Saly alias Sherly v. M. Udayakumr; A. Mahalingam; The Manager, United India Insurance Co. Ltd.

## **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 27TH DAY OF JUNE 2017/6TH ASHADHA, 1939** **MACA.No. 889 of 2007 ( ) -------------------------** **AGAINST THE AWARD IN OP(MV) 1824/2002 of M.A.C.T., PERUMBAVOOR DATED 16-10-2006** **APPELLANT(S)/PETITIONER IN OP MV:** **------------------------------------------** **SALY ALIAS SHERLY,AGED 41 YEARS, W/O.K.V.JOY,KAVUNGAL HOUSE, ROCK VALLEY HOUSING COLONY, KOLAGAPPARA, AMBALAVAYAL VILLAGE, SULTHAN BATHERY TALUK, WAYANAD DISTRICT.** **BY ADVS.SRI.T.M.CHANDRAN** **SRI.JOSHI VARGHESE SRI.JOSEPH ALBIN NEDUNTHALLY SRI.RAJU PAUL C.OLICKAL SRI.S.SUJITH SRI.V.A.SASIDHARAN** **RESPONDENT(S)/RESPONDENTS 1,2,3,RESPECTIVELY IN OP MV:** **------------------------------------------------------** **1. M.UDAYAKUMR,S/O.MUTHUKUMAR, 13 RED CROSS ROAD, PALANI TALUK, TAMILNADU.** **2. A.MAHALINGAM,S/O.ARUMUGHAN,XI/117, SAKTHI NAGAR, MINAKARA ROAD, POLLACHI TALUK, COIMBATORE DISTRICT, TAMILNADU.** **3. THE MANAGER , UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, M.P.S.COMPLEX IIND FLOOR, R.F.ROAD,PALANI, TAMIL NADU.** **R3 BY ADV. SRI.RAJESH THOMAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-06-2017, ALONG WITH MACA NOS.908/2007 AND 1049/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.** **-------------------------------------------------M.A.C.A.Nos.889, 908 and 1049 of 2007 -------------------------------------------------DATED THIS THE 27[th] DAY OF JUNE, 2017** ## **JUDGMENT** ## **ANIL K. NARENDRAN, J.** These appeals arise out of a common award passed by the Motor Accident Claims Tribunal, Perumbavoor dated 16.10.2006 in O.P.(MV)Nos.1824/2002, 1825/2002 and 1827/2002, claim petitions filed under Section 166 of the Motor Vehicles Act, 1988, by the appellants in these appeals, who sustained injuries in a motor accident which occurred on 28.4.2002, while they were travelling in a motor car bearing registration No.KRC-5335, driven by the claimant in O.P.(MV)No.1827/2002. At the place of accident, the said motor car was hit by a lorry bearing registration No.TN-37/Z667 owned and driven by respondents 1 and 2 and insured with the 3[rd] respondent. In the said accident, the appellants sustained serious injuries. Alleging that the accident occurred due to the rash and negligent driving of the lorry by the 2[nd] respondent driver, claim petitions were filed before the Tribunal claiming compensation under different heads. 2. Before the Tribunal, the claim petitions were tried jointly. M.A.C.A.Nos.889, 908 & 1049/2007 -2- On the side of the claimants Exts.A1 to A31 were marked and PWs 1 to 8 were examined. The respondents have not chosen to adduce any oral or documentary evidence. 3. After considering the materials and evidence on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the lorry by the 2[nd] respondent driver. Since the said lorry was covered by a valid insurance policy, the 3[rd] respondent insurer was held liable to indemnify the 1[st] respondent owner. 4. Under different heads, the Tribunal awarded a total compensation of `2,20,400/- in OP(MV)No.1824/2002, `1,19,000/- in OP(MV) No.1825/2002 and `5,00,000/- in OP(MV) No.1827/2002 together with interest at the rate of 7% per annum from the date of application till realisation. The 3[rd] respondent insurer was directed to deposit the amount before the Tribunal. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellants/claimants M.A.C.A.Nos.889, 908 & 1049/2007 -3- are before this Court in these appeals. ## - M.A.C.A.No.1049/2007 arising out of OP(MV)No.1827/2002: 6. At the time of accident, the claimant was aged 37 years. He was working as the Manager of Wayanad District Cooperative Bank. As evident from Ext.A1 salary certificate, he was earning a monthly income of `18,777/-. The injuries sustained by the appellant as borne out from Ext.A23 discharge summary are Fracture lower end left radius, fracture right humerus, Fracture right acetabulum with central dislocation hip, partial sciatic (N) injury right radial N palsy right. The medical records would indicate that he had undergone inpatient treatment for a total period of 76 days, i.e., from 28.4.2002 to 11.6.2002 and thereafter from 3.7.2002 