Sainaba v. Praveen and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 16[TH] DAY OF FEBRUARY 2023 / 27TH MAGHA, 1944 ``` ``` MACA NO. 2169 OF 2012 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 784/2004 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL,PATHANAMTHITTA / I ADDL. M.A.C.T. DATED 20.06.2011 ``` ## **`APPELLANT/PETITIONER:`** ``` SAINABA AGED 56 YEARS W/O.SHAMSUDEEN, SHIBU MANZIL, ARUKALICKAL WEST MURI, EZHAMKULAM VILLAGE. BY ADVS.SRI.ARUN.B.VARGHESE SRI.P.HARI SMT.R.SEEMA ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1PRAVEEN S/O.PURUSHOTHAMAN, ETTIVILAYIL VEEDU, PADAM KALANJOOR VILLAGE- 691305. 2SHINOJ.B SHINOJ NIVAS, MUSSAVARIKUNNU, PUNALUR-691305. 3BRANCH MANAGER ORIENTAL INSURANCE COMPANY LIMITED, PUNALUR-691305. 4PRADEEP S/O.PURUSHOTHAMAN, ETTIVILAYIL VEEDU, PADAM, KALANJOOR VILLAGE-691305. BY ADVS.SRI.P.V.JYOTHI PRASAD SRI.M.T.SURESHKUMAR SRI.R.RENJITH SMT.Deepa George ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 16.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.2169 of 2012 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 16[th ] day of February, 2023** The appeal on hand is filed challenging an award passed by Additional District Judge and Additional Motor Accidents Claims Tribunal, Pathanamthitta (for short ‘the Tribunal’) on 20.06.2011 in O.P(M.V) No.784/2004. The appellant is the petitioner before the Tribunal. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 4 in accordance with their status before the Tribunal. 3. The Tribunal has awarded a sum of Rs.69,350/- in favour of the petitioner and directed the 3[rd] respondent insurer to deposit the said amount with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation alongwith Rs.3,150/- as proportionate cost. Aggrieved by the aforesaid award, the petitioner had approached this Court in the appeal on hand. ``` M.A.C.A.No.2169 of 2012 ``` ``` 3 ``` 4. It is averred in the Original Petition filed as above that on 18.04.2004, while the petitioner was standing by the side of Adoor-Pathanapuram road, a Scooter bearing Registration No.KL-2M-60 ridden by its rider in a rash and negligent manner knocked her down. She sustained injuries and was treated at Government Hospital, Adoor as inpatient from 18.04.2004 till 27.04.2004. She sustained fracture of lower end of right radius and greater tuberosity of left humerus. She was treated by medication. It was alleged that the motor accident was occurred due to the rash and negligent riding of the Scooter by its rider who was arrayed as the 1[st] respondent in the Original Petition. The insured and the insurer were also arrayed as respondents 2 and 3. Later on based on the contention of the 2[nd] respondent that the vehicle was transferred to another man, the latter was impleaded as the additional 4[th] respondent being the owner of the scooter in the Original Petition. A sum of Rs.2,00,000/was also claimed as compensation. 5. 1[st] respondent filed written statement contending that the Original Petition is not maintainable either in law or ``` M.A.C.A.No.2169 of 2012 ``` ``` 4 ``` on facts, that he had ridden the Scooter with due care and caution and the motor accident was occurred due to the carelessness of the petitioner. 6. The 2[nd] respondent has also filed written statement contending that he was not the owner of the vehicle as on date of the motor accident, since it was sold by him to another man on 14.04.2004. 7. 3[rd] respondent filed written statement admitting insurance coverage for the scooter as on date of accident. It was contended that the accident was occurred due to negligence of the petitioner herself. The amount claimed as compensation is also disputed for being exorbitant. 8. Additional 4[th] respondent has also filed written statement contending that he has no liability to compensate the petitioner, since the motor accident did not occur due to the rash and negligent riding of the Scooter by the 1[st] respondent. 9. Petitioner marked Exts.A1 to A10 in evidence. On appreciation of the above evidence the Tribunal found that the motor accident was occurred due to the rash and negligent ``` M.A.C.A.No.2169 of 2012 ``` ``` 5 ``` riding of the Scooter by the 1[st] respondent. The Tribunal also found that on account of the injuries sustained by the petitioner in the motor accident, she is entitled to get compensation from the respondents. Rs.69,350/- was arrived at as the compensation payable and the 3[rd] respondent was directed to deposit the same with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The 3[rd] respondent was also permitted by the Tribunal to get the compensation recovered from the additional 4[th] respondent after depositing the same in favour of the petitioner for the reason that the 1[st] respondent was established as ridden the Scooter without authorisation at the relevant time. 10. Sri.Arun B Varghese, the learned counsel for the petitioner has contended that though the petitioner claimed to be a Tailor having Rs.3,000/- as the monthly income, the Tribunal took only Rs.2,500/-. According to the learned