Subaida Rub Rufiyath House v. National Insurance Co. Ltd. (Motor Third Party Claim Office) & Santosh

1 MACA 2611 OF 2009 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 30[TH] DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943 MACA NO. 2611 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 182/2003 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL , ERNAKULAM** ## **APPELLANT/S:** SUBAIDA RUB RUFI-YATH HOUSE, NEAR MUNICIPAL OFFICE, ALUVA REPRESENTED BY POWER OF ATTORNEY, AND HUSBAND ABDUL RUB, RESIDING AT DO. DO. BY ADV SRI.A.A.MOHAMMED NAZIR 1 E.A.FRANCIS, 15/959, EDAIZHATH HOUSE NAZARATH, KOCHI-682 002. 2 NATIONAL INSURANCE CO.LTD. MOTOR THIRD PARTY CLAIM OFFICE, AJAY VIHAR,, M.G.ROAD, ERNAKULAM. 3 SANTHOSH, S/O.PARAMESWARAN THAYANKERI HOUSE, KUNNATHUKADAVU,, PALLIPPURAM, CHERTHALA. BY ADV SMT.SARAH SALVY ## **RESPONDENT/S:** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA 2611 OF 2009 ## **C.S.DIAS, J.** ## **====================== MACA No.2611 of 2009** **====================== Dated this the 30[th] day of September, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.182/2003 on the file of the Motor Accidents Claims Tribunal, Ernakulam. 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 that she sustained in an accident on 16.9.2001. It was her case that, while she and her son were standing at the I.S Press Road, Ernakulam, an auto rickshaw bearing registration No.KL7/7J 9794, driven by the third respondent in a rash and negligent manner, came and hit them. The appellant and her son sustained injuries and were treated at the Medical Trust Hospital, Ernakulam. The appellant was treated as 3 MACA 2611 OF 2009 an inpatient for a period of 18 days. The first respondent was the owner and the second respondent was the insurer of the auto rickshaw. The appellant was a housewife and claimed a monthly income of Rs.1,500/-. She claimed a compensation of Rs.2,40,000/- from the respondents. 3. The appellant's son also filed OP(MV) 474/2003 before the same Tribunal on account of the injuries that he sustained in the accident. 4. The respondents 1 and 3 did not contest the proceedings and were set ex parte. 5. The second respondent had filed a written statement admitting that the auto rickshaw had a valid insurance coverage. However, the second respondent denied that the accident occurred due to the negligence of the driver of the auto rickshaw and disputed the income and avocation of the appellant. It was contended that the compensation claimed was excessive. 6. The Tribunal consolidated and jointly tried the 4 MACA 2611 OF 2009 two claim petitions. The Doctor who treated the appellant was examined as PW1 and Exts A1 to A11 were marked in evidence. The respondents did not let in any evidence. 7. The Tribunal, by its common award, allowed the captioned claim petition, by permitting the appellant to realise from the second respondent an amount of Rs.56,600/-, with interest at the rate of 7.5% per annum from the date of petition till the date of realization with proportionate costs. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Sri.A.A Mohammed Nazir, the learned counsel appearing for the appellant/petitioner and Smt.Sarah Salvy, the learned counsel appearing for the second respondent-insurer. 10. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 5 MACA 2611 OF 2009 ## **Negligence and liability** 11. Ext A3 charge-sheet filed by the City Traffic Police, Ernakulam in Crime No.2344/2001 substantiates that the accident occurred due to the negligence on the part of the third respondent. Admittedly, the first respondent was the owner and the second respondent was the insurer of the auto rickshaw. The second respondent admitted that the auto rickshaw had a valid insurance coverage and did not contend that the first respondent had violated the insurance policy conditions. Therefore, it is the second respondent who is to indemnify the liability of the first respondent arising out of the accident. ## **Notional Income** 12. The appellant had claimed that she was a housewife and having a monthly notional income of Rs.1,500/-. The Tribunal accepted the contention and fixed the monthly notional income of the appellant at Rs.1,500/-. 13. It was contended by the learned counsel 6 MACA 2611 OF 2009 appearing for the appellant that the fixation of the notional income of the appellant at Rs.1,500/-, going by the settled law by the Hon'ble Supreme Court is on the lower side. It is submitted that the Hon'ble Supreme Court in **Rajendra Singh v. National Insurance Co. Ltd [2020** **(4) KLT 6 (SC)]** has fixed the notional income of a housewife @ Rs.5,000/- per month. Similarly, in **Arun Kumar Agrawal v. National Insurance Co.Ltd [2010** **(4) KLT 230 (SC)]** the Hon'ble Supreme Court has held that the notional income of a housewife has to be fixed at one-third of the income of the earning spouse. The above legal proposition is reiterated by this Court in **Sijo Jose vs Rajindra Kumar Saini [2020 (4) KHC 743].** 14. Taking into account the aforecited decisions, and the fact that the accident occurred in the year 2001, I am of the considered opinion that the appellant's notional income can safely be fixed at Rs.3,000/- per month. 7 MACA 2611 OF 2009 ## **Loss of earnings** 15. In view of the refixation of the notional income of the appellant at Rs.3,000/- per month and the fact that she was indisposed for a period of three months, due to the injuries that she sustained in the accident, I hold that the appellant is entitled for loss of earnings at Rs.9,000/instead of Rs.4,500/- fixed by the Tribunal, i.e., an enhancement by Rs.4,500/-. ## **Pain and sufferings** 16. The appellant had claimed an amount of Rs.40,000/- as compensation for pain and sufferings. 17. It is proved by Exts A6, A7 and A8 that the appellant had suffered a head injury and facial nerve palsy. She was treated as inpatient for a period of 18 days and was indisposed for a period of three months. 18. Taking into account the above mentioned injuries sustained by the appellant, I hold that she is entitled to a further amount of Rs.10,000/- under the head 'pain and 8 MACA 2611 OF 2009 sufferings'. ## **Loss of amenities** 19. The appellant had claimed an amount of Rs.60,000/- towards loss of amenities. The Tribunal awarded only an amount of Rs.5,000/-. 20. Taking into account the injuries, the period of hospitalization and the period that the appellant was indisposed as observed under the head 'pain and sufferings', I award a further amount of Rs.10,000/- under the head 'loss of amenities'. ## **Other heads of claim** 21. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.24,500/- , i.e., Rs.4,500/- towards loss of earnings, Rs.10,000/- each towards compensation for loss of amenities and pain and 9 MACA 2611 OF 2009 sufferings. The second respondent is ordered to deposit the enhanced compensation of Rs.24,500/- with interest @ 7.5% per annum from the date of petition till the date of deposit and a cost of Rs.3,000/-. The Tribunal shall disburse the enhanced compensation to the appellant, in accordance with law. sd/- sks/30.9.2021 **C.S.DIAS, JUDGE**