to 6.8.2002. In Ext.A4 disability certificate, a permanent disability of 34% has been assessed. The said disability certificate was proved through PW2 Doctor, who had issued the same. 7. The compensation awarded by the Tribunal under different heads reads thus: M.A.C.A.Nos.889, 908 & 1049/2007 -4- Rupees |Treatment expenses<br>-<br>Transport expenses<br>-<br>Extra nourishment<br>-<br>Attendance charges<br>-<br>Damage to clothings<br>-<br>Pain and sufferings<br>-<br>Loss of amenities<br>-<br>Future treatment expenses<br>-<br>Disability<br>-<br>Loss of love<br>-<br>For disfiguration<br>-<br>Total<br>-<br> `|1,42,000/-<br>10,000/-<br>5,000/-<br>10,000/-<br>250/-<br>40,000/-<br>30,000/-<br>25,000/<br>81,600/-<br>50,000/-<br>5,000/-<br>------------<br>4,99,250/-<br> i.e. rounded<br>5,00,000/-| |---|---| 8. The fact that the appellant had undergone inpatient treatment for a period of 76 days is not in dispute. The accident is of the year 2002. In such circumstances, the compensation for extra nourishment has to be reworked as `7,600/- (100x76). The Tribunal has already awarded a sum of `5,000/- under this head. In the result, the appellant will be entitled for an additional compensation of ` **2,600/-** . 9. Towards attendant charges, the Tribunal has already awarded a sum of `10,000/-. Considering the hospitalisation for a period of 76 days, the compensation awarded by the Tribunal M.A.C.A.Nos.889, 908 & 1049/2007 -5- under this head represents just and reasonable compensation which warrants no enhancement in this appeal. 10. Towards damage to clothing, the Tribunal awarded only a sum of `250/-. Considering the fact that the accident is of the year 2002, we deem it appropriate to re-fix the compensation under this head as `1,000/-, resulting an additional compensation of ` **750/-** . 11. Under the heads pain and suffering, future treatment expenses and loss of love and affection, the appellant is adequately compensated by awarding `40,000/-, `25,000/- and `50,000/- respectively, which warrants no enhancement in this appeal. 12. Towards disfiguration, the Tribunal awarded a sum of `5,000/-. Considering the nature of injuries sustained, the said amount represents just and reasonable compensation under this head. However, towards loss of amenities, the Tribunal has awarded only a sum of `30,000/-. Considering the fact that, as certified in Ext.A4 disability certificate, the appellant had M.A.C.A.Nos.889, 908 & 1049/2007 -6- sustained a permanent disability of 34% due to the injuries sustained in the accident, we deem it appropriate to re-fix the compensation under this head as `40,000/- resulting an additional compensation of ` **10,000/-** . 13. Towards disability compensation, the Tribunal awarded a sum of `81,600/-. The fact that at the time of accident, the appellant was earning a monthly income of `18,777/- is discernible from Ext.A1. However, since he was working as the Manager of the District Co-operative Bank, the disability that had arisen from the injuries sustained in the accident has no bearing in his earning capacity till superannuation, i.e., till attaining the age of 58 years. In such circumstances, the compensation under the head disability has to be re-worked taking the multiplier as '9' applicable to the age group 50 to 60 years. Considering the monthly salary earned by the appellant at the time of accident, as discernible from Ext.A1, the notional monthly income after retirement for the purpose of calculating disability compensation can be taken as `5,000/-. Applying the multiplier of '9' and the M.A.C.A.Nos.889, 908 & 1049/2007 -7- percentage of disability as 34%, the compensation payable under the head disability can be reckoned as `1,83,600/(5,000x12x9x34/100). The Tribunal has already awarded a sum of `81,600/- under this head. Therefore, the appellant will be entitled for an additional compensation of ` **1,02,000/-** under this head. 14. In the result, the appellant will be entitled for an additional compensation of ` **1,15,350/-** (2,600+750+10,000+ 1,02,000) in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. ## M.A.C.A.No.889/2007 arising out of O.P.