Smitha Sasi v. Robin Joseph Puliyappullil; Jimmy Joseph; The New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 19[TH] DAY OF MAY 2022 / 29TH VAISAKHA, 1944** **MACA NO. 1202 OF 2013** **AGAINST THE AWARD IN OPMV 1166/2007 OF MOTOR ACCIDENTS CLAIMS** **TRIBUNAL, MUVATTUPUZHA** ## **APPELLANT-PETITIONER:** **SMITHA SASI D/O.SASI, MANAMEL HOUSE, PAITTAKULAM KARA, KOOTHATTUKULAM VILLAGE. BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** ## **- RESPONDENTS RESPONDENTS:** **1 ROBIN JOSEPH PULIYAPPULLIL HOUSE, PURAPPUZHA POST-685583. 2 JIMMY JOSEPH S/O.MARKOSEKUTTY, NIRAPPEL HOUSE, PURAPUZHA POST, THODUPUZHA-685584. 3 THE NEW INDIA ASSURANCE CO.LTD. MUVATTUPUZHA BRANCH, PIN-686 661.** **BY ADV SRI.PMM.NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 1202 of 2013 **2** ## **JUDGMENT** This appeal has been filed against the Award passed in O.P. (M.V.)No.1166/2007 on the file of Motor Accidents Claims Tribunal, Muvattupuzha, out of injury sustained by the appellant in a motor accident occurred on 11.12.2006 while travelling on the pillion of motorcycle bearing Reg.No.KL-06/B due to hit with a motorcycle bearing Reg.No.KL-7/P 7080 ridden by the first respondent at Onakkoor. 2. It is alleged that the accident happened due to rash and negligent riding of the motorcycle by the first respondent. Immediately after the accident, the appellant was taken to Chazhikattu hospital Thodpuzha. Second respondent is the registered owner of the offending motorcycle and third respondent is the insurer. A total compensation of Rs.1,50,000/- was claimed. 3. Before the Tribunal, respondents 1 and 2 remained exparte. Third respondent filed written statement denying the rashness and negligence on the part of the first respondent. The policy coverage with respect to the offending vehicle is admitted. 4. PW1 examined and Exts.A1 to A10 marked from the side of the M.A.C.A No. 1202 of 2013 **3** appellant. Tribunal on evaluating the pleadings and evidence came to a conclusion that accident happened due to rash and negligent riding of the motorcycle by the first respondent and third respondent insurer is held liable to indemnify the second respondent, insured and a total compensation of Rs.1,39,630/- was also awarded. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, appellant approaches this Court in appeal for various grounds stated in the memorandum of appeal. 6. Service of notice is completed as against first respondent. Notice as against second respondent is dispensed with. Adv. Sri. P.M.M. Najeeb Khan filed vakalath on behalf of the third respondent. 7. Heard the learned counsel for the appellant and the learned counsel for the insurer. Lower court records were called for and perused. 8. The accident, injury sustained and the liability of the insurer are not in dispute. The only challenge is with regard to the quantum of compensation awarded by the Tribunal. 9. According to the learned counsel for the appellant, the appellant M.A.C.A No. 1202 of 2013 **4** is a Nursing Assistant and was drawing a salary of Rs.6,000/- per month. But the Tribunal taken the income notionally as Rs.2,500/-, which according to him, is very low. He would also contend that though disability certificate certifying permanent disability at 10% was issued by the doctor and the doctor was also examined as PW1, Tribunal taken the disability only at 6% and that is illegal. He would also contend that compensation awarded towards pain and suffering, loss of amenities etc are very low and hence seeks for enhancement of compensation on all heads. 10. Learned counsel for the insurer on the other hand would contend that a just and reasonable compensation has already been awarded and no interference is called for in this appeal. 11. The first aspect is with regard to the monthly income of the appellant. Though the appellant claims to be a Nursing Assistant in a hospital and claimed a monthly income of Rs.6,000/-, no evidence as such has been adduced either to prove her occupation or the income. However in Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the Apex Court notionally fixed the monthly income of a coolie in the year 2004 as M.A.C.A No. 1202 of 2013 **5** Rs.4,500/-. Accident in this case is on 11.12.2006. Following the above principle, the claimant being a 24 year old lady and claims to be a Nursing Assistant, her monthly income can notionally be taken as Rs.5,500/-. 12. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] the Apex Court has dealt with the general principles relating to compensation in injury sustained in a motor accident. 