Selbi W/o Saju v Oriental Insurance Co. Ltd.

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 1[ST] DAY OF OCTOBER 2021 / 9TH ASWINA, 1943 ## MACA NO. 3107 OF 2014 [AGAINST THE AWARD IN OP(MV)NO. 565/2007 DATED 17.7.2013 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR] ## APPELLANT/PETITIONER: SELBI W/O SAJU, AGED 29 YEARS,PULLOORKUTTY HOUSE, EDATHURUTH, NEDUGAPARA,VENGOOR VILLAGE. BY ADV SRI.A.N.SANTHOSH ## RESPONDENT/S: THE ORIENTAL INSURANCE CO. LTD. BRANCH OFFICE, ELENGICAL PLAZA, CHURCH VIEW JUNCTION, KOTHAMANGALAM- 686 691 BY SRI.R.AJITHKUMAR VARMA, SC. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 01.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.3107 of 2014 2 ## JUDGMENT The appellant is the petitioner in OP(MV)No.565/2007 on the file of the Motor Accidents Claims Tribunal, North Paravur. The said claim petition was filed by the petitioner seeking compensation for the injuries sustained by her in a motor accident occurred on 27.4.2007. According to the appellant, she was aged 22 years and was working as a labourer at the time of the accident and the monthly income claimed was Rs.3,000/-. On account of the accident, she sustained very serious injuries which prevented her from pursuing her avocation for a long duration. In such circumstances, she claimed an amount of Rs.1,00,000/- as compensation. 2. The 3[rd] respondent/Insurance Company alone contested the matter by fling a written statement wherein they have accepted the MACA No.3107 of 2014 3 coverage of policy but raised the contention of violation of policy conditions, by the insured. The quantum of compensation was also seriously disputed by them. 3. The evidence in this case consists of Exts.A1 to A8(b) from the side of the appellant and no evidence was adduced from the side of respondents. After the trial, the Tribunal passed an award allowing an amount of Rs.70,800/- as compensation which was directed to be deposited by the 3[rd] respondent-Insurance Company along with interest at the rate of 8% per annum. The contention of the Insurance Company regarding the violation of policy conditions was also found against the Insurance Company. Being dissatisfied with the quantum of compensation, this appeal is filed. 4. Heard both sides. 5. The learned counsel for the appellant MACA No.3107 of 2014 4 contends that, the monthly income, even though claimed by the appellant in the application was Rs.3,000/-, considering the peculiar facts and circumstances of the case it has to be taken at a higher rate. It was pointed out that the appellant was an ordinary labourer, aged 22 years who was not aware of the legal intricacies of a claim in this regard. The learned counsel also placed reliance upon the decision rendered by the Hon’ble Supreme Court in Minu Rout v. Satya pradyumna Mohapatra[2013(10)695] wherein the Hon’ble Supreme Court was pleased to take the monthly income more than what was claimed in the claim petition. The appellant also seeks enhancement of compensation under the head of pain and suffering and loss of amenities by particularly bringing to my attention the serious nature of injuries, which are extracted by the Tribunal MACA No.3107 of 2014 5 in paragraph 9 of the award. 6. On the other hand, the learned counsel for the Insurance Company would argue that, as far as the claim of income is concerned, it is a matter within the knowledge of the claimant and since the amount mentioned as monthly income in the claim petition is Rs.3,000/- only, under no circumstances a different yardstick can be applied. The learned counsel for the Insurance Company points out that, the Tribunal has already taken the entire monthly income as claimed by the appellant and hence no interference is warranted in such circumstances. 7. It is true that the monthly income claimed is just Rs.3,000/-. The purpose of an application under Section 166 of the Motor Vehicles Act is to ensure just compensation to the victim so that the victim is reasonably MACA No.3107 of 2014 6 compensated for the loss suffered. It is a welfare legislation and to be interpreted and implemented to advance the object of the enactment, i.e welfare of the motor accident victims. In this case, as rightly pointed out by the learned counsel for the appellant, the appellant is an ordinary labourer who is not aware of the complications and consequences of legal proceedings under Section 166 of the Motor Vehicles Act. In most of such cases, the column for monthly income in the claim petition would be filled by lawyers, as the parties may not be in a position to give any proper inputs, because of lack of awareness. As the appellant in this case being an ordinary person, and not a person with regular employment, probability that she failed to appraise her lawyer properly as to her income, cannot be ruled out. In such circumstances, denying her due entitlement MACA No.3107 of 2014 7 would be not in the interest of justice. In Minu Rout's case (Supra), the Honourable Supreme Court, considered the question of monthly income of driver who died in an accident. Even though, the monthly income claimed therein was Rs 5,000/-, the Honourable Supreme Court observed that, the driver being a skilled employee, it is a matter which can be taken judicial notice of, and was pleased to take the monthly income as Rs 6,000/-. Observations of the Honourable Supreme Court are as follows, _“The appellants claimed compensation under the heading of loss of dependency as they were all dependents upon the earnings of the deceased Susil Rout. It is an undisputed fact that Susil Rout was working as a driver of the car which is a skilled job. Appellants have stated in the claim petition and in the evidence of PW-1 that the deceased was earning Rs.5,000/- per