Sri Linet @ Sally Kutty v. Balagopal A. and Muhammed Fiazal P. and National Insurance Company Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945 ``` ## **`MACA NO. 2328 OF 2013`** ``` AGAINST THE AWARD DATED 05.04.2013 IN OP(MV) 63/2012 OF PRINCIPAL ``` ``` MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE ``` ## **`APPELLANT/PETITIONER:`** ``` SR.LINET @ SALLY KUTTY AGED 35 YEARS D/O. VARGHESE, PRESENTATION CONVENT, CHEVAYUR.P.O., KOZHIKKODE. ``` ``` BY ADV SRI.AVM.SALAHUDIN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` *1BALAGOPAL A. AGED 43 YEARS S/O. RAMAN NAIR, EDAVANNA(H), KUNNAMANGALAM.P.O., KOZHIKODE-673571. * (DELETED) * THE FIRST RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 18/11/2021 IN I.A 1/2021 IN MACA 2328/2013. 2MUHAMMED FIAZAL.P. AGED ABOUT 36 YEARS FATHER’S NAME NOT KNOWN PUTHIYOTTIL (H), BALUSSERY.P.O., KOZHIKODE-673612. 3NATIONAL INSURANCE COMPANY LTD. DIV. NO. 10, FLAT NO. 101-106, N-1, BHC HOUSE, CONNAUGHT PLACE, NEW DELHI-110001. ``` ``` BY ADVS. SRI.JACOB ABRAHAM SRI.E.M.JOSEPH E.M.JOSEPH JACOB ABRAHAM ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2328 OF 2013 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant was the petitioner in O.P.(M.V.) No.63/2012 on the files of Principal Motor Accident Claims Tribunal, Kozhikode. The said claim petition was submitted by her seeking compensation for the injuries sustained to her in a motor accident that occurred on 27.01.2009. According to her, the accident occurred when she was knocked down by a car driven by the 1st respondent, thereby causing serious injuries. The said vehicle was owned by the 2nd respondent and was insured with the 3rd respondent. According to her, she was working as a nurse in Italy and was 34 years old at the time of the accident. She claimed an amount of Rs.97,500/- as the monthly income. The claim petition was submitted in such circumstances. 2. The 1st respondent filed a written statement disputing negligence on his part. The quantum of compensation was also disputed by them. It was also contended that the vehicle was having valid insurance policy issued by the 3rd respondent. The 3rd respondent filed a written statement admitting the policy but, denying the liability. It was contended that the amount claimed by ``` MACA NO. 2328 OF 2013 ``` ``` 3 ``` the appellant was exorbitant. 3. The evidence in this case consists of Exts.A1 to A8 and no evidence was adduced by the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence of the 1st respondent, and being the insurer, the 3rd respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.1,69,432/- and the said amount was directed to be deposited by the 3rd respondent with interest @ 8% per annum from the date of petition till deposit. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation. 4. Heard Sri.A.V.M. Salahuddeen, learned counsel appearing for the appellant and Sri.E.M. Joseph, learned counsel appearing for the 3rd respondent. 5. The main challenge in this appeal pertains to the quantum of compensation awarded by the Tribunal. The learned counsel for the appellant points out that a meagre amount was awarded under various heads. On the other hand, the learned ``` MACA NO. 2328 OF 2013 ``` ``` 4 ``` counsel appearing for the 3rd respondent would contend that the appellant was a Nun attached to a Congregation and, therefore, they cannot have any income of their own. Therefore, the compensation, which is calculated on the basis of the criteria to be made applicable to the other persons, cannot be applied in this case. However, the crucial aspect to be noticed is that, such a contention is not seen raised by the 3rd respondent in the written statement filed before the Tribunal. In the absence of any such pleadings, the said contention cannot be raised in an appeal. This is particularly because the Tribunal has already assessed the compensation, taking note of the monthly income determined by the Tribunal, and the same is not under challenge in this appeal. Therefore, I do not find it proper to consider the said contention at this stage. 6. When moving on to the other aspects, it is to be noted that the Tribunal awarded compensation for disability by taking the monthly income of the appellant as Rs.5,000/-. It is to be noted that even though she claimed that she was receiving an amount of Rs.97,500/- as monthly income from her avocation as a nurse in ``` MACA NO. 2328 OF 2013 ``` ``` 5 ``` Italy, absolutely no documents were seen produced before the court. The records of bank transactions through which the transfer of the amounts was effected, or any other documents indicating her employment in Italy or the income she used to get from the same, are not produced. Therefore, I am unable to accept the contention raised by the appellant in this regard. However, even if that be so, considering the fact that the accident occurred in the year 2009, the monthly income of Rs.5,000/- appears to be on the lower side. When the monthly income is calculated on the basis of the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236] and Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735]** , the amount to be fixed as monthly income for the year 2009 cannot be lesser than Rs.7,000/-. Therefore, in the absence of any evidence, the said amount is fixed as the monthly income. 