Suma v. Salam, Joy C.B. and United India Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` TUESDAY, THE 29[TH] DAY OF NOVEMBER 2022 / 8TH AGRAHAYANA, 1944 ``` ``` MACA NO. 2988 OF 2014 ``` ``` AGAINST THE AWARD DATED 10.10.2013 IN O.P(M.V) NO.440/2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM ``` ## **`APPELLANT/PETITIONER:`** ``` SUMA, AGED 39 YEARS W/O.SIVADASAN @ RAJAN, KUNDUTHODIYIL HOUSE, CHELAKKODU, VENGANELLUR VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV SRI.SHEJI P.ABRAHAM ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1SALAM, AGED 39 YEARS S/O. MOIDUNNY, KAPPLINGAL HOUSE, ADHOOR DESOM, EYYAL VILLAGE, THALAPPILLY TALUK, THRISSUR (DRIVER OF KL-23 D 8325 BUS). 2JOY C.B, AGE NOT KNOWN, S/O. DEVASSY, CHIRAYATH HOUSE, THOYAKKAVU, THRISSUR (OWNER OF KL-23 D 8325 BUS). 3UNITED INDIA INSURANCE COMPANY LIMITED ORISON SHOPPING COMPLEX, WADAKKANCHERY ROAD, KUNNAMKULAM, POLICY NO. 101202/31/08/00002152 VALID UPTO 15-6-2008 TO 14-6-2009. BY ADV R3 BY SRI.AGI JOSEPH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2988 OF 2014 ``` ``` 2 ``` ## **JUDGMENT** **Dated this the 29[th] day of November, 2022** This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Ottapalam (for short ‘the Tribunal’) on 10.10.2013 in O.P.(MV) No.440/2010. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondents 1 to 3 in accordance with their status in the above Original Petition. 2. The appellant is the petitioner in the above Original Petition filed before the Tribunal. She has been awarded with a sum of Rs.2,65,200/- as compensation and liability was fixed upon respondents 1 to 3 jointly and severally to indemnify the insured by depositing the compensation in favour of the petitioner. Aggrieved by the sum awarded as compensation, the petitioner has approached this Court in the appeal on hand. ``` MACA NO. 2988 OF 2014 ``` ``` 3 ``` 3. According to Sri.Sheji P. Abraham, the learned counsel for the petitioner, the petitioner was a house wife aged 35 years, earning Rs.3,500/- as monthly income. The motor accident was occurred in the year 2009. According to him, the Tribunal has fixed the monthly income as Rs.2,500/- notionally which is highly disproportionate to the cost of living and price index prevalent in the year 2009, when the motor accident was occurred. The learned counsel seeks for a modification and fixation of the monthly income having due regard to the above aspects. It is further contended by the learned counsel that under various other heads also the Tribunal has awarded inadequate sums as compensation and therefore, interference of this court is warranted. 4. According to him, the permanent disability of the petitioner was assessed as 11% by a Doctor and he was examined as PW2. The Tribunal was pleased to take 11% itself as the permanent disability but the compensation calculated falls inadequate, since the ``` MACA NO. 2988 OF 2014 ``` ``` 4 ``` calculation was based on Rs.2,500/- fixed as monthly income. According to him, the multiplier for the purpose of computation of compensation for disability was taken correctly by the Tribunal as 16. The learned counsel for the petitioner has pointed out that nonunion of fracture of neck of femur was reported and being permanently disabled on account of that, loss of future prospects for the petitioner also needs to be considered by this Court while assessing compensation under that head. 5. The learned counsel for the insurer, who was arrayed as the 3[rd] respondent in the Original Petition has contented that when evidence was totally lacking to establish the monthly income of the petitioner the Tribunal was constrained to fix Rs.2,500/- notionally as the monthly income. According to him, Rs.3,500/- was claimed by the petitioner in the Original Petition as her monthly income. The learned counsel contended that in that context, it is highly unreasonable to fix a higher sum as the monthly income. The learned counsel for the 3[rd] respondent has also pointed out that just ``` MACA NO. 2988 OF 2014 ``` ``` 5 ``` and reasonable sums stand awarded by the Tribunal under various heads, there is no scope for any interference with the impugned award. According to him, the Tribunal went wrong in awarding compensation under the heads, loss of earning power as well as continuing partial or permanent disability. It is contended by the learned counsel that the award of compensation under both heads as above is not maintainable in view of the dictum laid down by this Court in **O** _**riental Insurance Co.Ltd. v. Hariprasad**_ [2005 (4) KLT 977]. 6. The accident was occurred at 4.20 pm on 03.06.2009. The petitioner was travelling as pillion rider in a motorcycle bearing Registration No.KL-48A 2657 from Wadakkanchery to Mundathikode. A bus bearing Registration No.KL 13 D 8325 dashed against the motorcycle at Kuranchery, due to rash and negligent driving by its driver and thereby she sustained serious injuries. She was taken to Aswini Hospital, Thrissur and was treated as inpatient for some days. The Original Petition was filed ``` MACA NO. 2988 OF 2014 ``` ``` 6 ``` seeking for a total sum of Rs.6,50,000/- as compensation. It was alleged in the Original Petition that the driver of the bus was responsible for the accident by his rash and negligent driving. The driver, registered owner and the insurer of the bus were arrayed as respondents 1 to 3 in the Original Petition. 7. The first and second respondents were served with notice but they did not turn up to contest the Original Petition and accordingly were declared exparte. The third respondent has disputed all the claims raised by the petitioner in the Original Petition seeking compensation, but admitted insurance coverage for the bus as on date of accident. 