month.The oral evidence of PW-1 is not accepted by the Tribunal, solely for the reason that the appellants did not produce_ MACA No.3107 of 2014 8 _documentary evidence to prove the monthly salary of the deceased as Rs.5,000/- per month as claimed by them. However, it had taken monthly income of the deceased at Rs.3,000/-, for the purpose of determining the multiplicand. Out of Rs.3,000/- p.m., 1/3rd amount was deducted towards personal expenses of the deceased and arrived at Rs.3,84,000/- towards loss of dependency. Out of that compensation, 50% was deducted towards contributory negligence on the part of the deceased and Rs.1,92,000/- was awarded under the above heading. The compensation awarded by the Tribunal is approved by the High Court, which is not only erroneous in law but also suffers from error in law.T hough the claim of the appellants is Rs.5000/- as monthly salary of the deceased for the purpose of determining the loss of dependency, the actual entitlement of the salary of the deceased should have been taken at Rs.6000/- per month by the Tribunal forwarding just and reasonable compensation, which is the statutory duty of the Tribunal and the Appellate Court.”_ In this case the said principle can be applied for the following reason. The injuries as extracted in paragraph 9 of the award indicate MACA No.3107 of 2014 9 serious injuries which would have caused serious difficulties for the appellant in her employment. This is particularly because, she was an ordinary labourer who requires to have physical fitness for carrying out her duties effectively. It is true that, there is no material that she was a skilled employee, yet I am inclined to take judicial notice of her probable income at higher rates than claimed, to secure the ends of justice. In this regard, it is to be noted that in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011)13 SCC 236] Hon’ble Supreme Court was pleased to take the monthly income of a coolie as Rs.4,500/- in respect of an accident occurred in the year, 2004. In Syed Sadiq v. Divisional Manager, United India Insurance Company Limited [(2014)2 SCC 735], the Hon’ble Supreme Court was pleased to take MACA No.3107 of 2014 10 the monthly income of a vegetable vendor as Rs.6,500/- in respect of an accident occurred in the year, 2008. When we consider the aforesaid yardstick in the factual back ground of this case, the amount of Rs.3,000/- cannot be treated as a reasonable figure as the accident occurred in the year 2007. Thus, in view of the peculiar factual situation, I am inclined to fix the monthly income at a higher rate than claimed by the appellant. In the facts and circumstances of this case, I am of the view that, an amount of Rs.6,000/- would meet the ends of justice as far as the appellant is concerned and it is fixed as such. The impact of enhancement of the monthly income would be only in respect of compensation under the head of loss of earnings because, no documents are produced by the appellant to show any permanent disablement. The Tribunal has MACA No.3107 of 2014 11 awarded an amount of Rs.12,000/- for loss of earnings which was calculated at the rate of Rs.3,000/- for a period of four months. Considering the nature of injuries and its impact, I am of the view that, the period of four months adopted by the Tribunal requires re-consideration. At any rate, she would have prevented from attending her work for a period of six months. In such circumstances, I am inclined to grant compensation for loss of earnings at the rate of 6,000/- for a period of six months. The amount receivable by the appellant under this head is Rs.36,000/(Rs.6,000x6). The Tribunal has already awarded an amount of Rs.12,000/- under this head. The balance amount receivable by the appellant comes to Rs. 24,000/-. 8. Under the head of pain and suffering, the Tribunal awarded an amount of Rs.20,000/- MACA No.3107 of 2014 12 and an amount of Rs.15,000/- was awarded for loss of amenities. The learned counsel for the Insurance Company points out that, the claim under these heads made by the appellant are Rs.25,000/- and Rs.20,000/- respectively. According to the learned Counsel, taking into account the circumstances existed in this case, reasonable amounts were already granted by the Tribunal under these heads and, therefore, no interference is warranted. However, it is evident from the records that, she suffered very serious injuries. In such circumstances, the amount of Rs.20,000/- granted under the head of pain and suffering requires reconsideration. Considering the peculiar factual situation in this case which I have already dealt with in the above paragraphs, I am of the view that,a further sum of Rs. 10,000/- would be a reasonable figure. With regard to the MACA No.3107 of 2014 13 compensation for loss of amenities also, the very same reasoning is applicable. Even though an amount of Rs.20,000/- was claimed under this head in the claim petition, considering the peculiar factual situations of this case, I am of the view that, an amount of Rs. 15,000/- more can be granted. Thus, the total additional amount of compensation receivable by the appellant would come to Rs.49,000/- (Rupees Forty nine thousand only)[Rs.24000+10000+15000]. The 3[rd] respondent Insurance Company is directed to deposit the said amount along with interest at the rate of 8% from the date of petition within a period three months from the date of receipt of copy of this judgment. It is made clear that the said amount will not carry interest for 386 days as the delay in filing the appeal has been condoned on such terms vide order dated MACA No.3107 of 2014 14 3.4.2019 in C.M.Appl.No.3557 of 2014. The appeal is disposed of as above. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk