Sony Anson v. Manuel D. Silva etc. (MACA No. 805 of 2015)

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL WEDNESDAY, THE 3RD DAY OF JANUARY 2018 / 13TH POUSHA, 1939 MACA.No. 805 of 2015 AGAINST THE AWARD DATED 25-07-2014 IN OPMV NO.2163/2008 of SPL.C SPE/CBI-I&3 ADD.DC.ADD MACT,EKM APPELLANT(S) SONY ANSON,AGED 36 YEARS, W/O.ANSON, MALIYAKKAL HOUSE, 14/662 D, CHULLIKKAL, THOPPUMPADY.P.O., ERNAKULAM DISTRICT. BY ADVS.SRI.MARTIN G.THOTTAN SRI.T.ABY JACOB RESPONDENT(S): 1. MANUEL D.SILVA S/O.PETER D.SILVA, HOUSE NO.17/880, DISILVA DALE, PALLURUTHY, KOCHI-6. 2. PRASANTH V.D VELIYIL HOUSE, NEAR N.K.N. HOSPITAL, KUMBALANGHI, KOCHI-7. 3. THE NATIONAL INSURANCE CO. LTD. COCHIN DIVISIONAL OFFICE, AJAY VIHAR, M.G.ROAD, KOCHI-16. 4. M/S. REEFCO ENGINEERING WORKS, JAIRAIM BUILDING, W.ISLAND, KOCHI-3. R3 BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI BY SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03-01-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DST ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = =** **==> picture [208 x 15] intentionally omitted <==** **- - - - - - - - - - - - - - - - - - - - - -** _Dated this the 3[rd] day of January, 2018_ ## **J U D G M E N T** The appellant herein was the petitioner and the respondents are the respondents in O.P.(MV) No.2163 of 2008, which was allowed by the Motor Accidents Claims Tribunal ( _hereinafter referred to as 'the Tribunal')_ Ernakulam, by the impugned award granting an amount of Rs.14,79,962/- as compensation. This appeal is filed under Section 173 of the Motor Vehicles Act, 1988, challenging the inadequacy of the quantum of compensation determined by the Tribunal under various heads of claim. 2. Heard the learned counsel for the appellant and the learned counsel appearing for the respondents. 3. According to the appellant, on 20.03.2008, **M.A.C.A.No. 805 of 2015(C)** ## **-: 2 :-** at about 2 pm, while the appellant was travelling in a motorcycle as pillion rider through EdakochiThoppumpady road, the offending container lorry driven by the 2[nd] respondent, owned by the 1[st] respondent and insured with the 3[rd] respondent came in a rash and negligent manner from the same direction and while trying to overtake the motorcycle, it hit on the back side of the motorcycle. Due to the impact of the hit, the motorcycle with the appellant fell down on the road and the appellant sustained serious injuries. The appellant claimed Rs.25,00,000/- as compensation and the Tribunal after considering the evidence on record granted an amount of Rs.14,79,962/- as compensation. 4. The learned counsel for the appellant advanced arguments challenging the inadequacy of the ## **M.A.C.A.No. 805 of 2015(C)** ## **-: 3 :-** quantum of compensation granted under the heads, loss of amenities and enjoyment in life, compensation for continuing permanent disability and loss of earning power, compensation for disfiguration and the cost of periodical replacement of the artificial limb. According to the learned counsel for the appellant, it is evident from Ext.A13 that the appellant was employed in a private company by name 'Nas fisheries Private Limited' and she was getting Rs.5,000/- per month as salary. But, the Tribunal had rejected the said salary certificate and fixed the monthly salary at Rs.4,000/-, notionally. Secondly, it is contended that the amount determined under the heads, loss of amenities and enjoyment in life, compensation for disfiguration and cost of periodical expenses for replacement of the artificial limb are too low and ## **M.A.C.A.No. 805 of 2015(C)** ## **-: 4 :-** inadequate. 5. Per contra, the learned counsel for the Insurance Company advanced arguments to justify the quantum of compensation determined under the aforesaid heads. According to the learned counsel for the Insurance Company, in the absence of any supporting evidence and the examination of the employer, the Tribunal can be justified in rejecting Ext.A13 salary certificate. So also, it is contended that the quantum of compensation determined under the heads, loss of amenities and enjoyment in life, compensation for disfiguration and cost of periodical expenses for replacement of artificial limb are just and fair and there is no scope for interference in this appeal. 