(MV)No.1824/2002 15. In this case, at the time of accident, the appellant, a housewife, was aged 37 years. The medical records would indicate that she had undergone inpatient treatment for a period of 51 days. The injuries noted in Ext.A29 medical certificate are Multiple fracture – mandible, right body, left angle, lost -2-/-- one tooth. Ext.A26 discharge certificate would show that the appellant had fracture of mandible C4 and C5 subluxation and M.A.C.A.Nos.889, 908 & 1049/2007 -8- cervical fixation of C4, C5 and C6 vertebral bodies. The treatment, the appellant had undergone, is evident from Ext.A26 discharge certificate, which include open reduction and internal fixation, etc. 16. In Ext.A6 disability certificate dated 22.8.2005 issued by the Medical Board at the District Hospital, Mananthavady, the percentage of permanent disability has been assessed as 25% whole body. The Doctor, who was a member of the Medical Board, who examined the appellant for assessing permanent disability, was examined as PW2. In paragraph 10 of the award (at page 16) the Tribunal observed that, though PW2 has sated that he has not treated the appellant earlier and had no direct knowledge about his body condition as stated in Ext.A6, nothing was brought out to disbelieve the evidence of PW2. However, since the doctor has not stated as to whether the disability as certified is whole body or disability of a particular limb, the Tribunal took the percentage of disability as 15%, which warrants no interference in this appeal. M.A.C.A.Nos.889, 908 & 1049/2007 -9- 17. The compensation awarded by the Tribunal under ## different heads reads thus: |Loss of income<br>-<br>Damage to clothing<br>-<br>Transport expenses<br>-<br>Extra nourishment<br>-<br>Attendance charges<br>-<br>Medical expenses<br>-<br>Pain and sufferings<br>-<br>Loss of amenities<br>-<br>Future treatment<br>-<br>Disability<br>-<br>Disfiguration<br>-<br>Loss of tooth<br>-<br>Total<br>-|Rupees<br>8,000/-<br>250/-<br>3,000/-<br>3,000/-<br>5,000/-<br>90,510/-<br>20,000/-<br>15,000/-<br>10,000/-<br>57,600/-<br>5,000/-<br>2,000/-<br>----------<br>2,20,360/- = 2,20,400/-<br>=======| |---|---| 18. The Tribunal awarded a sum of `57,600/- towards disability compensation reckoning the notional monthly income as `2,000/-, the multiplier as '16' and the percentage of disability as 15%. In view of the judgment of the Apex Court in **Sarla Verma v. Delhi Transport Corporation (2010(2) KLT 802)** , the proper multiplier applicable to the appellant/claimant, who was aged 37 years, is '15'. The Tribunal reckoned the notional monthly income as `2,000/-, which is on a lower side. M.A.C.A.Nos.889, 908 & 1049/2007 -10- Considering the fact that the accident is of the year 2002, in view of the judgment of the Apex Court in **Jitendra Khimshankar Trivedi v. Kasam David Kumbhar ((2015) 4 SCC 237),** we deem it appropriate to re-fix the notional monthly income of the appellant/claimant as `3,000/-. In the result, the compensation payable under the head disability is referred as `81,000/(3000x12x15x15/100), resulting an additional compensation of ` **23,400/-** under this head. 19. Towards loss of income the Tribunal awarded a sum of `8,000/- at the rate of `2,000/- for a period of four months. Since we have already re-fixed the notional monthly income of the appellant/claimant as `3,000/-, the compensation payable under this head is re-worked as `12,000/- (3,000x4), resulting an additional compensation of ` **5,000/-** . 20. Towards damage to clothings the Tribunal awarded a sum of `250/-. Considering the fact that the accident is of the year 2002 we deem it appropriate to re-fix the compensation under this head as `500/-, resulting an additional compensation M.A.C.A.Nos.889, 908 & 1049/2007 -11- of **₹250/-** . 21. Towards extra nourishment and attendance charges the Tribunal awarded `3,000/- and `5,000/- respectively. Considering the fact that the appellant/claimant had undergone inpatient treatment for a period of 51 days, the compensation under these heads are re-fixed as `5,100/- (100x51), resulting an additional compensation of ` **2,100/-** and `7,650/- (150x51), resulting an additional compensation of ` **2,650/** - respectively. 22. Towards pain and sufferings the Tribunal awarded a sum of 20,000/-. Considering the nature of injuries sustained₹ and the treatment the appellant/claimant had undergone, as borne out from medical records, we deem it appropriate to re-fix the compensation under this head as `20,000/-, resulting an additional compensation of ` **5,000/-** . 