Siji v United India Insurance Company Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944 ``` ## `MACA NO. 186 OF 2019` ``` [AGAINST THE AWARD DATED 22.01.2016 IN OP(MV)NO.638/2012 ON THE FILE OF THE PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE] ``` ## `APPELLANT/PETITIONER:` ``` SIJI, AGED 29 YEARS, D/O.SIVARAJAN, CHAPPANGAKKANDI HOUSE, THONDIMMAL, THIRUVAMBADI.P.O., KOZHIKODE, PIN-673603. ``` ``` BY ADV V.N.RAMESAN NAMBISAN ``` ## `RESPONDENT/RESPONDENT NO.2:` ``` UNITED INDIA INSURANCE COMPANY LTD., GROUND FLOOR, KDC BANK BUILDING, MAIN ROAD, KUNNAMANGALAM, PIN-673 571. ``` ``` BY ADV.SRI.P.K.MANOJ KUMAR, SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 186 OF 2019 ``` ``` -2- ``` ## `JUDGMENT` ``` This matter is of the year 2019 and has not been admitted. However, both sides are ad idem that it can be disposed of, after being formally ``` ``` admitted, based on the undisputed evidence on record, handed over by them across the Bar. ``` ``` 2.I, therefore, admit this Appeal and proceed to dispose it of finally, with the consent of both sides. ``` ``` 3.The appellant was involved in a road ``` ``` accident, while she was travelling in a Jeep, when it was hit by the offending vehicle, driven ``` ``` in a rash and negligent manner. She suffered serious injuries, which constrained her to file OP(MV) No.638/2012 before the Motor Accidents Claims Tribunal (‘Tribunal’, for short), Kozhikode,seeking compensation of Rs.9,70,000/-, but which has been allowed only ``` ``` MACA NO. 186 OF 2019 ``` ``` -3- ``` ``` to the extent of Rs.81,570/-. She thus impugns the compensation awarded by the Tribunal as being inadequate. ``` ``` 4.Sri.V.N.Ramesan Nambisan – learned ``` ``` counsel for the appellant, submitted that the compensation awarded by the Tribunal under the heads “Pain and Suffering”, “Loss of Amenities” and “Loss of Earning” is woefully low, primarily because it has adopted an incorrect notional income in favour of his client. He then argued that the injuries she suffered are grievous and therefore, being entitled to much higher amounts under the heads “Pain and Suffering” and “Loss of Amenities”. ``` ``` 5.In response, Sri.P.K.Manoj Kumar – ``` ``` learned Standing Counsel for the Insurance Company, submitted that the computations adopted by the Tribunal are irreproachable; and thus prayed that this Appeal be dismissed. ``` ``` MACA NO. 186 OF 2019 ``` ``` -4- ``` ``` 6.I have considered the afore rival ``` ``` submissions on the touchstone of the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that it can be acted upon by this Court without dispute. ``` ``` 7.On the question of the notional income of the appellant, since there is no evidence on record to prove it in any manner, except her statement, this Court will have to go by the postulations in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) ``` ``` 13 SCC 236]. However, while doing so, the uncontroverted factum of the appellant working as a nurse should also be taken into account, and the consequential impact of the ratio in Rajani v. Oriental Insurance Company Limited [2022 (5) KLT OnLine 1012 (SC)]. ``` ``` 7.Going by the ratio in the aforesaid ``` ## `MACA NO. 186 OF 2019` ``` -5- ``` ``` judgments, this Court will have to take a minimum of Rs.8,000/- as the income of the appellant - it being the figure standardized in ``` ``` Ramachandrappa (supra) to the notional income of a person with unascertainable income in the year 2011 – and must add to it, reckoning the fact that she is a nurse. I am, therefore, of ``` ``` the firm view that a figure of Rs.10,000/- would ``` ``` be sufficient in modification of the amount of ``` ``` Rs.9,000/- reckoned by the learned Tribunal. ``` ``` 8.That so said, the medical evidence on record show that the appellant suffered the ``` ``` following injuries: ``` - `(a) Lacerated wound on forehead 1*1*1 cm.` - `(b) Pain and Tenderness clavicular region` - `Bilateral.` - `(c) Fracture shaft of Humerus right.` - `(d) Fracture clavicle 1/3[rd] right.` ``` Since the appellant suffered two fractures, ``` ``` MACA NO. 186 OF 2019 ``` ``` -6- ``` ``` I am certain that her pain and suffering would be much more than what has been adverted to by ``` ``` the learned Tribunal. ``` ``` 9.I, therefore, propose to enhance the ``` ``` compensation under the head “Pain and Suffering” to Rs.40,000/-; and taking note of the ``` ``` inconvenience caused to the appellant - who is a ``` ``` lady and nurse - during the period when she was under treatment, am certain that the ``` ``` compensation under the head “Loss of Amenities” must also be enhanced to Rs.20,000/-. ``` ``` Resultantly this Appeal is partly allowed in ``` ``` the following manner: ``` ``` (a)The compensation for “Loss of Earning” is enhanced to Rs.50,000/- (Rupees fifty ``` ``` thousand only), from Rs.45,000/-, reckoning the monthly income of the appellant to be Rs.10,000/- per month. ``` ``` (b) The compensation under the head “Pain ``` ``` MACA NO. 186 OF 2019 ``` ``` -7- ``` ``` and Suffering” is enhanced to Rs.40,000/- (Rupees forty thousand only), from Rs.20,000/- ``` ``` as awarded by the Tribunal. ``` ``` (c) The compensation under the head “Loss of Amenities” is enhanced to Rs.20,000/- (Rupees twenty thousand only), from Rs.10,000/- as ``` ``` awarded by the Tribunal. ``` ``` (d) In all other heads, the amounts granted ``` ``` by the Tribunal will remain intact. ``` ``` Needless to say, theappellant will be at ``` ``` full liberty to recover the compensation, as enhanced by this Court, from the Insurance ``` ``` Company, along with interest at the rate of 9%, ``` ``` as awarded by the Tribunal, from the date of ``` ``` claim until it is recovered. She will also be ``` ``` entitled to proportionate costs on the enhanced ``` ``` amount as ordered by the Tribunal. ``` **==> picture [377 x 13] intentionally omitted <==** ``` calculating the interest as afore, a period of ``` ``` MACA NO. 186 OF 2019 ``` **==> picture [22 x 9] intentionally omitted <==** ``` 932 days, being the delay in filing this Appeal, ``` ``` shall stand excluded. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` ``` akv ```