Rugmini v. Rizal N.A., United India Insurance Co. Ltd., and Alikunju

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 18TH DAY OF JULY 2017/27TH ASHADHA, 1939** **MACA.No. 1905 of 2011 --------------------------** **AGAINST THE AWARD IN OP(MV).412/2006 of MACT,THODUPUZHA DATED 30-06-2011** ## **APPELLANT/PETITIONER :** **------------------------** **RUGMINI, AGED 58 YEARS, W/O.NATARAJAN, RUGMINI BHAVAN, ETTY CITY BHAGOM, ANNACHAL KARA KUNJITHANI VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT.** **BY ADVS.SRI.T.J.MICHAEL SRI.JOSE MATHEW (KAVALAKALAM)** ## **RESPONDENTS/RESPONDENTS:** **----------------------------** **1. RIZAL.N.A** **HOUSE NO. 42/1112, MARKET ROAD, ERNAKULAM- 682018.** **2. UNITED INDIA INSURANCE CO.LTD. REP. BY ITS BRANCH MANAGER, SHARANYA, HOSPITAL ROAD KOCHI- 682 011** **3. ALIKUNJU, S/O KOCHU MUHAMMED CHITTATHU (CHANERIL) HOUSE, 2ND MILE KARA PALLIVASAL VILLAGE, IDUKKI DISTRICT- 685 565.** **R2 BY ADV. SMT.R.REMA BY SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ----------------------------------------------M.A.C.A.No.1905 of 2011** ## **-----------------------------------------------** Dated this the 18[th] day of July, 2017 ## **J U D G M E N T** ## **ANIL K. NARENDRAN, J** ## . This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Thodupuzha dated 30.6.2011 in O.P.(MV) No.412/2006, a claim petition filed by the appellant/claimant under section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained in a motor accident which occurred on 16.9.2003 while she was travelling as a passenger in an autorickshaw bearing registration No.KL-7/AC-1756. When the said autorickshaw reached the place of accident, a jeep bearing registration No.KRE-1557 owned by the 1[st] respondent, insured with the 2[nd] respondent and driven by the 3[rd] respondent came in the opposite direction and hit on the autorickshaw. As a result of the accident, the appellant/claimant sustained serious injuries. Alleging that the accident occurred due to the rash and negligent driving of the jeep by the 3[rd] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of `5,36,000/- under different heads. However, for the purpose of payment of court fee, the said claim was limited to M.A.C.A.No.1905 of 2011 :-2-: `2,50,000/-. 2. Before the Tribunal, Exts.A1 to A15 were marked on the side of the appellant/claimant. Respondents have not chosen to adduce any oral or documentary evidence. 3. After considering the materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the jeep by the 3[rd] respondent driver. Since the said vehicle was covered by a valid insurance policy, the 2[nd] respondent insurer was held liable to indemnify the 1[st] respondent owner. Under different heads, the Tribunal awarded a total compensation of `3,44,880/-. However, the Tribunal limited the award of compensation to `2,50,000/- on the ground that the appellant/claimant has paid court fee only to that extent. The 3[rd] respondent insurer was directed to deposit the said amount of `2,50,000/- before the Tribunal together with interest at the rate of 7.5% per annum from the date of petition, i.e., from 27.6.2006 till realisation. 4. Dissatisfied with the quantum of compensation granted by the Tribunal under different heads and challenging the award to the extent the total compensation is limited to `2,50,000/-, the appellant/claimant is before this Court in this appeal. M.A.C.A.No.1905 of 2011 :-3-: 5. We heard arguments. 6. The accident is of the year 2003 and at the time of accident, the appellant was aged 56 years. She claimed a monthly income of `3,250/- as a labourer. However, in the absence of any reliable materials, the Tribunal took the monthly income notionally as `2,000/for the purpose of assessing compensation under different heads. 7. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236],** in respect of a coolie who met with a motor accident in the year 2004, the Apex Court fixed the notional monthly income as `4,500/- for assessing compensation under different heads. In the instant case, considering the fact that the accident is of the year 2003 and at the time of the accident, the appellant was an able bodied person aged 56 years, we deem it appropriate to take the notional monthly income as `3,250/-, which is the monthly income claimed in the claim petition, for the purpose of assessing compensation under different heads. 