23. Towards loss of amenities the Tribunal awarded a sum of `15,000/-. Considering the nature of injuries sustained and the permanent disability that had arisen therefrom, as certified in the disability certificate, we deem it appropriate to re-fix the M.A.C.A.Nos.889, 908 & 1049/2007 -12- compensation under this head as `25,000/-, resulting an additional compensation of ` **10,000/-** . 24. In the result, the appellant/claimant will be entitled for an additional compensation of ` **48,400/-** (23,400+5,000+250+ 2,100+2,650+5,000+10,000) in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. ## M.A.C.A.No.908/2007 arising out of O.P.(M.V.No.1825/2002 25. In this case, at the time of accident the appellant/claimant was a minor girl aged 11 years. The nature of injuries sustained by her, as borne out from Ext.A24 discharge summary, read thus:- “Closed supercondylar fracture right femur, closed fracture M/3[rd] left femur, Greenstick fracture left radius.” The medical records would reveal that the appellant/claimant had undergone inpatient treatment for a period of 51 days. She has also lost four teeth, as per the medical certificate. 26. The compensation awarded by the Tribunal under different heads reads thus:- M.A.C.A.Nos.889, 908 & 1049/2007 -13- ||**_Rupees_**| |---|---| |Damage to clothings|250/-| |Transport expenses|3,000/-| |Extra nourishment|2,000/-| |Attendance charges|5,000/-| |Medical Expenses|59,650/-| |Pain and sufferings|10,000/-| |Loss of maritalprospects|10,000/-| |Fixation of teeth|24,000/-| |Facial disfiguration|5,000/-| |Total|1,18,900<br>is rounded to<br>1,19,000/-| 27. The Tribunal awarded a sum of `250/- towards damage to clothings. Considering the fact that the accident is of the year 2002 we deem it appropriate to re-fix the compensation under this head as `500/-, resulting an additional compensation of ` **250/-** . 28. Towards extra nourishment and attendance charges the Tribunal awarded `2,000/- and `5,000/- respectively. Considering the fact that the appellant had undergone inpatient treatment for a period of 51 days, the compensation under these heads are re-fixed as `5,100/- (100x51), resulting an M.A.C.A.Nos.889, 908 & 1049/2007 -14- additional compensation of ` **3,100/-** and `7,650/- (150x51), resulting an additional compensation of ` **2,650/** - respectively. 29. Towards pain and sufferings the Tribunal awarded a sum of `10,000/-. Considering the nature of injuries sustained and the treatment the appellant/claimant had undergone, we deem it appropriate to re-fix the compensation under this head as `20,000/-, resulting an additional compensation of ` **10,000/-** . 30. Towards loss of marital prospects the Tribunal awarded a sum of `10,000/-. Considering the fact that the injuries sustained in the accident has resulted in scars and other disfigurations including loss of teeth, we deem it appropriate to re-fix the compensation under this head as `35,000/-, resulting an additional compensation at ` **25,000/-** . 31. The compensation awarded under other heads represents just and reasonable compensation. 32. Hence, the appellant/claimant will be entitled for an additional compensation of ` **41,000/-** (250+3,100+2,650+ 10,000+25,000) in this appeal, which will carry interest at the M.A.C.A.Nos.889, 908 & 1049/2007 -15- rate of 8% per annum from the date of petition till realisation. 33. In the result, the respective appellants in M.A.C.A.Nos.1049/2007, 889/2007 and 908/2007 will be entitled for additional compensation of ` **1,15,350/-,** ` **48,400/-** and ` **41,000/-** respectively, which will carry interest at the rate of 8% per annum from the date of petition till realisation. Since the insurance coverage of the offending vehicle is not in dispute the third respondent insurer shall deposit the additional compensation granted in these appeals before the Tribunal, within a period of two months from the date of receipt of a copy of the certified copy of this judgment. These appeals are disposed of as above. No order as to costs. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** dsn/tks True copy P.S. to Judge