Sindhu v. Binesh Baby & The Oriental Insurance Co. Ltd. (MACA Nos. 1223/2013 & 1210/2013)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **THURSDAY, THE 1[ST] DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945** **MACA NO. 1223 OF 2013** **AGAINST THE ORDER/JUDGMENT OPMV 1070/2008 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANT/S:** **SINDHU AGED 38 YEARS W/O MANIKANDAN, KAPPITAZHIKATHU, ALTHARAMOODU, KAVANADU P.O, KOLLAM DISTRICT** **BY ADVS. SRI.P.SAMSUDIN SMT.NIMA JACOB** ## **RESPONDENT/S:** - **1 BINESH BABY S/O T.P BABY, TGEKKANATHU HOUSE, POOKKATTUPADY, EDATHALA P.O, 683561, ERNAKULAM DISTRICT** - **2 THE MANANGER THE ORIENTAL INSRANCE CO. LTD, B.O EBNEZER BUILDING 682018, ERNAKULAM BY ADV SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.02.2024, ALONG WITH MACA.1210/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.1223 & 1210 of 2013 : 2 : ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 1[ST] DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945** **MACA NO. 1210 OF 2013** **AGAINST THE ORDER/JUDGMENT OPMV 533/2009 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANT/S:** **PARAMASIVAM AGED 43 YEARS, SRUTHI BHAVAN, KANIYAMTHODU, DECENT JUNCTION P.O. MUKHATHALA, KOLLAM DISTRICT.** **BY ADVS. SRI.P.SAMSUDIN SMT.NIMA JACOB** ## **RESPONDENT/S:** - **1 BINESH BABY S/O. T.P. BABY, THEKKANATHU HOUSE, POOKKATTUPADY, EDATHALA P.O - 683 561, ERNAKULAM DISTRICT.** - **2 THE MANAGER** **THE ORIENTAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, EBNEZER BUILDING - 683 018, ERNAKULAM. BY ADV SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.02.2024, ALONG WITH MACA.1223/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.1223 & 1210 of 2013 : 3 : ## **JUDGMENT** Both these appeals arose from a common award passed by the Motor Accident Claims Tribunal, Kollam, in OP(MV) Nos.1070/2008 and 533/2009. 2. The said claim petitions were submitted by the respective claimants seeking compensation for the injuries sustained to them in a motor accident that occurred on 24.04.2008. The accident occurred while the appellants/claimants were walking through the road; a pickup van bearing registration No.KL-40/A 5141 knocked down the said persons. Due to the said incident, the appellants sustained serious injuries. The said pickup van was being driven by the 1[st] respondent and it was owned by him. The 2[nd] respondent was the insurer of the pickup van. The claim petitions were submitted in such circumstances. The said claim petitions were tried along with two other claim petitions that arose from the same accident. 3. The evidence in these cases consists of oral testimony of PW1 and Exts.A1 to A25. No evidence was adduced by the respondents. M.A.C.A. No.1223 & 1210 of 2013 : 4 : 4. After the trial, the tribunal found that the accident occurred due to the negligence on the part of the 1[st] respondent and being the insurer of the vehicle, the 2[nd] respondent was held liable to pay the compensation. In OP(MV) No.1070/2008, the tribunal passed an award, allowing a total compensation of Rs.47,000/-, whereas in OP(MV) No.533/2009, the tribunal passed an award allowing a total compensation of Rs.3,48,000/-. The said amounts were directed to be deposited by the 2[nd] respondent with interest at the rate of 7.5% per annum from the date of petition till realisation and with proportionate costs. These appeals were submitted by the respective claimants seeking enhancement of compensation. 5. Heard Sri. P. Samsudin, the learned counsel appearing for the appellants and Sri. V.P.K. Panicker, the learned counsel appearing for the respondents. 6. The only question that arises for consideration is whether the amounts awarded by the tribunal in the said awards are reasonable or not. The said questions are dealt with in the manner as follows: M.A.C.A. No.1223 & 1210 of 2013 : 5 : ## **7. OP(MV) No.1070/2008 which is the subject matter in MACA No.1223/2013** 7.1. In this case, the appellant was a housewife aged 28 years at the time of the accident. Consequent to the accident, she sustained compound fractures in both bones of the left leg and also lacerated injuries on the left maxillary area and right foot. The monthly income claimed was Rs.2,000/-. Even though no disability certificate was produced, the tribunal took the percentage of disability of the appellant as 5% and calculated the compensation by taking the monthly income as Rs.2,000/- thereby granting an amount of Rs.20,400/- for permanent disability. The learned counsel for the appellant points out that the monthly income taken by the tribunal was on the lower side and it requires reconsideration. The learned counsel appearing for the insurer would point out that, in fact, there was no disability sustained by the appellant, and no disability certificate evidencing the same was also produced. It is also his case that, going by the nature of injuries, it is highly unlikely that the appellant had suffered any physical disability as well. Despite the same, the tribunal fixed physical disability as Rs.5% without any materials in this regard and granted M.A.C.A. No.1223 & 1210 of 2013 : 6 : compensation. 