8. The petitioner had adduced oral as well as documentary evidence before the Tribunal. She herself was examined as PW1 and Exts. A1 to A13 were marked in evidence. The Medical Practitioner who had examined the petitioner and issued a certificate assessing her disability as 11% was also examined as PW2. The respondents did not adduce any evidence. Based on the evidence on ``` MACA NO. 2988 OF 2014 ``` ``` 7 ``` record, the Tribunal found negligence on the part of the driver of the bus bearing Registration No.KL 13 D 8325, who was arrayed as first respondent in the Original Petition. The Tribunal also found that the petitioner had sustained serious injuries in the motor accident and arrived at Rs.2,65,200/- as the total compensation payable. It also directed the third respondent to pay interest at the rate of 9% per annum from the date of filing of the Original Petition till the date of realisation. 9. The Tribunal had fixed Rs.3,500/- as the monthly income of the petitioner on a notional basis. True that the petitioner had raised a claim in the Original Petition that she was a house wife and earning Rs.3,500/-. A housewife will do a lot of works in the household and those cannot be assessed in terms of money. Since the accident was occurred in the year 2009, considering the price index and the cost of living, this Court is inclined to re-fix the monthly income as Rs.7,000/- on a notional basis. This Court is also inclined to take 12 months’ period for assessing compensation ``` MACA NO. 2988 OF 2014 ``` ``` 8 ``` for loss of earning. When assessed with the modified monthly income and the period, Rs.84,000/-(Rs.7,000/- x 12) is arrived at. Rs.15,000/- stands awarded by the Tribunal when adjusted against, the petitioner will get Rs.69,000/- as additional compensation. 10. The petitioner had sustained comminuted fracture of neck of femur at the level of lower 1/3rd of femur. She had also sustained penetrating injury on left knee. She had undergone the procedure of closed interlocking nailing, for comminuted fracture of lower 1/3rd of femur. Fracture neck femur was treated with fixation of Miss-A-Nail Technique using cancellous screws 6mm. For the injuries sustained to knee, Arthrotomy and repair were done. She was treated as inpatient for 61 days in three spells of hospitalization. The nailing was found damaged and therefore, she was forced to undergo surgeries for removal of nailing and for re-fixation. Petitioner must have suffered much pain and discomforts on account of the injuries and the treatment procedures undergone by her. Those aspects were overlooked by the Tribunal while arriving ``` MACA NO. 2988 OF 2014 ``` ``` 9 ``` at the compensation. Rs.25,000/- was awarded by the Tribunal. This Court is inclined to enhance it to Rs.50,000/-, so that the petitioner will get Rs.25,000/- as additional compensation. 11. The Tribunal failed to award any sum as compensation under the head loss of amenities and enjoyments in life and therefore, is unjustified. This Court finds Rs.40,000/- as a reasonable sum to be awarded under that head. Under the heads extra nourishment and bystander expenses, Rs.12,200/- each has been awarded by the Tribunal by taking Rs.200/- per day for 61 days. This Court is inclined to fix Rs.300/- per day for 61 days and when compensation is assessed on it’s basis Rs.18,300/- each is payable under those heads. Rs.12,200/- each stands awarded by the Tribunal when adjusted, Rs.6,100/- each will be payable as additional compensation under the respective heads. 12. As already stated, the petitioner had to travel to and fro, the hospital and her residence during three different spells of hospitalization as stated above. The Tribunal has awarded only ``` MACA NO. 2988 OF 2014 ``` ``` 10 ``` Rs.2,000/- under the head transportation expenses which being disproportionate to the period of treatment, this Court is inclined to grant Rs.8,000/-, in accordance with the claim of the petitioner herself. Therefore, the petitioner will get Rs.6,000/- as additional compensation. Rs.7,000/- was re-fixed by this Court as the monthly income. Since the fracture neck of femur stands ununited, the petitioner undoubtedly had sufferings on account of that. Therefore, this Court finds it appropriate to consider loss of future prospects also. 40% is found to be just and reasonable and that is considered. Petitioner was aged only 35 years and therefore, she has to pull on with the difficulties on account of the ununited fracture life long. When 40% of the monthly income is added to Rs.7,000/- fixed as notional income, Rs.9,800/- is arrived at. When a reassessment is made with the re-fixed monthly income, 16 as the multiplier and 11% as the disability, Rs.2,06,979/- is arrived at. It is already found that compensation cannot be awarded under the heads loss of earning power as well as permanent disability. A total sum of ``` MACA NO. 2988 OF 2014 ``` ``` 11 ``` Rs.1,00,800/- (Rs.48,000+52,800) is found awarded by the Tribunal under the above heads. Rs.2,06,979/- being arrived at now as the compensation payable under the head permanent disability, Rs.1,00,800/- stands awarded by the Tribunal has to be adjusted. Therefore, the petitioner will get Rs.1,06,176/- as additional compensation. Under the head damages to clothing Rs.500/- being the sum stands awarded by the Tribunal, this Court is inclined to grant Rs.500/- more. In the above reassessment, the petitioner will get a total sum of Rs.2,58,876/- (Rupees Two lakhs fifty eight thousand eight hundred and seventy six only) as additional compensation. It will carry interest @ 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The appeal was filed late by 315 days and therefore, the third respondent was exonerated from paying interest for the period by order passed by this Court on 12.01.2022 in C.M.A.No.1 of 2014. The third respondent shall pay the additional compensation now arrived at with interest fixed for it ``` MACA NO. 2988 OF 2014 ``` ``` 12 ``` within two months from the date of receipt by it of a certified copy of this judgment. MACA stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** **SMA**