Saraswathy Amma v. Prakash & Syam Kumar & The Divisional Manager, National Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 13[TH] DAY OF FEBRUARY 2023 / 24TH MAGHA, 1944 MACA NO. 2354 OF 2014 ``` ``` AGAINST THE AWARD DATED 10.12.2013 IN O.P(M.V) NO.1817/2011 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM ``` ## **`APPELLANT/PETITIONER:`** ``` SARASWATHY AMMA, AGED 70 YEARS D/O.KUTTY AMMA, KRISHNA PRIYA, MYTHRI NAGAR - 4, PATTATHANAM, VADAKKEVILA, KOLLAM. ``` ``` BY ADVS.SRI.V.JAYAPRADEEP SRI.ABE RAJAN ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 PRAKASH, S/O.SADASIVAN, 524, THYVELIL THEKKATHIL, MOOPANAR VEEDU, SREE VILASAM NAGAR-77, VADAKKEVILA, VADAKKEVILA P.O., KOLLAM - 691 101.` - `2 SYAM KUMAR, S/O. PRAKASH, SREEVILASAM NAGAR-71, VADAKKEVILA, VADAKKEVILA P.O., KOLLAM - 691 01.` - `3 THE DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD, HOSPITAL ROAD, KOLLAM - 691 110.` ``` R3 BY DEEPA GEORGE, SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.2354 of 2014 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 13[th ] day of February, 2023** This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Kollam (for short ‘the Tribunal’) on 10.12.2013 in O.P(M.V) No.1817/2011. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition. 3. The appellant is the petitioner before the Tribunal. She sustained injuries in a motor accident occurred on 23.04.2011 at about 8 a.m. While she was standing at Amman Nada on the southern side of Kollam-Kannanalloor road, a Motorcycle bearing Registration No.KL-2AG-2558 knocked her down. Claiming a sum of ₹1,50,000/- as compensation, the Original Petition was filed. The owner, rider and insurer of the Motorcycle were arrayed as respondents 1 to 3 in the Original Petition. The registered ``` M.A.C.A.No.2354 of 2014 ``` ``` 3 ``` owner and driver of the offending vehicle did not turn up to contest the Original Petition and therefore, declared ex parte. 4. In the written statement filed, the 3[rd] respondent has contended that the petitioner has 50% contribution to the cause of the motor accident. Compensation claimed was also disputed. The claim of the petitioner on her age, occupation and monthly income were also disputed. The petitioner herself was alleged as responsible for the accident. Admittedly the vehicle was insured with the 3[rd] respondent. 5. Two witnesses were examined on the petitioner’s side as PW1 and PW2. Exts.A1 to A8 were also marked. On appreciation of the entire evidence, the Tribunal found the petitioner entitled to get compensation and ₹40,800/- was arrived at as the compensation payable. Interest was also fixed for the compensation arrived at, at the rate of 9% per annum from the date of filing of the Original Petition till the date of realisation. Proportionate cost was also allowed. 6. According to the learned counsel for the petitioner, the petitioner was a housewife aged 67 years. According to ``` M.A.C.A.No.2354 of 2014 ``` ``` 4 ``` him the services rendered by a housewife cannot be assessed in terms of money and therefore ₹2,000/- stands fixed as the monthly income by the Tribunal is unjust and unreasonable. Arun Kumar Agrawal and Another v. National Insurance Company and Others [2010 KHC 4490 (SC)] was cited by the learned counsel in reliance, wherein the Apex Court has held that ₹5,000/- is a reasonable sum to be fixed as the monthly income of a housewife. Accordingly the learned counsel canvassed for a modification of the monthly income from ₹2,000/- to ₹5,000/-, on the basis of Arun Kumar supra. 7. It is contended by the learned counsel that the awarded sum under other heads also fall on the lower side and canvassed for a re-fixation. 8. The petitioner was a housewife aged 67 years at the relevant time of accident. It is noticed from the evidence on record that though the accident was allegedly occurred on 23.04.2011, an accident register cum wound certificate was not prepared on that day. The wound certificate produced and marked in evidence as Ext.A6 is a document issued in the ``` M.A.C.A.No.2354 of 2014 ``` ``` 5 ``` form of a certificate with contents written in ink. It was found prepared on 23.04.2011. Another wound certificate was also marked in evidence. It is found as prepared on 30.04.2011 and issued from Nair’s Hospital, Kollam. An X-ray was reported therein as taken, but result of the X-ray is not