counsel, the injured being a self employed lady, the Tribunal ought to have fixed the monthly income in tune with the fixation in the case of a Coolie worker by the Apex Court in ``` M.A.C.A.No.2169 of 2012 ``` ``` 6 ``` ## **Ramachandrappa v Manager, Royal Sundaram Alliance** **Insurance Company Limited** [ (2011) 13 SCC 236]. It is further contended by the learned counsel that though the petitioner had sustained fracture of lower end of right radius and grater tuberosity of left humerus, the Tribunal failed to award just and reasonable compensation under various heads. The learned counsel has also pointed out that since the monthly income was notionally fixed as Rs.2,500/- the compensation arrived at for loss of earning and permanent disability fall on the lower side. Accordingly enhancement of compensation is sought. 11. Learned counsel for the 3[rd] respondent contended that the Tribunal has directed the 3[rd] respondent to deposit the compensation and to get recovery of it from the additional 4[th] respondent, who was the owner of the vehicle at the relevant time. Challenge is not found raised against the said direction of the Tribunal by the additional 4[th] respondent and therefore, it is only to be maintained. 12. It is noticed that the motor accident was occurred in the year 2004. The petitioner claimed to be a Tailor by ``` M.A.C.A.No.2169 of 2012 ``` ``` 7 ``` avocation having Rs.3,000/- as monthly income. She being self employed is unable to prove her monthly income as in the case of a Coolie worker. Therefore as rightly pointed out by the learned counsel, Rs.4,500/- is adopted as the monthly income, in tune with the fixation by the Apex Court in the case of a Coolie worker in **Ramachandrappa** supra. The petitioner was examined by the Medical board and a certificate was issued assessing his permanent disability as 8%, which is marked in evidence as Ext.A7. The Tribunal took the entire disability assessed by the Medical Board for calculation of compensation. When compensation for disability is reassessed with the above modified monthly income, Rs.56,160/- is arrived at. Rs.31,200/-, the sum stands awarded by the Tribunal when deducted therefrom, the petitioner will get Rs.24,900/- as additional compensation under that head. 13. It is noticed that loss of earning was considered by the Tribunal only for 3 months. On account of the serious fractures sustained by the petitioner, she may not be able to attend the job at least for 5 months and Rs.22,500/- is arrived ``` M.A.C.A.No.2169 of 2012 ``` ``` 8 ``` at (Rs.4,500/- x 5). Rs.7,500/- stands awarded by the Tribunal when adjusted against, the petitioner will get Rs.15,000/- as additional compensation under that head. 14. The petitioner was residing at Ezhamkulam at the relevant time of the motor accident and had availed treatment from Government Hospital, Adoor. Tribunal failed advert to the above factum and awarded only Rs.2,000/- as compensation towards transportation expenses. It being inadequate, this Court awards Rs.1,000/- more. Under the head damages to clothing Rs.500/- more is awarded by this Court. As compensation towards bystander expenses, this Court awards Rs.3,000/-. Rs.1,000/- stands awarded by the Tribunal when adjusted against, the petitioner will get Rs.2,000/- as additional compensation under that head. As compensation towards pain and suffering and loss of amenities and enjoyments in life, Rs.15,000/- and Rs.10,000/- stand awarded by the Tribunal being inadequate, this Court awards Rs.15,000/- and Rs.5,000/- more. Therefore, the petitioner will get Rs.15,000/- and Rs.5,000/respectively under the above heads. ``` M.A.C.A.No.2169 of 2012 ``` ``` 9 ``` 15. Compensation for permanent disability when reassessed with on the basis of the modified monthly income of Rs.4,500/- and the multiplier and the percentage of permanent disability maintained, a sum of Rs.56,160/- is arrived at. Rs.31,200/- stands awarded by the Tribunal when adjusted against the petitioner will get Rs.24,960/- as additional compensation. 16. In the above manner of reassessment, the petitioner will get Rs.63,460/- (Rupees Sixty three thousand four hundred and sixty only) as additional compensation. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation excluding 370 days, being the period of delay occurred in filing the appeal on hand. The 3[rd] respondent was directed by the Tribunal to pay the compensation in favour of the petitioner and to get it recovered from the additional 4[th] respondent. In the absence of any challenge raised against that finding, it is maintained. The 3[rd] respondent shall pay the additional compensation now arrived at with interest fixed on it and the original ``` M.A.C.A.No.2169 of 2012 ``` ``` 10 ``` compensation with interest stands awarded by the Tribunal, (if not already paid), within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the directions contained in Circular No.03/2019 dated 06.09.2019 and to get the same recovered from the additional 4[th] respondent. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH** **JUDGE** NAB