7. The next aspect relates to the percentage of disability. The appellant relied on Ext.A5 disability certificate issued by a Doctor wherein the percentage of disability certified was 24%.The ``` MACA NO. 2328 OF 2013 ``` ``` 6 ``` Tribunal did not accept the same mainly on the ground that the same was not properly proved by examining the Doctor and also that the said certificate does not contain the details which formed the basis of the assessment. Accordingly, the Tribunal fixed the percentage of disability as 5%. After carefully going through the records produced i.e. Ext.A2, A3, A5 and A6 it can be seen that, the appellant sustained the injuries such as fracture right humerus middle 3rd, fracture pelvis and multiple abrasions right hand, face and both feet. It is also discernible from Ext.A6 discharge summary that, she also suffered Pelvic APC type II injury (fracture superior and inferior pubic rami with symphysis diastasis). The said injuries have been specifically taken note of by the Doctor in the Ext.A5 disability certificate and the percentage of disability was therefore certified as 24%. However, even though I do not find any justification in accepting the percentage of disability as 24% as certified in Ext.A5 in the absence of any other evidence, from the nature of injuries, it appears that 5% disability as accepted by the Tribunal is on the lower side. The nature of injuries certainly would have resulted in a higher percentage of ``` MACA NO. 2328 OF 2013 ``` ``` 7 ``` disability, and hence, I deem it appropriate to fix it as 10%. The appellant was 34 years old at the time of the accident, and the multiplier applicable is 16. Thus, while reassessing the compensation with the above-revised criteria, the amount comes to Rs.1,34,400/- (7,000 x 12 x 16 x 10/100). The amount already awarded by the Tribunal is Rs.48,000/- and thus, the additional compensation comes to Rs.86,400/-. 8. Consequent to the revision of monthly income, the appellant would be entitled to additional compensation for loss of earnings. The Tribunal awarded compensation under this head for a period of three months and the said period appears to be reasonable. Therefore, a further sum of Rs.6,000/- is awarded under the said head. The next head to be considered is pain and suffering. It is evident from the records that the appellant underwent inpatient treatment for a period of 14 days consequent to the injuries. I have already discussed the nature of the injuries suffered by her in the earlier part of this judgment. Considering the nature of the injuries as referred to above, the period of inpatient treatment availed by her and also the treatment she availed even ``` MACA NO. 2328 OF 2013 ``` ``` 8 ``` after the discharge, I deem it appropriate to grant a further sum of Rs.10,000/- under the head of pain and suffering as the amount of Rs.20,000/- awarded by the Tribunal under this head appears to be on the lower side. Similarly, the amount awarded towards loss of amenities of life was only Rs.10,000/-. It is evident that she sustained serious injuries and it resulted in physical disabllty as well. The said injuries were suffered by her at the age of 34 years and the nature of injuries is such that, it will affect the quality of her life. Therefore, I deem it appropriate to grant a further sum of Rs.10,000/- under the said head as the amount of Rs.10,000/already awarded by the Tribunal appears to be on the lower side. Thus, the total additional compensation is determined as Rs.1,12,400/- (86,400 + 6,000 + 10,000 + 10,000). In the result, this appeal is allowed. The award dated 05.4.2013 passed by the Principal Motor Accident Claims Tribunal, Kozhikode in O.P.(M.V.) No.63/2012 is hereby modified by granting an additional compensation of Rs.1,12,400/- (Rupees one lakh twelve thousand and four hundred only) and the said amount shall be deposited by the 3rd respondent with interest at ``` MACA NO. 2328 OF 2013 ``` ``` 9 ``` the rate as ordered by the Tribunal and proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. It is further clarified that the claimant shall furnish the details of the PAN card, Aadhar Card and bank details to enable the Insurance Company 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, she fails 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`** scs