Remadevi W/o. Asokan v. Shajahan S/o Ibrahim and United India Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE 21ST DAY OF NOVEMBER 2016/30TH KARTHIKA, 1938 ## MACA.No. 1783 of 2016 () ------------------------AGAINST THE AWARD IN OPMV 1470/2012 of M.A.C.T.,PERUMBAVOOR APPELLANT(S)/PETITIONER: ----------------------- REMADEVI W/O.ASOKAN, PUTHENVEEDU, EAST KADUNGALLOOR, UC COLLEGE P.O., ALUVA. ## BY ADV. SRI.A.N.SANTHOSH RESPONDENT(S)/RESPONDENTS 1 AND 3: ---------------------------------- 1. SHAJAHAN S/O.IBRAHIM, POONCHERIL HOUSE KUNJATTUKARA, EDATHALA P.O., ALUVA-683564 2. UNITED INDIA INSURANCE COMPANY LTD. DO, PUTHUSSERY COMPLEX, ALUVA-683101. R2 BY ADV. SRI.P.JAYASANKAR R2 BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ. ========================== M.A.C.A. No.1783 OF 2016 ==========================** Dated this the 21[st] day of November, 2016 ## **JUDGMENT** _Ravikumar, J._ The injured-appellant preferred this appeal aggrieved by the quantum of compensation granted by the Motor Accidents Claims Tribunal in O.P.(MV).No.1470 of 2012. On 12.8.2012, the appellant was travelling as a pillion rider on a bike bearing Reg.No.KL-42/B4845 driven by her husband. When they reached near Athani, the offending vehicle which is a car bearing Reg.No.KL-07/AE 9204, driven by the second respondent, proceeding to the same direction hit on the rear side of the motor cycle. Consequently, both of them sustained injuries. Going by Ext.A9, the appellant sustained abrasion and swelling on right parietal region scalp and there was also bleeding from right year. Initially, she was taken to Karothukuzhi Hospital, **M.A.C.A.1783/2016** 2 Aluva and from there, she was referred to Amritha Institute of Medical Sciences, Ernakulam. Ext.A10 discharge certificate would reveal that she sustained post traumatic moderate head injury, bilateral temporal extradural haematoma, right insular cortex and left temporal contusion and multiple fractures involving squamous part of right temporal bone. She also sustained injuries on greater wing of sphenoid with opacification of right mastoid air cells. She remained as an inpatient for four days. Ext.C1 disability certificate would reveal that she incurred a whole body disability of 32.1%. It is issued by the medical board attached to Government Medical College Hospital, Thrissur. The medical board assessed her neurological disability as 30% and ENT disability as 3% and then applying the formula applicable, assessed the whole body disability as above. On the date of the accident, the appellant was aged only 47 years. The Tribunal granted a total compensation of `3,54,384/- as against a claim of `6,00,000/-. It is in the said circumstances that seeking enhancement of quantum of compensation that the captioned appeal **M.A.C.A.1783/2016** 3 has been preferred. 2.We have heard the learned counsel for the appellant Sri.A.N.Santhosh and Sri.P.Jayasankar, the learned counsel appearing for the second respondent. In the absence of any dispute regarding the accident, cause of the accident and liability to indemnify the insuredowner of the offending vehicle, the only question to be decided in this appeal is regarding the entitlement of the appellant for enhanced compensation. In such circumstances, issuance of notice to the first respondent is dispensed with and on consent of parties, we are proceeding to consider the appeal on merits, at the admission stage itself. 3.The main contention of the appellant is that though the appellant was only aged 47 years at the time of the accident, disregarding her claim of `15,000/- as monthly income, the Tribunal fixed the monthly income notionally only as `5,000/-. The learned **M.A.C.A.1783/2016** 4 counsel for the appellant submitted that it is the erroneous fixation of the monthly income that deprived the appellant just compensation. It is the further contention that despite the fact that the appellant had sustained neurological disability of 30% and total whole body disability of 32.1%, the Tribunal granted only meager sums under the heads 'pain and suffering' and 'loss of amenities'. It is further submitted that the Tribunal ought to have taken more than four months towards loss of earning. 