Sreedevi K. v. Muhammed Sameer Koya, Bijumon A., Bajan Allianz General Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 9[TH] DAY OF FEBRUARY 2022 / 20TH MAGHA, 1943** **MACA NO. 1271 OF 2011** **AGAINST THE AWARD DATED 16.07.2010 IN OPMV 316/2009 OF TEH PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/ PETITIONER:** SREEDEVI K, W/O SURESHAN, AGED 38, ACHUTHABHAVAN HOUSE, THODIYIL BEACH.P.O., CALICUT. BY ADVS. SRI.GEORGE KARITHANAM VARGHESE SRI.JOSE KURIAKOSE VILANGATTIL ## **RESPONDENTS/RESPONDENTS:** 1 MUHAMMED SAMEER KOYA S/O. MUHAMMED KOYA, KOKKOLITHAZHAM HOUSE,, ELATHUR, CALICUT(R.C.OWNER OF THE BUS BEARING, NO.KL-11/Q 2626) PIN-689643. 2 BIJUMON.A. S/O. ASSU.M.P. AGED 22 YEARS, "ARABI", THANGALS ROAD,, PARAPPIL,CALICUT NAGARAM AMSOM DESOM., (DRIVER OF KL-11/Q 2626). PIN-673001. 3 MS. BAJAN ALLIANZ GENERAL INSURANCE CO. M SONS ARCADE, CHEROTY ROAD, CALICUT-673001, (VALIDITY FROM 26-7-06 TO 25-7-07) BY ADV SRI.P.S.RAMU ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 09.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1271-2011 -:2:- ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.316/2009 on the file of the Principal Motor Accidents Claims Tribunal,Kozhikode. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to her in an accident on 15.09.2008. It was her case that, on the above said date, while she was crossing the Kannur road, a tempo traveller bearing registration No KL 11 AB 5255 driven by the second respondent in a rash and negligent manner, hit the appellant. The appellant suffered multiple injures and was treated as an inpatient at the Baby Memorial Hospital, Kozhikode for a period of 13 days. She suffered bimalleolar M.A.C.A.No.1271-2011 ## -:3:- fracture of the left ankle, bilatral superior and inferior public rami fracture and pain all over body. The tempo traveller was owned by the first respondent and insured with the third respondent. The appellant was a tailor by profession and was earning a monthly income of Rs.8000/-. Hence, the appellant claimed from the respondents a compensation of Rs.3,24,000/-, which claim was limited to Rs.2,00,000/- 3. The respondents 1 and 2 did not contest the proceeding and were set exparte. 4. The third respondent had filed a written statement admitting that the tempo traveller had a valid insurance coverage. However, the third respondent disputed the age, income and occupation of the appellant. 5. The appellant had produced and marked Exhibits A1 to A6 in evidence. The disability certificate issued by the Medical Board attached to the Medical M.A.C.A.No.1271-2011 -:4:- College Hospital, Calicut was marked as Exhibit C1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.95,517/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.Jose Kuriakose the learned counsel appearing for the appellant/petitioner and Sri.P.S Ramu, the learned counsel appearing for the third respondent/insurer. 9. The point that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 10. Exhibit A3 charge sheet filed by the City Traffic Police, Kozhikode in Crime No.2937/2008 M.A.C.A.No.1271-2011 ## -:5:- proves that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the tempo traveller. The respondents did not not let in any evidence to discredit Exhibit A3 charge sheet. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 11. The appellant had claimed that she was a tailor by profession and earning a monthly income of Rs.8000/-. For want of material, the Tribunal fixed the monthly income of the appellant on notional basis at Rs.2500/-. 12. In **Ramachandrappa v. Manager, Royal** **Sundaram Alliance Insurance Company Limited** M.A.C.A.No.1271-2011 -:6:- [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2008, I re-fix the notional monthly income of the appellant at Rs.6500/- . ## **Loss of earnings** 14. It is proved by Exhibit A2 wound certificate and Exhibit C1 Medical report, that the appellant had suffered a bimalleolar fracture of the left ankle and bilatral superior and inferior public rami fracture. She was treated as an inpatient for a period of 13 days. In the above circumstances, I hold that she was incapacitated for a period of five months. 15. In view of the re-fixation of the notional monthly income of the appellant at Rs.6500/-, I award her an amount of Rs.32,500/- towards ‘loss of M.A.C.A.No.1271-2011 ## -:7:- earnings’, instead of Rs.5000/- awarded by the Tribunal. ## **Disability** 16. The appellant was referred by the Tribunal to the Medical Board attached to the Medical College Hospital, Kozhikode. The Medical Board as per Exhibit C1 has found that the appellant has a permanent disability of 8% due to the restricted movements of her ankle. I confirm the above assessment made by the Medical Board and fix the functional disability of the appellant at 8%. ## **Multiplier** 17. The appellant was aged 38 years at the time of the accident. In the light of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘15’. M.A.C.A.No.1271-2011 -:8:- ## **Loss due to disability** 18. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.6500/-, her functional disability at 8% and the multiplier at 15, I award her an amount of Rs.93,600/- towards ‘loss due to disability’, instead of Rs.36,000/- awarded by the Tribunal. ## **- By stander expenses and extra nourishment** 19. The Tribunal has awarded the appellant an amount of Rs.1300/- under the head by-stander expenses and Rs.500/- under the head ‘extra nourishment’, which according to me, is too meager. 20. On a consideration of the fact that the appellant was treated as an inpatient for a period of 13 days and the accident occurred in the year 2008, I award her an amount of Rs.400/- per day for a period of 13 days towards ‘by-stander expenses’, which works out to Rs.5200/- and an M.A.C.A.No.1271-2011 ## -:9:- amount of Rs.200/- per day for a period of 13 days towards ‘extra nourishment’ which works out Rs. 2600/-. ## **Pain and sufferings and loss of amenities** 21. The Tribunal has awarded only an amount of Rs.10,000/- under the head ‘pain and sufferings.’ 22. Taking into account the fact that the appellant was indisposed for a period of five months, that she was treated as an inpatient for a period of 13 days, and that she has suffered a functional disability of 8%, I award her a further amount of Rs.20,000/- under the head ‘pain and sufferings’ and an amount of Rs.20,000/- under the head ‘loss of amenities’. 23. With respect to the other heads of compensation, I find the same to be reasonable and just compensation. 24. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the M.A.C.A.No.1271-2011 -:10:- afore-cited decisions, I hold that the appellant/petitioner is entitled to enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount awarded<br>by the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---| |1|Loss of earnings|5000|32500| |2|Transport|350|350| |3|Bystander expense|1300|5200| |4|Extra nourishment|500|2600| |5|Medical expenses|42367|42367| |6|Pain and sufferings|10000|30000| |7|Loss of amenities|0|20000| |8|Loss<br>due<br>to<br>disability|36000|93600| ||**Total**|**95517**|**226617**| In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.1,31,100/- with interest at the rate of 6% per annum from the date of petition till the date of deposit, and a cost of Rs.10000/-. The third respondent is ordered to deposit M.A.C.A.No.1271-2011 ## -:11:- the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant, after deducting her liability towards court fee, and in accordance with law. Sd/- ## **C.S.DIAS,JUDGE** rmm/07.02.2022