Rohini v. Kunhimuhammed & Others

## _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_ ## _`PRESENT`_ ## _`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`_ ``` TUESDAY, THE 26[TH] DAY OF MARCH 2024 / 6TH CHAITHRA, 1946 ``` ## _`MACA NO. 2368 OF 2013`_ ``` AGAINST THE AWARD DATED 25.02.2013 IN OP(MV) NO.1727 OF 2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY ``` ## _`APPELLANT/PETITIONER:`_ ``` ROHINI AGED 42 YEARS W/O.THOMAS T.M., THULISSERY HOUSE, PAYAM AMSOM DESOM, KOOTTUPUZHA P.O. BY ADVS. SRI.GRASHIOUS KURIAKOSE (SR.) SRI.GEORGE MATHEWS ``` ## _`RESPONDENTS/RESPONDENTS:`_ ``` 1KUNHIMUHAMMED S/O.ABOOBACKER, RESIDING AT AMBAYATHINGAL HOUSE,AYIKKARAPADI P.O., MALAPPURAM DISTRICT PIN - 673 637 2THE UNITED INDIA INSURANCE COMPANY LTD BRANCH OFFICE, MALAPPURAM, MALAPPURAM DISTRICT PIN - 676 505 3RAJANI W/O.LATE RAJEEVAN V, RESIDING AT PARADANCHAL HOUSE,ELANNUR, P.R.NAGAR P.O., MATTANNUR VIA,PIN - 670 702. 4K.NARAYANAN S/O.KUNHIRAMAN, RESIDING AT KOTTEKANDY HOUSE,KOLODE, IRIKKUR P.O., PIN - 670 593. BY ADV JOHN JOSEPH VETTIKAD ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA. No. 2368 of 2013 ``` ``` ..2.. ``` ## **SOPHY THOMAS, J.** ## **=====================** M.A.C.A. No. 2368 of 2013 ## **========================** ## _**J U D G M E N T**_ **Dated this the 26[th] day of March, 2024** The petitioner in O.P. (MV) No. 1727 of 2004 on the file of the Motor Accident Claims Tribunal, Thalassery filed this appeal, challenging the quantum of compensation awarded by the Tribunal. 2. The appellant/petitioner met with a road traffic accident on 17.05.2004 at 09.45 am, while she was waiting in a bus shelter, near Irikkur Government Hospital. KL-11A-6534 lorry, driven by one Mr. Rajeevan came from Iritty side, rammed into the waiting shed, where the appellant was standing, causing serious bodily injuries to her. She was rushed to AKG Hospital, Kannur, and from there to Paiyaram Medical College Hospital, where she was admitted and treated from 17.05.2004 till ``` MACA. No. 2368 of 2013 ``` **==> picture [31 x 7] intentionally omitted <==** 05.07.2004. Her left leg was amputated above the knee, causing permanent disability of 80%. She was a coolie aged 33, earning monthly income of Rs.3,000/-. Though she claimed a compensation of Rs.6,00,000/-, the Tribunal awarded only lesser amount of Rs.5,19,600/-, and hence this appeal. 3. The driver of the offending lorry, Sri. Rajeevan also died in that incident. His legal heirs are additional respondents 3 and 4. 1[st] respondent is the owner of the offending lorry. The 2[nd] respondent its insurer, admitted the policy during the period of incident. 4. In the appeal notice to respondents 1, 3, and 4 were dispensed with, as the 2[nd] respondent insurer entered appearance, and admitted the policy. 5. Now this Court is called upon to find out whether there is any illegality, impropriety or irregularity in the award of the Tribunal warranting interference by this Court. 6. Heard learned counsel for the appellant, and learned ``` MACA. No. 2368 of 2013 ``` **==> picture [31 x 7] intentionally omitted <==** counsel for the 2[nd] respondent insurer. 7. The main challenge posed by the appellant is with respect to the notional income fixed by the Tribunal. Though the appellant was earning monthly income of Rs.3,000/-, as a coolie worker, learned Tribunal fixed her notional income @ Rs.2,000/-. Moreover, she suffered amputation of her left leg above knee, making her permanently disabled, to do any kind of coolie work. So, her functional disability ought to have been taken as 100%. Further, the compensation awarded under other heads are also inadequate considering the nature of injuries, period of hospitalization, loss of amenities, she had to face in her future life etc etc. 8. The appellant was claiming that, she was a 33 year old coolie worker at the time of accident, earning monthly income of Rs.3,000/-. But, learned Tribunal fixed her notional income @ Rs.2000/-. Even going by the decision in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company**_ ``` MACA. No. 2368 of 2013 ``` ``` ..5.. ``` _**Limited [AIR 2011 SC 2951]**_ , in the year 2004, she was eligible to get her monthly income fixed @ Rs.4,500/-. But, her claim in the O.P.(MV) was that, she was earning monthly income of Rs.3,000/-. So we need not go beyond that. So, this Court is inclined to fix her monthly income notionally @ Rs.3,000/-. When loss of earning for six months is assessed @ Rs.3,000/-, it will come to Rs.18,000/- (3,000 x 6). She was already awarded Rs.12,000/- towards loss of earning, so she is eligible to get the balance amount of Rs.6,000/- as enhanced compensation towards loss of earning. 