7.2. After perusing the materials placed on record, I find some force in the said contention. As rightly pointed out by the learned counsel appearing for the insurer, there is nothing on record to indicate that the fracture of both bones suffered by the appellant resulted in any physical disability of the appellant. Therefore, I do not find any scope for any interference as far as the amount awarded by the tribunal for compensation for disability is concerned. 7.3. The next aspect to be considered is the compensation for loss of earnings. The tribunal has granted compensation under this head for a period of three months by taking the monthly income as Rs.2000/-. The learned counsel for the appellant contended that, merely because the monthly income shown in the claim petition was Rs.2000/-, while calculating the compensation, the amount should not necessarily be restricted to the said claim. The learned counsel further points out that when the method of computation of monthly income evolved from the principles laid down by the Hon’ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 M.A.C.A. No.1223 & 1210 of 2013 : 7 : SCC 236], and **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735] is taken into consideration, the monthly income for any worker without any skills could be taken as Rs.6,500/- in respect of an accident occurred in the year 2008 (by fixing the basic monthly income as Rs.4500/- for the year 2004 and adding Rs.500/- per year for the subsequent years). The learned counsel for the insurer opposes the said contention by pointing out that since the monthly income declared by the appellant in the claim petition was Rs.2000/, it is not necessary to accept any amount higher than the same for the purpose of assessing the compensation. 7.4. After considering all the relevant aspects, I find force in the contention put forward by the learned counsel for the appellant. It is to be noted that, as far as a housewife is concerned, she is a non-earning member. Nobody can evaluate the services rendered by her in her capacity as a housewife in monitory terms. However, since the compensation under Section 166 of the Motor Vehicles Act can be only in monetary terms, it has become necessary to evaluate the services of such a housewife in terms of money. While doing the said exercise, the fact that the appellant mentioned a M.A.C.A. No.1223 & 1210 of 2013 : 8 : lesser amount in the claim petition cannot prevent the court or tribunal from taking a higher monthly income if the situation warrants adoption of a higher income. This is particularly because the ultimate object of the provisions of the Motor Vehicles Act is to ensure the welfare of the victims of motor accidents by ensuring ‘just compensation’ to them. As far as the housewife is concerned, the services rendered by her to the other members of the family, including the earning members of the family, are unavoidable and immeasurable. Therefore, under any circumstances, the said services cannot be evaluated at lesser terms than what is usually assessed by following the method of computation of monthly income as per the observations in **Ramachandrappa and Syed Sadiq.** Therefore, I am of the view that the facts and circumstances of the case would justify taking a monthly income of Rs.6,500/- calculated in the manner referred to above. In this regard, when coming to the question of compensation for loss of earnings, it is discernible from the medical records that the injuries sustained by the appellant might have prevented her from carrying out her duties as a housewife, at least for a period of four months. Therefore, the compensation has to be calculated for four months; M.A.C.A. No.1223 & 1210 of 2013 : 9 : since I have already accepted the monthly income as Rs.6500/-, the compensation to be awarded under this head would come to Rs.26,000/-. After deducting Rs.6,000/- already awarded by the tribunal under this head, the additional compensation would come to Rs.20,000/-. 7.5.. The next aspect relates to the compensation for pain and suffering. It is discernible from the records that she had undergone inpatient treatment for seven days consequent to the injuries. In such circumstances, I deem it appropriate to grant a further sum of Rs.10,000/- under the said head. Similarly, no amount is seen awarded towards the loss of amenities. Considering the nature of the injuries and the possible impact that can have on the life of the appellant, I deem it appropriate to grant an amount of Rs.15,000/- under the said head. Thus, the total additional compensation receivable by the appellant in this case is determined as Rs.45,000/- [20000+10000+15000]. ## **8. OP(MV) No.533/2009 which is the subject matter in MACA No.1210/2013.