4.Per contra, the learned counsel for the second respondentinsurance company contended that the appellant cannot have any grievance with respect to the fixation of monthly income as she had failed to adduce any evidence regarding her occupation. It is submitted that in such circumstances, the Tribunal has correctly fixed the monthly income treating her as housewife. The learned counsel further submitted that a glance at the schedule of compensation given in the impugned judgment would undoubtedly go to show that the **M.A.C.A.1783/2016** 5 Tribunal has granted adequate compensation on all heads. In short, the contention is that no appellate interference is called for. 5.With respect to the fixation of monthly income, evidently, the appellant averred in the claim petition that she is a housewife and was earning `15,000/- per month. The appellant herself admits the fact that she is a housewife. In the matter of fixation of monthly income of a housewife for calculation purpose in a claim for compensation filed under section 166 of the M.V.Act, the decision of Hon'ble Apex Court in **Lata Wadhwa v. State of Bihar [AIR 2001 SC 3218]** and also the decision of this Court in **Krishnadas v. Henry Joseph [2011 (4) KLT 716]** are to be taken into account. Going by the said decisions, in the case of a housewife belonging to the age group of 3459 years, the monthly income has to be taken as `3,000/-. The accident in question occurred on 12.8.2012. In such circumstances, in the light of the aforesaid decisions and taking into account the year of the accident as also the age of the appellant at the time of the accident, **M.A.C.A.1783/2016** 6 we do not find any fault with the Tribunal in fixing the monthly income as `5,000/- for calculation purpose. The multiplier was also correctly identified by the Tribunal with reference to the age of the appellant. We also do not find any reason to interfere with the assessment of permanent disability by the Tribunal as the entire percentage of disability assessed by the board in Ext.C1 was taken into account for granting compensation. In such circumstances, compensation granted for permanent disability does not call for any appellate interference. At the same time, on a careful perusal of the impugned award, we are of the view that the appellant is entitled to get enhancement of compensation under certain other heads. As noticed hereinbefore, neurological disability of the appellant was assessed in Ext.C1 by the medical board as 30%. Besides the same, she had also incurred ENT disability of 3%. In such circumstances, taking into account the nature of the disability sustained by the appellant in the accident and their aftermath, we are of the view that it will certainly affect her enjoyment of pleasures of life and therefore, **M.A.C.A.1783/2016** 7 the quantum of compensation granted towards loss of amenities by the Tribunal is too meagre. In such circumstances, we are inclined to grant an additional compensation of `30,000/-. It is awarded. Taking into account the nature of the injuries, we are of the view that the appellant is entitled to get an enhancement of compensation under the head 'pain and suffering' as she would have definitely suffered enormous pain due to the injuries sustained in the accident. Additional sum of `10,000/- is awarded on this head in the said circumstances. The Tribunal took only four months' period for loss of earning. Evidently, it is the period during which the family members were deprived of the services of the appellant. Going by the nature of the injuries as mentioned above, we are of the view that the period ought to have been taken as six months. In that view of the matter, the appellant is entitled to get an additional compensation of `10,000/-. It is granted. Though the appellant had been an inpatient only for a period of four days, the nature of the injuries especially neurological disability to the extent of 30% would suggest that she must have had 8 **M.A.C.A.1783/2016** the services of a bystander for quite some time. In such circumstances, we are inclined to grant `5,000/- more towards bystanders expenses. In the light of the discussions as above, the appellant is entitled to get an additional compensation of `55,000/-. It is awarded. The said amount will carry 8% interest from the date of the petition till realisation. The second respondent is directed to deposit the said amount along with interest thereon within two months from the date of receipt of a copy of this judgment. No order as to costs. ## **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** ## **K.P.JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.1783/2016** 9 **C.T. RAVIKUMAR, J.** **M.A.C.A.1783/2016** 10 **JUDGMENT September, 2010**