Rashida Beevi v. Prasannan and The Divisional Manager, National Insurance Co. Ltd.

``` 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. 2762 OF 2012`** ``` AGAINST THE AWARD DATED 14.03.2012 IN OP(MV) NO.603 OF 2007 OF FIRST ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM ``` ## **`APPELLANT/S:`** ``` RASHIDA BEEVI, W/O.KUNJUMON, SULTHANA MANZIL, MEMANA MURI, OACHIRA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. ``` ``` BY ADVS. SRI.K.SIJU SMT.BINDU GEORGE ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1 PRASANNAN, S/O.KRISHNAN KUTTY, PRASANNA BHAVANAM, KRISHNAPURAM P.O., ``` ``` ALAPPUZHA DISTRICT - 690 533. ``` - **`*2 SHANAVAS, S/O.KUNJUMON, MULLASSERIL VEEDU, NJAKKANAL P.O ALAPPUZHA DISTRICT - 690557. (DELETED)`** ``` * THE SECOND RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT, AS PER ORDER DATED 8/11/2021 IN I.A NO. 1/2021 IN MACA 2762/2012. ``` MACA 2762 of 2012 ## **`3 THE DIVISIONAL MANAGER,`** ``` THE NATIONAL INSURANCE CO.LTD., KOLLAM - 691001. ``` ``` BY ADV SMT.SARAH SALVY, SC, THE NATIONAL INSURANCE CO.LTD. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 2762 of 2012 3 ## **J U D G M E N T** This appeal is at the instance of the claimant in OP(MV) No.603 of 2007 on the file of First Additional Motor Accidents Claims Tribunal, Kollam, challenging the award on the ground of inadequacy of compensation. 2. The appellant met with a road traffic accident on 11.09.2004, while she was pillion riding KL-04/N-2058 motorcycle ridden by the 2nd respondent, in a rash and negligent manner. She suffered injuries including comminuted fracture of right humerus. She was admitted and treated at A M Hospital, Karunagapally, for 20 days. Even after discharge, she was continuing her treatment and was admitted for three days for removal of implants. She approached the Tribunal claiming compensation of Rs.1,50,000/-, but the Tribunal awarded only Rs.56,500/-. Hence this Appeal. MACA 2762 of 2012 4 3. The 1st respondent was the owner of the offending motorcycle, 2nd respondent was its rider and the 3rd respondent was its Insurer. Before the Tribunal, Respondents 1 and 2 remained _ex parte_ . The 3rd respondent-Insurer contested the case, but admitted the policy. According to them, the 2nd respondent rider had no driving licence and hence there was violation of the policy conditions. So ‘pay and recovery’ was ordered in favour of the Insurer. 4. In the appeal, the 1st respondent-owner of the offending vehicle opted to remain absent in spite of service of notice. The 2nd respondent-rider was removed from the party array. The 3rd respondent-Insurer entered appearance through counsel and admitted the policy, but reiterated their contention that there was violation of the policy conditions. MACA 2762 of 2012 5 ## 5. Heard learned counsel for the appellant and learned counsel for the 3rd respondent-Insurer. 6. The main grievance of the appellant is that though she was a house wife aged only 48, learned Tribunal fixed her notional income @ Rs.2,500/-, which is on the lower side. Relying on the decision **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]** , learned counsel for the appellant would submit that since the accident was in the year 2004, she was eligible to get her notional income fixed @ Rs.4,500/-. Even if she was a housewife earning no income, her services to the family had to be taken into account and so, her monthly income can be notionally fixed as Rs.4,500/-. She suffered comminuted fracture of right humerus, and she was hospitalised for 23 days in total. So loss of earning can be MACA 2762 of 2012 6 taken for a period of three months @ Rs.4,500/-. So, she is eligible to get Rs.13,500/-. After deducting Rs.5,000/already awarded, she is entitled to get the balance amount of Rs.8,500/- under the head ‘loss of earning. 7. Towards bystander expenses, this Court is inclined to award Rs.1,500/- more as she was hospitalised for 23 days in total. 8. Towards pain and suffering, Rs.5,000/- more is awarded as she has suffered comminuted fracture on right humerus with hospitalisation of 23 days. 9. Towards discomfort, learned Tribunal awarded only Rs.5,000/-. Since the appellant was a housewife aged 48, comminuted fracture of right humerus might have caused much discomfort, in her day to day affairs. So this Court is inclined to award Rs.10,000/- more towards, discomfort suffered by her. MACA 2762 of 2012 7 10. The compensation awarded under all other heads seems to be reasonable, and hence it needs no modification. |odification.|||| |---|---|---|---| |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Difference to<br>be drawn as<br>enhanced<br>compensation| |Loss of earning|Rs.5,000/-|Rs.13,500/-|Rs.8,500/-| |Bystander<br>expenses|Rs.2,000/-|Rs.3,500/-|Rs.1,500/-| |Pain & suffering|Rs.10,000/-|Rs.15,000/-|Rs.5,000/-| |Discomfort|Rs.5,000/-|Rs.15,000/-|Rs.10,000/-| |Total|||Rs.**25,000**/-| 11. In the result, the appellant is entitled to get enhanced compensation of Rs.25,000/- (8,500 + 1,500 + 5,000 + 10,000). 12. The 3rd respondent-Insurer is directed to deposit enhanced compensation of Rs.25,000/- (Rupee Twenty Five Thousand only), with 7.5% interest per annum, from the date of petition till the date of deposit, (excluding 164 MACA 2762 of 2012 8 days of delay in filing the appeal) before the First Additional Motor Accidents Claims Tribunal, Kollam, 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 liabilities, if any, towards tax, balance court fee, legal benefit funds etc. The pay and recovery order in favour of the 3rd respondent-Insurer is confirmed. The appeal is allowed to the extent as above, and no order is made as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/-