stated. Ext.A8 is another wound certificate issued on 03.06.2011 by an Orthopedic Surgeon associated with Dr.Nair’s Hospital, Kollam. The said certificate alone describes that the petitioner had undergone a procedure for Prosthetic replacement. A medical document relating to the treatment of the petitioner at Dr.Nair’s Hospital is not forthcoming in evidence. The Doctor who had issued Ext.A8 was examined as PW2. He did not assess any disability for the petitioner, but stated during cross examination that disability may be resulted to the petitioner on account of the injuries sustained by her in the motor accident and Prosthetic replacement was done as part of treatment. Disability of the petitioner was not assessed and certified by the Doctor, but the Tribunal has taken 10%. The basis for consideration of 10% as the ``` M.A.C.A.No.2354 of 2014 ``` ``` 6 ``` disability of the petitioner is not found stated by the Tribunal in the impugned award. The Tribunal did not advert to the delay occurred in registration of the crime with reference to the motor accident, in preparing the wound certificate and the discharge card or other medical documents made available in evidence in the case on hand. Ext.A8 is the only document available to the Tribunal for a consideration that a procedure for Prosthetic treatment was undergone by the petitioner. It is only a treatment certificate issued on 03.06.2011. 9. However, the Tribunal has arrived at a sum of ₹40,800/- as the compensation payable to the petitioner and directed the 3[rd] respondent to deposit it with interest at the rate of 9% per annum from the date of filing of the Original Petition till the date of realisation. The Tribunal has also made respondents 1 to 3 jointly and severally liable to pay the compensation. 10. Challenge was not raised against the impugned award by any of the respondents. True that contentions challenging the materials marked in evidence were raised in ``` M.A.C.A.No.2354 of 2014 ``` ``` 7 ``` the written statement but the version of the petitioner regarding the motor accident faced by her were not contradicted by the respondents. Therefore, the impugned award and the findings rendered therein are only liable to be maintained. The venture of this Court is to see whether modification of compensation in interference is warranted or not. 11. Monthly income is re-fixed as ₹5,000/- as per the dictum in Arun Kumar supra relied on by the learned counsel for the petitioner. Four months period taken by the Tribunal for arriving at compensation for loss of earning is maintained. When compensation is assessed on the basis of ₹5,000/-, the modified monthly income, the petitioner will get ₹20,000/(₹5,000/- x 4) as compensation. ₹8,000/- stands awarded by the Tribunal when adjusted in the sum now arrived at, the petitioner will get ₹12,000/- as additional compensation. 12. As compensation towards transportation expenses, ₹1,000/- was awarded by the Tribunal and it being inadequate in the context, this Court is inclined to award ``` M.A.C.A.No.2354 of 2014 ``` ``` 8 ``` ₹1,200/- more. It is noticed that as compensation towards loss of amenities and enjoyments in life the Tribunal failed to award compensation. ₹12,000/- stands awarded as compensation towards loss of earning power being without any evidence let in by the petitioner to establish that she has become unable to do any sort of work on account of the injuries sustained in the motor accident, the Tribunal is found unjustified. Therefore, ₹12,000/- stands awarded is converted to compensation payable towards loss of amenities and enjoyments in life. 13. In the above re-assessment, the petitioner will get ₹13,200/- (₹12,000/-+ ₹1,200/-) (Rupees thirteen thousand two hundred only) as additional compensation. The 3[rd] respondent being the insurer shall deposit the additional compensation arrived at with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation, within two months from the date on which a certified copy of this judgment is received. ``` M.A.C.A.No.2354 of 2014 ``` ``` 9 ``` 14. Appeal was filed late by 77 days and this Court vide order passed on 04.10.2021 in C.M.Application No.01/2014 has exonerated the 3[rd] respondent from paying interest for the period. Therefore the 3[rd] respondent is exonerated from paying interest for 77 days. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** NAB