8. The injuries sustained by the appellant, as borne out from Ext.A2 wound certificate, read thus ; “(i) Left leg lacerated wound 15x5 cm with fracture of both bones; (ii) Right leg punctured wound with fracture both bones. (iii) Lacerated wound 1 cm. long over nasal bridge.” ## M.A.C.A.No.1905 of 2011 :-4-: X-ray showed fracture of tibia, fibula of both leg, fracture lower end of right femur. In connection with the accident, the appellant had undergone inpatient for a total period of 93 days. The details of the treatment the appellant had undergone, as borne out from Ext.A6 treatment certificate, read thus ; “Primary wound debridement for right leg and POP cast were given and external fixator on left leg and POP slab were applied. External fixator was removed on 11.10.03. Skin grafting was done on 21.10.03 and the patient was discharged with long leg cast on left lower limb.” Ext.A10 out patient card would show that the appellant had mal union of both bones of right leg, non-union of left femur and she was treated with external fixator. Ext.A11 disability certificate issued by the Medical Board at Taluk Head Quarters Hospital, Thodupuzha, would show that the appellant is having a permanent disability of 48%. As per the said certificate, the appellant has no movements in her left knee and left ankle and the movements are very much restricted in the left hip. She cannot stand herself on the left leg and there is sinus discharge with shin dislocation. 9. The appellant appeared before the Tribunal on 02.06.2010 and the observations made by the Tribunal in paragraph 15 of the award read thus ; M.A.C.A.No.1905 of 2011 :-5-: “On observation, the petitioner is unable to walk and stand on her legs, wound on the left leg not healed. Movements of left ankle restricted. Movements of left knee restricted. She was lifted and brought for observation. Her left leg has become thin below knee.” 10. The compensation awarded by the Tribunal under different ## heads reads thus ; |Sl.<br>No.|Head of claim|Amount<br>claimed<br>(in Rupees)|Amount<br>awarded<br>(in Rupees)| |---|---|---|---| |1|Loss of earning|50,000/-|48,000/-| |2|Partial loss of earning|25,000/-|25,000/-| |3|Transportation expenses|25,000/-|15,000/-| |4|Damage to clothes|1,000/-|1,000/-| |5|Extra nourishment|10,000/-|10,000/-| |6|Medical expenses|1,50,000/-|27,200/-| |7|Bystander expenses|25,000/-|15,000/-| |8|Loss of amenities|50,000/-|50,000/-| |9|Pain and suffering|1,00,000/-|50,000/-| |10|Disability|1,00,000/-|1,03,680/-| ||TOTAL|`5,36,000/-|`3,44,880/-| 11. Towards 'loss of earning', the Tribunal awarded a sum of `48,000/-, at the rate of `2,000/- for a period of 24 months. The Tribunal awarded a further sum of `25,000/-, towards 'partial loss of earning'. 12. After awarding loss of earning for a considerably long period ## M.A.C.A.No.1905 of 2011 :-6-: of 24 months, and assessing disability compensation with reference to the age of the appellant as on the date of accident, and the percentage of disability as certified in Ext.A11 disability certificate, the Tribunal went wrong in awarding a further sum of `25,000/-, towards 'partial loss of earning'. Therefore, the compensation awarded under the said head has to be deducted from the additional compensation payable in this appeal under the head 'loss of earning'. 13. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, we find that the Tribunal is justified in awarding 'loss of earning' for a period of 24 months. Since we have already re-fixed the monthly income of the appellant notionally at `3,250/-, the compensation payable under the head 'loss of earning' comes to `78,000/- (3,250x24), resulting an additional compensation of ` **5,000** /-, after deducting `48,000/- awarded under the said head and `25,000/- awarded under the head partial loss of earning (78,00048,000-25,000). 14. Towards 'loss of amenities', the Tribunal awarded a sum of `50,000/- and the same represents just and reasonable compensation, considering the nature of injuries sustained and the disability that has M.A.C.A.No.1905 of 2011 :-7-: arisen therefrom, as borne out from medical records, which warrants no enhancement in this appeal. 