6. In view of the arguments at the Bar, the question to be considered is whether the Tribunal is **M.A.C.A.No. 805 of 2015(C)** **-: 5 :-** justified in determining the quantum of compensation under the aforesaid heads of account? Admittedly, the appellant was aged 29 years only at the time of accident. I have meticulously gone through Ext.A13 salary certificate. It is not disputed that the said certificate was issued by a private limited company; but the employer who issued the certificate was not examined in evidence. No evidence was adduced to prove that the appellant was an employee in the said Company. So as rightly held by the Tribunal, the non-examination of the employer, who issued Ext.A13 salary certificate is fatal and on that account no reliance can be placed on Ext.A13 certificate. In the absence of any other corroboratory evidence to prove the claim of Rs.5,000/- per month as monthly salary, the Tribunal is justified in taking Rs.4,000/- as notional monthly income of the ## **M.A.C.A.No. 805 of 2015(C)** ## **-: 6 :-** appellant. It is justifiable, in view of the decision of the Apex Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ [(2011) 13 SCC 236]. 7. In the above view, the Tribunal is justified in fixing Rs.4,56,960 as compensation for continuing permanent disability. The injuries sustained by the appellant and consequential amputation of right leg are not disputed or challenged in evidence. Going by the determination of the quantum of compensation under various heads, it is seen that Rs.75,000/- was granted under loss of amenities and enjoyment in life and Rs.50,000/as compensation for disfiguration. This Court is of the view that in view of the age of the deceased at the time of accident and her remaining life span, the quantum of compensation determined under the **M.A.C.A.No. 805 of 2015(C)** ## **-: 7 :-** above heads are disproportionate and inadequate. Therefore, the quantum of compensation fixed under the head, loss of amenities and enjoyment in life would stand enhanced and modified to Rs.1,50,000/-. The compensation for disfiguration would stand enhanced and modified to Rs.1,00,000/-. 8. That apart, as rightly pointed out by the learned counsel for the appellant Rs.25,000/- was granted towards cost of periodical replacement of artificial limb. It is not disputed that the appellant was aged 29 years only at the time of accident and the replacement of artificial limb is a recurring periodical event throughout the remaining life span of the appellant. Therefore, Rs.25,000/is disproportionate with the remaining long life span of the appellant. Consequently, the quantum of compensation determined as cost of periodical ## **M.A.C.A.No. 805 of 2015(C)** ## **-: 8 :-** replacement of artificial limb would stand enhanced and modified to Rs.75,000/-. The total amount granted as additional enhanced compensation is Rs.1,75,000/- (Rs.75,000+50,000+50,000). 9. While considering the entitlement of the compensation under the aforesaid heads of claim, this Court is inclined to consider the sufferings of the appellant as a house maker, who is inclined to look after the entire family and household affairs and this Court did so. Besides, at any view point the enhancement made above is justifiable, when her sufferings, for the remaining long period of her life as house maker of the family are taken into account. 10. Thus, the appellant is entitled to get a total sum of Rs.16,54,962/-(14,79,962 + 1,75,000) as compensation and the quantum of total compensation ## **M.A.C.A.No. 805 of 2015(C)** ## **-: 9 :-** granted by the Tribunal will stand modified to the above extent. The remaining part of the impugned award would stand undisturbed. This Motor Accident Claims Appeal is allowed accordingly to the above extent. Sd/- **K. HARILAL** **JUDGE** DST //True copy// P.A. To Judge