,000/-| |7|Loss of amenities|38,900/-|50,000/-| |8|Compensation for the loss<br>of earning power|nil|nil| |9|Transportation expenses|9800/-|9,800/-| |10|Compensation<br>for<br>continuing<br>permanent<br>disability|1,29,600/-|2,41,920/-| |||3,30,550/-|5,08,220/-| In the result, the appeal is allowed and the appellant is **MACA NO. 3054 OF 2019** 8 awarded an enhanced compensation of ₹ **1,77,670** /-/- (Rupees One Lakh Seventy Seven Thousand Six Hundred and seventy only) with interest at the rate of 8% per annum from the date of filing of the claim petition till the date of realisation, with proportionate costs. The 3rd respondent insurer shall deposit the additional compensation granted in this appeal along with the interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the appellant is liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellants shall be in accordance with law. **Sd/-** **MOHAMMED NIAS.C.P.** **JUDGE** dlk 29.11.2021