Sajina Saseendran v. Joby P. E, Faizal N.K. and United India Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **SATURDAY, THE 27[TH] DAY OF NOVEMBER 2021 / 6TH AGRAHAYANA, 1943 MACA NO. 530 OF 2020** **AGAINST THE AWARD DATED 28.2.2019 IN OP(MV)NO.616/2016 ON THE FILE OF** ## **MOTOR ACCIDENTS CLAIMS TRIBUNAL, VADAKARA** ## **APPELLANT/PETITIONER:** SAJINA SASEENDRAN,AGED 49 YEARS, D/O. BALAN MANNIYUR HOUSE, MANIYURTHAZHA, NARIPATTA P.O. KAKKATTIL, VATAKARA TALUK, KOZHIKODE DISTRICT 673 506. BY ADVS. M.B.SHYNI SRI.DEEPAK RAJ SRI.FRANCIS MATHEW SHRI.SAREEN S. ## **RESPONDENTS/RESPONDENTS:** 1 JOBY.P.E, S/O. ELIAS, PLATHOTTATHIL HOUSE, MAIKABU P.O. THAMARASSERY (VIA) KOZHIKODE DISTRICT 673 573. 2 FAIZAL N.K., S/O. ABDULLA, MALOKUNNATH HOUSE KODIYURA P.O. KALLACHI, VATAKARA, KOZHIKODE DISTRICT 673 506. 3 UNITED INDIA INSURANCE COMPANY LTD, BRANCH OFFICE, 2ND FLOOR, ROYAL CITY COMPLEX, NEAR TOWN HALL, CONVENT ROAD, VATAKARA, KOZHIKODE DISTRICT, 673 101, REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE, 2ND FLOOR, ROYAL CITY COMPLEX, NEAR TOWN HALL,M CONVENT ROAD, VATAKARA, KOZHIKODE DISTRICT 673 101. BY ADV PREETHY R. NAIR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 530 OF 2020 2** ## **JUDGMENT** The appellant is the petitioner in OP(MV) No.616 of 2016 on the file of the Motor Accidents Claims Tribunal, Vatakara. The respondents are the respondents before the Tribunal. 2. The short facts relevant for the determination of this appeal are as follows: On 04.12.2015, while the appellant was walking through the extreme side of the road and when she reached Kaiveli Road Junction, a tipper lorry bearing Registration No. KL-57-D-8925 driven by the 2nd respondent in a rash and negligent manner hit the appellant and thereby suffered serious injuries. Immediately the appellant was taken to Govt. Hospital, Kuttiady and thereafter referred to BMH Kozhikode and treated there as an inpatient for a total of 17 days. The appellant sustained the following injuries: left hemothorax, fracture of 8th, 9th, 10th ribs of the left side, injury to the right middle fingertip, and right index finger injury. The Tipper lorry bearing Reg. No. KL-57D-8925 was owned by the 1st respondent and was insured with the 3rd respondent. The appellant was aged 45 years at the time of the accident and was running a tailoring shop. She was looking after her family from the limited income from the tailoring shop. Due to the accident, the appellant has lost income from her job for several days. **MACA NO. 530 OF 2020 3** Appellant sustained injuries and financial loss because of the accident. After discharge from the hospital, further treatment was continued. The appellant claimed a total compensation of Rs. 5,00,000/- from the respondents. 3. Respondents 1 and 2 who are the owner and driver of the offending vehicle did not contest the matter before the Tribunal and they were set ex parte. The 3rd respondent insurance company filed a written statement, admitting the insurance policy of the offending vehicle at the relevant time of the accident. 4. The appellant produced and marked Exts.A1 to A12 documents as evidence before the Tribunal and certificate of permanent disability was produced and marked as Ext.C1. 5. The Tribunal after analysing the pleadings and materials on record, by the impugned award allowed the claim petition in part, permitting the appellant to realise an amount of Rs. 3,95,400/- with 8% interest per annum and proportionate costs from the date of petition till the date of deposit. The 3rd respondent was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the present appeal is filed. ## **MACA NO. 530 OF 2020 4** 7. The sole question that arises for consideration is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 8. Ext.A1 is the copy of the FIR in Crime No.706/2015 of Kuttiady Police Station and Ext.A3 is the final report in the above said crime charge sheeting the 2nd respondent for the offences punishable under S.279 and 338 IPC. The Tribunal relying on the judgment of the Apex Court in _**Bimal Devi & Two Others vs. Himachal RTC and Others, 2010 (4) KLT Suppl. 