Rajlakshmi Vijayan v. Gretta Joy and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR TUESDAY, THE 31ST DAY OF OCTOBER 2017/9TH KARTHIKA, 1939 MACA.No. 2802 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 309/2009 of ADDL. MACT,ERNAKULAM DATED 03-07-2012 APPELLANT(S):PETITIONER IN O.P.(MV).309/2009 -------------------------------------------------------- RAJLAKSHMI VIJAYAN W/O.K.P.VIJAYAN, RESIDING AT “PRAKASAM”, KODUVATHARA ROAD, EDAPPALLY P.O, KOCHI 682 024. BY ADV. SRI.V.M.SYAM KUMAR RESPONDENT(S):RESPONDENTS IN O.P.(MV).NO.309/2009 ---------------------------------------------------------------- 1. GRETTA JOY W/O.JOY, RESIDING AT KAITHAKARI HOUSE, MANNANAM KARA, AMALAGIRI BHAGAM, AATHIRAMPUZHA VILLAGE, KOTTAYAM 686 562. 2. JOY MATHEW, S/O.MATHEW, RESIDING AT KAITHAKARI HOUSE, MANNANAM KARA,AMALAGIRI BHAGAM, AATHIRAMPUZHA VILLAGE, KOTTAYAM 686 562. 3. NATIONAL INSURANCE CO.LTD, ERNAKULAM BRANCH 682 011. 4. SHINEY, S/O.JOSEPH, KULANGARAVEEDU, ATHIRAMPUZHA P.O, KOTTAYAM 686 562. 5. GEORGE JOSEPH,S/O.JOSEPH, KULANGARAVEEDU, AATHIRAMPUZHA VILLAGE, KOTTAYAM 686 562. 6. ORIENTAL INSURANCE CO.LTD KOTTAYAM BRANCH,PIN- 686 501. R6 BY ADV. SRI.P.JACOB MATHEW R6 BY ADV. SRI.MATHEW JACOB R3 BY ADV. SRI.RAJAN P.KALIYATH R1 & 2 BY ADV. SRI.T.J.MICHAEL R BY SRI.M.A.GEORGE R BY SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31-10-2017 ALONG WITH M.A.C.A.NO.2816/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ. ========================== M.A.C.A. Nos.2802 & 2816 OF 2012 ==========================** Dated this the 31[st] day of October, 2017 ## **JUDGMENT** _Ravikumar, J._ In a motor vehicle accident arising out of collision of the car bearing Reg.No.KL-5/N-540 and the autorickshaw bearing Reg.No.KL-5/Y-5212, the appellants who were the passengers in the autorickshaw sustained injuries. The appellant in the former appeal filed O.P.(MV)No.309 of 2009 claiming a total compensation of Rs.2,50,400/- and the appellant in the latter appeal filed O.P.(MV) No.308 of 2009 claiming a total compensation of Rs.6,50,400/-. As per a common judgment dated 3.7.2012, the Tribunal awarded an amount of Rs.42,035/- in O.P.(MV)No.308/2009 and an amount of Rs.3,000/- in O.P.(MV)No.309/2009. The aforesaid sums were ordered to carry interest at the rate of 9% per annum from the date of the petition till realisation. The respective claimants filed the **M.A.C.A.2802 & 2816/2012** 2 captioned appeals seeking enhancement of the quantum of compensation. 2. We have heard the learned counsel for the appellants, the learned counsel for the third respondent and also the learned counsel for the 6[th] respondent. The Tribunal found that the accident occurred due to the negligent driving of the first respondent viz., driver of the car involved in the accident. Consequently, the third respondent insurance company was called upon to indemnify the second respondent, who was the insured owner of the said vehicle. There is no dispute regarding the cause of the accident, the liability of the third respondent to indemnify the second respondent. In such circumstances, we are only called upon to consider the question whether the appellants are entitled to get enhanced compensation in these appeals. ## M.A.C.A.No.2802/2009 3. This appeal arises from the judgment and award in O.P.(MV). No.309/2009. The appellant sustained the following injuries in the **M.A.C.A.2802 & 2816/2012** 3 accident. “Pain both legs, multiple abrasion both legs and forehead edima left forearm, periniel to wrist tenderness right.” Though C.T.scan was taken on 22.2.2008, nothing was noted therein. Ext.A3 is the series of medical bills for an amount of Rs.1,635/-. The Tribunal accepted the same. However, taking note of the injuries, the Tribunal granted only a consolidated amount of Rs.3,000/- as compensation. We have already adverted to the injuries sustained by the appellant in the accident. The fact is that in connection with the injuries sustained, she was not even hospitalised. There are injuries and needless to say that she incurred no disability owing to the injuries sustained in the accident. But at the same time, the fact is that she was taken to hospital and given treatment and discharged from there. No amount was granted towards transportation expenses. So also, no amount was granted towards damage to clothing. The appellant's family would not have obtained her service for some days taking into account the nature of the injuries. In such circumstances, we are of the **M.A.C.A.2802 & 2816/2012** 4 view that a consolidated amount of Rs.5,000/- can be granted additionally. It is granted. M.A.C.A.No.2816 of 2012 4. This appeal arises from the judgment and award in O.P.(MV) No.308/2009. Ext.A2 is the wound certificate which would reveal that in the accident, the appellant sustained skin abrasion below right knee. The Tribunal took note of the fact that in connection with the treatment for the injuries sustained in the accident, wound debridement and skin grafting were done. But, it is a fact that the appellant was discharged from the hospital on the same day itself. Later, she was admitted in the hospital on 30.8.2009 and was discharged on 10.9.2009. The Tribunal awarded a total compensation of Rs.42,035/-. The appellant was aged 25 years and she claimed that she was a Project Engineer earning Rs.40,000/- per month. However, she has not produced any material to establish her averments regarding occupation and income. In such circumstances, the Tribunal fixed the monthly income notionally. We **M.A.C.A.2802 & 2816/2012** 5 do not find any fault with the Tribunal in fixing the monthly income of the appellant, notionally in the said circumstances. But at the same time, taking into account the fact that the accident had occurred on 22.8.2008, we are of the view that for the purpose of calculating compensation for loss of earnings, the service rendered by the appellant as housewife can be equated in terms of money. At the time of the accident, the appellant was aged only 25 years and in such circumstances, the monthly income of the appellant can be taken as Rs.3,000/- in the light of the decision of this Court in **Krishnadas v. Henry Joseph [2011 (4) KLT 716]** . We are of the view that since wound debridement and skin grafting were done, it is only proper to take the period as two months for the purpose of calculating compensation for loss of earnings. Accordingly, the appellant is entitled to get Rs.6,000/- additionally towards loss of earnings. Towards extra nourishment, taking into account the period of hospitalisation, we are inclined to grant an amount of Rs.600/- more. We have already found that the family must have deprived her service at least for a period of one week. Thus, it is evident that, she must have **M.A.C.A.2802 & 2816/2012** 6 been deprived of enjoyment of her life as before for sometime. We are inclined to grant an amount of Rs.3,000/- additionally towards loss of amenities. We do not find any reason to interfere with the compensation granted under other heads. In such circumstances, the appellant will be entitled to an additional compensation of Rs.9,600/-. 5. The additional compensation granted in both the appeals will carry interest at the rate of 8% per annum from the date of the petition till realisation. In the absence of any dispute regarding the liability to indemnify the insured owner, the third respondent is directed to deposit the amount awarded additionally in both the appeals within a period of one month from the date of receipt of a copy of this judgment. Appeals are disposed of. No order as to costs. **Sd/-** ## **C.T. RAVIKUMAR (JUDGE)** **Sd/B.SUDHEENDRA KUMAR (JUDGE)** **spc/** # **M.A.C.A.2802 & 2816/2012** 7 **M.A.C.A.2802 & 2816/2012** 8 ## **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **M.A.C.A.2802 & 2816/2012** 9