13. The injury sustained by the appellant as borne out from Ext.A6 wound certificate is pain and tenderness of right upper thigh (2) X-ray showed displaced fracture of shaft of right femur. Ext.A7 certificate issued by Dr. Thomas Sebastian, Chazhikattu Hospital, Thodupuzha where she had undergone treatment would certify that she had undergone inpatient treatment from 11.12.2006 and discharged on 25.12.2006. She had undergone surgery [closed interlocking nailing/SA]. X-ray taken on 30.01.2007 showed uniting fracture and advised partial weight bearing with support of axillary crutches. On 20/02/2007 x-ray showed uniting fracture, advised mobilization with support of one axillary crutches and advised full weight bearing and on M.A.C.A No. 1202 of 2013 **6** 20/03/07 x-ray showed uniting fracture. On 25/04/2007 she underwent dynamination/LA and on 30/04/2007 cleaning and dressing done. On 04/05/2007 suture was removed and she was advised to partial weight bearing with support of elbow crutches and on 14/05/2007 x-ray showed uniting fracture and advised mobilization without support. X-ray taken on 19/06/2007, 27/07/2007 and 10/09/2007 showed uniting fracture. On 01/10/2007 x-ray showed non uniting fracture and she was advised to come for admission and surgery. 14. In para No. 10 of the award, it has been found that she had undergone inpatient treatment for a period of 36 days. In the claim petition, the claimant alleged that she had undergone inpatient treatment from 11.12.2006 to 20.12.2006 and thereafter she continued treatment as out patient. As per Ext.A7, she had undergone inpatient treatment from 11.12.2006 to 25.12.2006. So finding of the Tribunal that she had undergone 36 days inpatient treatment is not seems to be correct. An amount of Rs.51,930/- had been awarded towards medical expenses. 15. PW1 is the Doctor who issued Ext.A11 disability certificate wherein he certifies 10% permanent whole body disability as per McBride Scale. During cross examination, PW1 the Doctor categorically M.A.C.A No. 1202 of 2013 **7** admitted that Ext.A11 certificate was not issued as per Government norms. Tribunal taken 6% permanent whole body disability taking into account the facts and circumstances and the nature of injuries sustained by the appellant. Course adopted by the Tribunal is seems to be just and reasonable in view of the nature of injuries as well as period of inpatient treatment undergone by the claimant. So 6% permanent disability adopted by the Tribunal is hereby approved. 16. Monthly income of the claimant has already been taken as Rs.5,500/-. The Tribunal awarded loss of earning for a period of 6 months, that can be approved. Therefore, under the head of loss of earnings, the claimant is entitled to get Rs.33,000/- (5,500 x 6). Amount already awarded is to be deducted, ie. 33,000-15,000, it will come to **Rs.18,000/-.** Towards transportation charges, an amount of Rs.5,000/has been claimed by the claimant. Tribunal awarded Rs.1,500/- towards transportation. Ext.A7 certificate issued by Dr. Thomas Sebastian, Chazhikattu Hospital would go to show that claimant had undergone out patient treatment on several occasions after inpatient treatment initially. So, an amount of Rs.4,000/- can be awarded towards transportation charges. Deducting the amount already awarded, the balance would be **Rs.2,500/-** (4,000-1,500). Rs.20,000/- and 15,000/- respectively M.A.C.A No. 1202 of 2013 **8** awarded towards pain and suffering and loss of amenities seems to be reasonable. Hence no interference is called for under those heads. 17. Next is with respect to the compensation awarded for permanent disability. Claimant was 24 years at the time of accident. As per **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** approved by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** the suitable multiplier would be '18' instead of '17' adopted by he Tribunal. Hence towards permanent disability, the claimant is entitled to get 5,500x12x18x6/100=71,280. Deducting the amount already awarded, the balance would be **Rs.40,680/-** (71,280-30,600). Hence, the claimant is entitled to get enhanced compensation of Rs.61,180/(40,680+2,500+18,000) rounded to **Rs.61,200/-** . 18. In the result, appeal allowed and claimant is allowed to realize enhanced compensation of **Rs.61,200/-** (Sixty one thousand two hundred only) in this appeal, which will carry interest at the rate of 6.5% per annum from the date of petition till realization. 3[Rd] respondent/insurer is directed to pay the enhanced compensation granted in this appeal, together with interest deducting the liability of the claimant towards balance court fee, within a period of two months from M.A.C.A No. 1202 of 2013 **9** the date of receipt of certified copy of this judgment. Appellant/claimant shall provide his Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, within one month from the date of receipt of certified copy of this judgment. Sd/- **M.R.ANITHA, JUDGE** rps/