73 (SC)**_ and the decision of this Court in _**New India Assurance Company Ltd. vs. Pazhani Ammal and Others, 2011 (3) KLT 648**_ , held that Ext. A1 and A3 will prima facie prove that the accident was due to negligence on the part of the 2nd respondent, who was driving the offending vehicle bearing Reg No. KL-57-D-8925. 9. Admittedly, the 1st respondent is the owner and the 3rd respondent is the insurer of the offending vehicle. Therefore, the 3rd respondent is bound to indemnify the liability of the 1st respondent arising out of the accident. 10. The appellant claimed that she is running a tailoring shop and getting a monthly income of Rs.15000/-. The appellant was aged ## **MACA NO. 530 OF 2020 5** 45 at the time of the accident. The Tribunal fixed the notional income of the appellant at Rs.8,000/- and the appellant claimed that the Tribunal went wrong in fixing Rs.8,000/- as notional income. 11. The reasoning of the Tribunal for fixing the notional income at Rs. 8000/- is that there is absolutely no evidence to prove her income per month at the time of the accident. I am afraid the said finding of the Tribunal cannot be accepted, especially in view of the evidence adduced in the case. The appellant was examined as PW1 and Exhibit A7 identity card and registration book of the Tailors Welfare Fund Board and also Exhibit A11 Rent Agreement were produced and marked to prove that the appellant is running her own tailoring shop and also working as a tailor. I feel the notional income fixed by the Tribunal cannot be accepted in as much as even in the case of Coolie worker the Apex Court in _**Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd [(2011)**_ _**13 SCC236]**_ has fixed the notional income at Rs.4,500/- per month in the year 2004. The Apex Court in _**National Insurance Co. Ltd. v. Pranay Sethi and Others, (2017) 16 SCC 680**_ has also recognized the principle that there would be an incremental enhancement in the case of even self-employed individuals in the **MACA NO. 530 OF 2020 6** unorganized sector. Taking into consideration Exhibit A7 and A11 documents and also the decisions as referred above, I deem it appropriate to fix the notional income of the appellant at Rs. 12000/per month as against Rs. 8,000/- fixed by the Tribunal. 12. Under the head Loss of Earnings, a total amount of Rs.80000/- was claimed and an amount of Rs.48,000/- (8000 x 6) was allowed by the Tribunal on finding that there is a loss of income for six months and by fixing the notional income per month at Rs.8,000/-. As the notional income has been enhanced to Rs. 12,000/-, I fix the amount due to the appellant under the head Loss of Earnings as Rs.72,000/- (12000 x 6) instead of Rs. 48,000/- awarded by the Tribunal. 13. Even though the appellant had claimed Rs.1,00,000/- as compensation for Permanent Disability, the Tribunal granted only Rs. 40,320/- under this head. The appellant was examined by the Medical Board attached to the Government Medical College Hospital, Calicut and the report by the Medical Board is marked as Ext.C1 before the Tribunal. As per C1 report, the appellant is having degloving injury over the palm of the right hand, crush injury of right middle finger and index finger and rib fractures and the Board assessed her permanent **MACA NO. 530 OF 2020 7** disability at 3%. Considering the age of the appellant, which was 45 years at the time of the accident and in view of the judgment in _**Sarla**_ ## _**Verma vs. Delhi Transport Corporation [(2010 (2) KLT 802]**_ the Tribunal has correctly adopted the proper multiplier as 14. Since notional income has been increased by this Court from Rs.8,000/- to 12,000/-, the appellant is entitled to a total amount of Rs.60,480/(Rs. 12,000 x 12 x 14 x 3/100) as compensation for permanent disability instead of Rs.40,320/- (8000 x 12 x 14 x 3/100) fixed by the Tribunal. 