Sarika Baburaj v. P. Aravindhakshan, Alex Thomas & United India Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **MONDAY, THE 1[ST] DAY OF AUGUST 2022 / 10TH SRAVANA, 1944** **MACA NO. 1847 OF 2016** **AGAINST THE AWARD DATED 18.02.2015 IN OPMV 480/2009 ON THE FILES** **OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY** ## **APPELLANT/PETITIONER:** **SARIKA BABURAJ, AGED 27 YEARS D/O. BABURAJ, VARAYIL HOUSE, P.O.CHERUKUNNU, KANNUR.** ## **BY ADV SRI.K.RAJESH SUKUMARAN** ## **RESPONDENT/RESPONDENTS:** - **1 P. ARAVINDHAKSHAN, AGED 38 YEARS S/O. KUNHAMBU NAIR, PAROTH HOUSE, PANNIYOTTUMOOLA, P.O.EACHUR, KANNUR-670.(OWNER OF THE TIPPER LORRY BEARING NO.KL-13/L 3182).** - **2 ALEX THOMAS, AGED 29 YEARS S/O. THOMAS, KADUKUNNEL HOUSE,P.O.CHEMBERI, KANNUR-670. (DRIVER OF THE TIPPER LORRY BEARING NO.KL-13/L 3182).** - **3 UNITED INDIA INSURANCE COMPANY LIMITED KANNUR-670 001.(INSURER OF THE TIPPER LORRY BEARING NO.KL-13/L 3182)POLICY NO.100 800 31/08/01/00000549 (VALIDITY FROM 30.04.2008 TO 29.04.2009).** **BY ADVS. SMT.D.N.NISHANI SRI.LAL GEORGE,SC SMT.K.B.REKHA SRI.M.SURESH KUMAR SRI.P.U.SHAILAJAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 1847 OF 2016 ..2..** ## **JUDGMENT** The petitioner in O.P.(MV)No.480/2009, on the files of the Motor Accidents Claims Tribunal, Thalassery has preferred this appeal aggrieved by the amount of compensation awarded by the Tribunal. The parties are referred to as per their status in the claim petition. 2. According to the petitioner, on 25.04.2009, while she was travelling as a pillion rider on a motor cycle bearing Registration No.KL-13/L-7561, a tipper lorry bearing Registration No.KL-13/L-3182 owned by the 1[st] respondent and driven by the 2[nd] respondent in a rash and negligent manner hit the motor cycle and as a result, the petitioner sustained serious injuries. The petitioner claimed an amount of Rs.10,00,000/- as compensation for the injuries sustained in the accident. 3. Before the Tribunal, respondents 1 and 2 remained _ex parte_ . The 3[rd] respondent/insurance **MACA NO. 1847 OF 2016 ..3..** company filed a written statement admitting that the offending vehicle was having a valid insurance policy at the time of the accident. However, it was contended that the 2[nd] respondent was not having a valid driving licence and there is violation of conditions of policy. It was also contended that the amount claimed is excessive. 4. Before the Tribunal, Exts.A1 to A10 series and Ext.X1 were marked on the side of the petitioner and Ext.B1 policy, on the side of the 3[rd] respondent. No oral evidence was adduced by either side. 5. The Tribunal found that the accident happened due to the negligence on the part of the 2[nd] respondent and awarded an amount of Rs.5,22,400/- as total compensation with 8% interest p.a. from the date of petition till realisation with proportionate costs. It was also found that the 2[nd] respondent did not have a valid driving licence at the time of accident and directed the **MACA NO. 1847 OF 2016 ..4..** insurer to effect the payment, reserving their right to recover the same from the 1[st] respondent/owner. The split up of the compensation awarded by the Tribunal under various heads is as follows: |Sl.No|Head of claim|Amount claimed<br>(Rs.)|Amount awarded<br>(Rs.)| |---|---|---|---| |1.|Loss of income||20,000| |2.|Pain and sufering||40,000| |3.|Loss of amenities||20,000| |4.|Extra nourishment||2,000| |5.|Damage to clothing||500| |6.|Transporation||5,000| |7.|Bystander's expense||3,600| |8.|Medical expense||1,76,300| |9.|Disability<br>compensation||2,55,000| ||Total|10,00,000|5,22,400| **MACA NO. 1847 OF 2016 ..5..** 6. According to the petitioner, she was working as a computer operator and was earning Rs.6,000/- per month. As the petitioner failed to prove her income by satisfactory evidence, the Tribunal fixed her notional income as Rs.5,000/- per month. Going by the dictum laid down in **Ramachandrappa** _**v**_ **. Manager, Royal Sundaram Alliance Insurance Company Limited** [2011 (13) SCC 236 : AIR 2011 SC 2951], the petitioner is entitled for an amount of Rs.7,000/- in the year 2009 as notional income. Therefore, I re-fix the monthly income of the petitioner as Rs.6,000/- for the purpose of computation of compensation as claimed by her in the claim petition. The petitioner was aged 28 years at the time of the accident and therefore, the multiplier to be adopted is '17'. 7. As per Ext.A2 wound certificate, the petitioner sustained the following injuries. **MACA NO. 1847 OF 2016 ..6..