** 8.1. In this case, the appellant was 40 years old and was working as a mason with a monthly income of Rs.5,000/-. It was M.A.C.A. No.1223 & 1210 of 2013 : 10 : contended that he suffered 50% disability consequent to the injuries sustained in the accident and to substantiate the same, Ext.A24 was relied on by the appellant. However, due to the reason that the doctor who issued the certificate was not examined, the tribunal accepted the percentage of disability as 20% only. It is to be noted in this regard, as per Ext.A15, the appellant sustained the following injuries: “Abrasion 6x6cm over the chest Abrasion 5x5cm chest right side Abrasion 25x10cm right abdomen Lacerated injury 15x1x1cm above the anterior superior iliac spine Abrasion 10x10cm right thigh Abrasion 10x10cm on the left thigh Movements of thigh right restricted Fracture lower third of femur right.” 8.2.. Exts.A16 and A22 would show that the appellants sustained a fracture of the right leg and 7th rib. He had undergone prolonged treatment. When considering the nature of injuries sustained, even though it indicates serious injuries, careful scrutiny of the same does not indicate the possibility of a permanent partial disability as high as 50%, which is the certification made in Ext.A24. Presumably, because of this reason, the tribunal made an assessment on its own and fixed the disability as 20%. When considering the nature of the injuries as is discernible from the M.A.C.A. No.1223 & 1210 of 2013 : 11 : records, I do not find any justifiable reason to interfere in the finding of the tribunal in fixing 20% disability as the same appears to be probable in the nature of the injuries sustained. Therefore, the said percentage of disability is retained. However, it is seen from the records that the tribunal took the monthly income as only Rs.4000/which appears to be on the lower side. The claim in this regard was only Rs.5,000/- and considering the fact that the accident occurred in the year 2008, under no circumstances the said amount could be treated as unreasonable. Therefore, the amount of Rs 5000/- can be accepted for assessing the compensation. As the appellant was 40 years old, the multiplier applicable is 15. Thus, while reassessing the compensation with the monthly income as Rs.5000/- and taking the physical disability as 20%, the amount of compensation would come to 1,80,000/- (5000x12x15x20/100). The amount already awarded by the tribunal under this head is Rs.1,44,000/- and thus, this would result in an additional compensation of Rs.36,000/-. 8.3. The tribunal has already awarded Rs.50,000/- each under the head of loss of amenities and pain and suffering, which appears to be reasonable. When moving on to the other heads, it M.A.C.A. No.1223 & 1210 of 2013 : 12 : is to be noted that the tribunal has granted compensation for loss of earnings for the period of 9 months, taking note of the prolonged treatment which he availed. Since I have already refixed the monthly income as Rs.5000/-, a further sum of Rs.9,000/- is to be awarded under the said head. Similarly, the appellant was practically bedridden for a substantial period and it is evident from the records that the treatment itself extended for a substantial period. In such circumstances, some more amount needs to be granted under the head of bystander expenses as the amount of Rs.8,000/- already awarded by the tribunal appears to be on the lower side. Therefore, a further sum of Rs.7,000/- is awarded under this head. Thus the total additional compensation is determined as Rs.52,000/- (36000+9000+7000). In such circumstances, these appeals are allowed. The award passed by the tribunal in OP(MV) Nos.1070/2008 and 533/2009 passed by the Motor Accident Claims Tribunal, Kollam are hereby modified by granting an additional compensation of Rs.45,000/- Rupees forty five thousand only) and 52,000/- (Rupees fifty two thousand only) respectively and the said amounts shall be deposited by the 2[nd] respondent insurer, with interest at the rate as M.A.C.A. No.1223 & 1210 of 2013 : 13 : ordered by the tribunal and proportionate costs. The said deposit shall be made within a period of three months from the date of receipt of a copy of this judgment. As these appeals were filed with petitions to condone the delay of 514 days, the 2[nd] respondent insurance company shall be at liberty to exclude the said period while computing the interest on the additional compensation. It is further ordered that the claimants shall furnish the details of the PAN card, Aadhar card and bank details to enable the respondents to make the deposit as ordered above, within a period of two months from the date of receipt of a copy of this judgment. In case, they fail to furnish the said details, it shall be open for the insurance company to deposit the said amount before the tribunal. **Sd/-** **ZIYAD RAHMAN A.A. JUDGE** ncd/