15. Towards 'pain and suffering', the Tribunal awarded a sum of `50,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, we are of the view that the said amount represents just and reasonable compensation under that head, which warrants no enhancement in this appeal. 16. Towards 'extra nourishment', the Tribunal awarded a sum of `10,000/-. The accident is of the year 2003. The appellant had undergone inpatient treatment for a period of 93 days. Considering the physical condition of the appellant noted in paragraph 15 of the award, which we have already referred to hereinbefore in paragraph 9 of this judgment, the compensation awarded as above under the head 'extra nourishment' represents just and reasonable compensation, which requires no enhancement in this appeal. 17. Towards 'bystander expenses', the Tribunal awarded a sum of `15,000/- at the rate of `1,500/- per month for a period of 10 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from the medical records, the Tribunal was justified in awarding bystander expenses for a period ## M.A.C.A.No.1905 of 2011 :-8-: of 10 months. Since the accident is of the year 2003, she is entitled for bystander expenses at the rate of `150/- per day. Therefore, the compensation under the head 'bystander expenses' is re-worked as `45,000/- (150x300), resulting an additional compensation of ` **30,000** /-. 18. Towards disability compensation the Tribunal awarded a sum of `1,03,680/-, reckoning the monthly income as `2,000/-, applying a multiplier of '9' and adopting the percentage of disability as 48%. Since we have re-fixed the monthly income notionally at `3,250/-, the compensation payable under the head 'disability' is refixed as `1,68,480/- (3,250x12x9x48/100), resulting an additional compensation of ` **64,800/-** (1,68,480-1,03,680). 19. The compensation awarded by the Tribunal under other heads represents just and reasonable compensation, which warrants no enhancement in this appeal. 20. As we have already noticed, though the Tribunal assessed the total compensation payable as `3,44,880/-, only a sum of `2,50,000/- was awarded to the appellant on the ground that she paid court fee in the claim petition only to that extent. In a claim petition filed under Section 166 of the Motor Vehicles Act, the Tribunal has to M.A.C.A.No.1905 of 2011 ## :-9-: award just and reasonable compensation to the victim of a motor accident or to the legal heir of the deceased, as the case may be. Even in a case in which the claimant has paid court fee only for a lesser extent, the Tribunal has to award just and reasonable compensation, however the compensation so awarded shall be disbursed only after deducting the balance court fee payable by the claimant. Therefore, we hold that the appellant/claimant is entitled for the entire amount of `3,44,880/- originally awarded by the Tribunal, however, subject to satisfaction/deduction of the court fee payable for compensation in excess of `2,50,000/-. In the result, we hold that the appellant/ claimant is entitled for disbursement of the balance compensation of ` **94,880/-** (3,44,880-2,50,000) awarded by the Tribunal, subject to realisation of the balance court fee payable. 21. In the result, the appellant/claimant will be entitled to a sum of ` **94,880** /- originally awarded by the Tribunal, which will carry interest at the rate of 7.5% per annum from the date of petition till realisation, and a further sum of ` **99,800** /- (5,000+30,000+64,800) as additional compensation in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. The disbursement of this additional compensation will also be subject to M.A.C.A.No.1905 of 2011 :-10-: satisfaction/deduction of the balance court fee payable for such amount. Since the insurance coverage of the vehicle is not in dispute, the 2[nd] respondent insurer shall deposit the said amount before the Tribunal, within a period of 2 months from the date of receipt of a certified copy of this judgment. Appeal disposed of as above. There will be no order as to costs. All pending interlocutory applications are closed. Sd/- **C.T.RAVIKUMAR JUDGE** Sd/- **ANIL K.NARENDRAN JUDGE** ami/25.7.17 //True copy// P.A.to Judge