** 1. Crush and avulsion injury left foot with extensive soft tissue loss, heal pad avulsion. 2. Fracture of medical malleolous. 3. Fracture calcaneum. 8. The Medical Board, by Ext.X1 disability certificate, assessed the functional disability of the petitioner as 25%. She was treated as inpatient for a period of 44 days from 25.04.2009 to 07.06.2009,. 9. Towards loss of income, the Tribunal has awarded an amount of Rs.20,000/-, taking the income of the petitioner as Rs.5,000/- and the period of disablement as 4 months. Taking note of the nature of injuries sustained by the petitioner, I take the period of loss of income as 8 months. Therefore, the petitioner is entitled for an amount of Rs.48,000/- (6,000x8) towards loss of income. Since the petitioner has already been awarded an amount of Rs.20,000/-, she is entitled for an enhanced amount of **Rs.28,000/-** (48,000-20,000) under the said head. **MACA NO. 1847 OF 2016 ..7..** 10. The Tribunal has awarded an amount of Rs.40,000/- towards compensation for pain and suffering. Taking note of the injuries sustained by the petitioner, I re-fix the amount of compensation under the said head as Rs.50,000/- and she is entitled for an enhanced amount of **Rs.10,000/-** (50,000-40,000). 11. Towards loss of amenities, the Tribunal has awarded an amount of Rs.20,000/-. Taking note of the injuries sustained, the whole body disability assessed by the Medical Board and considering the age of the petitioner, Rs.50,000/- will be just and reasonable compensation for loss of amenities and accordingly, the petitioner is entitled for an enhanced amount of **Rs.30,000/-** (50,000-20,000) under the said head. 12. For compensation towards extra nourishment, the Tribunal has awarded only Rs.2,000/- (500x4). Taking note of the injuries sustained by the petitioner **MACA NO. 1847 OF 2016 ..8..** and the period of treatment she had undergone, I re-fix the amount as Rs.10,000/- and the petitioner is entitled for an enhanced amount of **Rs.8,000/-** (10,000-2,000) under the said head. 13. An amount of Rs.2,55,000/- was awarded by the Tribunal towards disability compensation. Since I have re-fixed the income of the petitioner as Rs.6,000/- per month, the compensation for disability is re-calculated as Rs.3,06,000/- (6,000 x12x17x25/100) and the petitioner is entitled for an enhanced amount of **Rs.51,000/-** (3,06,000-2,55,000) on that count. 14. Towards bystander's expenses, the petitioner was awarded an amount of Rs.3,600. Since the petitioner was hospitalised for 44 days, she is entitled for an amount of Rs.8,800 (200x44 days) and therefore, an enhanced amount of **Rs.5,200/-** (8,800-2,600) is granted under the said head. **MACA NO. 1847 OF 2016 ..9..** 15. I find that the compensation awarded under other heads is just and reasonable. 16. The petitioner has filed I.A.No.1/2022 to accept certain documents with regard to the expenses incurred by her after the award of the Tribunal. Since the whole body disability assessed by the Medical Board is only 25%, the petitioner cannot claim future medical expenses. 17. The learned Counsel for respondents 1 and 2 has filed I.A.No.1/2020 producing the licence particulars of the 2[nd] respondent and contends that the 2[nd] respondent was having a valid driving licence at the time of the accident. However, the 1[st] respondent has not preferred any appeal against the award, challenging the finding with regard to the right of the insurer to recover the amount from the 1[st] respondent. Therefore, to recover the finding regarding the right of the insurer **MACA NO. 1847 OF 2016 ..10..** the payment under the award from the 1[st] respondent is not interfered with. 18. Accordingly, the petitioner is entitled for an enhanced compensation of **Rs.1,32,200/-** (28,000+10,000 + 30,000 + 8,000 + 5,200 + 51,000). The 3[rd] respondent insurance company shall deposit the said amount with 8% interest per annum from the date of petition till the date of deposit with proportionate costs within a period of two months from the date of receipt of a copy of this judgment. The 3[rd] respondent can recover the said amount from the 1[st] respondent by resorting to proceedings under section 174 of the Motor Vehicles Act, 1988. While calculating interest, the appellant will not be entitled for interest for a period of 39 days as per the directions of this Court in C.M.Application No.2183/2016 dated 03.07.2018 in this appeal. The appeal is disposed of accordingly. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB/02/08/2022