14. The appellant claimed compensation of Rs. 2,00,000/- under the head disfigurement. The Tribunal found that she sustained degloving palmer surface right hand and there are ugly marks and valgus deformity in her hand. Even though the disfigurement occurred due to the accident was discussed by the Tribunal, in the award Rs. 50,000/- was granted under the head Loss of Amenities and Enjoyment of Life but no amount was given to the appellant under the head compensation for disfigurement though she claimed Rs. 2,00,000/-. Exhibit A2 Wound Certificate, A4 series Discharge summaries, A5 Discharge card, A6 photographs and A8 treatment plan and doctor’s instructions were marked. Going through these evidences **MACA NO. 530 OF 2020 8** adduced by the appellant, the Tribunal found that suturing and debridement of the wound was done by a Plastic Surgeon and that after discharge on 14.12.2015 she was again admitted on 30.12.2015 with complications of secondary raw areas of her right hand and left elbow and she underwent surgery on 31.12.2015. It has also come out in evidence that on 04.02.2016 she was again admitted to the Department of Plastic Surgery. The Tribunal is not justified in not granting any compensation for disfigurement even though it was specifically claimed and proved before the Tribunal. Taking into consideration of the serious nature of ugly marks and valgus deformity in the hand and also the fact that the appellant is a lady, I feel an amount of Rs. 15,000/- could be granted under the head disfigurement. 15. With respect to compensation awarded under other various heads, I find that the Tribunal has awarded reasonable and just compensation. 16. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the aforesaid decisions, I hold that the appellant is entitled to enhancement of compensation as modified and recalculated above and as given in the table below for easy ## **MACA NO. 530 OF 2020 9** reference. |||Amounts<br>modified<br>and<br>recalculated by<br>this Court(Rs.)|Actual increase as<br>per<br>the<br>recalculation by<br>this Court| |---|---|---|---| ||Amount awarded<br>by the Tribunal<br>(RS)||| |Head of claim|||| ||||| ||||| |Loss of earning|48,000/-|72,000/-|24,000/-| |Transport<br>to<br>hospital|||| ||10,000/-|10,000/-|–| ||||| |Extra<br>nourishment &<br>bystander<br>expenses|||| ||13,600/-|13,600/-|–| ||||| |Medical expenses|1,82,455/-|1,82,455/-|–| |Damage<br>to<br>clothing|||| ||1,000/-|1000/-|--| ||||| |Pain & suffering|50,000/-|50,000/-|–| |Loss of amenities<br>and enjoyment of<br>life|||| ||50,000/-|50,000/-|–| ||||| |Permanent<br>disability|||| ||40,320/-|60,480/-|20,160/-| ||||| |Disfigurement|----|15,000/-|15,000/-| ||3,95,375/-<br>(Rounded<br>to<br>Rs.3,95,400/-)||| |Total||4,54,535/-|59,160/-| ||||| In the result, the appeal is allowed in part, by modifying the order of the Tribunal and enhancing the compensation by a further **MACA NO. 530 OF 2020 10** amount of Rs.59,160/- with interest at the rate of 8% per annum on the compensation from the date of petition till the date of realisation with proportionate costs. The 3rd respondent shall deposit the additional compensation amount awarded in the appeal before the Tribunal with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the compensation to the appellant/petitioner in accordance with the law. As per order dated 27.11.2021 in C.M. Application No. 1/2020 this court held that the appellant would be disentitled for interest for a period of 355 days of delay in filing the appeal. While calculating the interest payable to the appellant on the amount of enhanced compensation, the said period has to be excluded. Sd/- ## **VIJU ABRAHAM JUDGE** pm