9. Regarding disability compensation, the appellant suffered amputation of her left leg, above knee. According to her, since she was a coolie worker, she was not able to do that job any more. So, her functional disability could have been taken as 100%. Learned counsel for the 2[nd] respondent pointed out that, going by the Employees Compensation Act Schedule I Part-II Serial No.18, amputation below hip with stump exceeding 12.70 ``` MACA. No. 2368 of 2013 ``` **==> picture [31 x 7] intentionally omitted <==** cms in length measured from tip of great trenchanter but not beyond middle thigh, the percentage of loss of earning capacity is to be taken as 70%. In paragraph 26 of the award of the Tribunal, it could be seen that the learned Tribunal analyzed the evidence of PWs 2 and 3 and Exts. X1 and X2 disability certificates, and accepted Ext. X1 disability certificate showing 80% permanent disability to the petitioner. This Court finds no reason to disturb that finding, so that, her permanent disability is to be accepted as 80%. We have fixed her monthly notional income @ Rs.3,000/-. Since she suffered permanent disability of 80% this court is inclined to consider her future prospects also. Going by the decision _**National Insurance Company Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC 680],**_ being a self-employed person, aged below 40, she was eligible to get 40% addition towards future prospects. So, she was entitled to fix her monthly income @ Rs.4,200/- (3000 + 40%), for assessing the disability compensation. The multiplier applicable is 16, as ``` MACA. No. 2368 of 2013 ``` **==> picture [31 x 7] intentionally omitted <==** she was aged only 33. So, the disability compensation can be reassessed as Rs.6,45,120/- (4,200 x 12 x 16 x 18/100). She was already awarded Rs.3,07,200/- under that head. So, she is entitled to get the balance amount of Rs.3,37,920/- as enhanced compensation towards permanent disability. 10. Towards pain and suffering, though she claimed Rs.80,000/-, learned Tribunal awarded only Rs.75,000/-. She suffered crush injury on her left leg, and it was amputated above the knee. She was hospitalized for 50 days. Considering the nature of injury and period of hospitalization, this court is inclined to award Rs.5,000/- more towards pain and suffering. 11. Towards loss of amenities, learned Tribunal awarded Rs.40,000/-. An young lady, aged 33 lost her left leg forever, affecting the amenities in her life to a great extent. Considering that aspect, this Court is inclined to award Rs.10,000/- more towards loss of amenities. 12. Towards expenses for artificial limb, learned Tribunal ``` MACA. No. 2368 of 2013 ``` **==> picture [31 x 7] intentionally omitted <==** awarded Rs.25,000/-. It is a matter of common knowledge that an artificial limb needs periodical repair, maintenance and replacement. Considering that aspect, this Court is inclined to award an additional amount of Rs.20,000/- for repair, maintenance and replacement of the artificial limb. 13. The enhanced compensation awarded in this appeal is given in the table below:- |_`SL. No`_|_`Head of`_<br>_`claim`_|_`Amount`_<br>_`awarded`_<br>_`by the`_<br>_`Tribunal`_|_`Amount`_<br>_`awarded in`_<br>_`appeal`_|_`Amounts`_<br>_`deducted`_<br>_`in appeal`_|_`Difference`_<br>_`to be`_<br>_`drawn as`_<br>_`enhanced`_<br>_`compensati`_<br>_`on`_| |---|---|---|---|---|---| |_`1`_|_`Loss of`_<br>_`earnings`_|_`12,000/-`_|_`18,000/-`_||_`6000/-`_| |_`2`_|_`Disability`_<br>_`compensation`_|_`3,07,200/`_<br>_`-`_|_`6,45,120/-`_||_`3,37,920/-`_| |_`3`_|_`Pain and`_<br>_`suffering`_|_`75,000/-`_|_`80,000/-`_||_`5,000/-`_| |_`4`_|_`Loss of`_<br>_`amenities`_|_`40,000/-`_|_`50,000/-`_||_`10,000/-`_| |_`5`_|_`Artificial`_<br>_`limb`_|_`25,000/-`_|_`45,000/-`_||_`20,000/-`_| |_`Total`_|||||_`3,78,920/-`_| 14. In the result the appellant is entitled to get enhanced compensation of Rs. 3,78,920/- (6000 + 3,37,920 + 5,000 + 10,000 + 20,000) with 7.5% interest. ``` MACA. No. 2368 of 2013 ``` **==> picture [31 x 7] intentionally omitted <==** 15. The 2[nd] respondent Insurer is directed to deposit the enhanced compensation of Rs. 3,78,920 /- in the bank account of the appellant with interest @ 7.5% per annum from the date of petition till the date of deposit (except 124 days of delay in filing the appeal) within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund. The appeal stands allowed to the extent as above, and no order is made as to costs. ## **Sd/-** ## **SOPHY THOMAS** ## **JUDGE** RMV ``` TRUE COPY ``` ``` P.A.TO JUDGE ```