SUSEELA @ KARTHYAYANI W/O. UTHAMAN v. GOPAK THAKUR, M. MURUKAN, The Oriental Insurance Company Limited, The President Mukundapuram Taluk Auto Co-Operative Society, Biju S/O. Rappai, The New India Assurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944** ## **MACA NO. 1903 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 2660/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,** ## **THRISSUR** ## **APPELLANT/PETITIONER:** **SUSEELA @ KARTHYAYANI W/O. UTHAMAN, RESIDING AT KANDENGATTU HOUSE, 'RAMYA', T.C 37/1150, AISWARYA NAGAR, WEST FORT, THRISSUR DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.K.A.ANAS SRI.P.S.APPU SRI.A.R.NIMOD** ## **RESPONDENTS/RESPONDENTS:** **1 GOPAK THAKUR S/O. MANGANDEN THAKUR, RESIDING AT NO.26, SHANTHI APARTMENTS, SHANTHI ROAD, SANTHI NAGAR, BANGALORE - 27. 2 M. MURUKAN S/O. MUTHU, RESIDING AT PERIYAR NAGAR, DOOR NO. 228, AROOR.P.O, DHARMAPURI DISTRICT, TAMIL NADU. 3 THE ORIENTAL INSURANCE COMPANY LIMITED BRANCH, BANGALORE - 18. 4 THE PRESIDENT MUKUNDAPURAM TALUK AUTO CO-OPERATIVE SOCIETY, IRINJALAKUDA, THRISSUR - 680 121. 5 BIJU S/O. RAPPAI, RESIDING AT PINDIYAN HOUSE, MUPLIYAM.P.O, VELLARPADAM, THRISSUR - 680 312. 6 THE NEW INDIA ASSURANCE COMPANY LIMITED IRINJALAKUDA BRANCH OFFICE, THRISSUR - 680 121. BY ADVS. A.C.DEVY RAJESH CHAKYAT A.SREEKALA** ## **OTHER PRESENT:** ## **SMT A.SREEKALA-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1903/2012 2 ## **JUDGMENT** Appellant is the claimant in O.P.(M.V.)No.2660/2004 on the file of Motor Accidents Claims Tribunal, Thrissur, which was tried along with O.P.(M.V)No.3069/2004 and a common Award was passed. O.P.(M.V.)No.2660/2004 has been filed under Section 166 of the Motor Vehicle Act, 1988 (in short, the Act) claiming compensation of Rs.2,45,000/- for the injury sustained by the claimant in a motor accident occurred on 05.09.2004 while travelling in an autorickshaw bearing Reg.No.KL-8W-750 by hit with a bus bearing Reg.No.KA-01/C7200 near Holy Cross Hospital in Amballur – Pudukkad National Highway. 2. It is alleged that the accident happened due to the rash and negligent driving of the second respondent, driver of the bus. First respondent is the owner of the offending vehicle and third respondent is the insurer. MACA No.1903/2012 3 3. Before the Tribunal first and second respondents remained ex parte. Third respondent insurer filed written statement admitting the policy coverage with respect to the offending vehicle. The rashness and negligence on the part of the second respondent is denied. It is also contended that the accident happened due to the rash and negligent driving of the autorickshaw by the 5[th] respondent/claimant in OP(M.V)No.3069/2004. Hence they are not liable to compensate the appellant. 4. The 6[th] respondent insurer of the autorickshaw contended that the accident happened due to the rash and negligent driving of the second respondent, driver of the bus, and hence they are not liable for the claim. 5. Respondents 4 and 5 are the R.C. owner and driver respectively of the autorickshaw bearing Reg.No.KL-8W-750 in which the appellant/claimant was travelling. 6. Ext.A1 to A8 marked in this claim and Exts.A9 to 15 were marked with respect to the claimant in O.P. MACA No.1903/2012 4 (M.V.)No.3069/2004. Ext.B1 copy of the policy has also been produced. PW1 the Medical Officer has also been examined from the side of the appellant herein. 7. Tribunal on evaluating the evidence as well as the facts and circumstances found that the second respondent is responsible for the accident and first respondent, the owner, was held vicariously liable and third respondent, insurer, is held liable to indemnify the first respondent, insured. A total compensation of Rs.1,58,400/- was awarded. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, appellant approaches this Court for the various grounds stated in the memorandum of appeal. 9. Notice as against respondents 1 & 2 has been dispensed with at the risk of the appellant. Service of notice on 5[th] respondent is also dispensed with at the risk of the appellant. Third respondent appeared through learned Standing Counsel Smt. A. Sreekala. 10. Heard the learned counsel for the appellant as well MACA No.1903/2012 5 as the learned counsel for the insurer. Lower court records were called for and perused. 11. According to the learned counsel for the appellant, the appellant is a homemaker and a monthly income of Rs.4,500/- was claimed. But the Tribunal taken the monthly income as Rs.3,000/-, which, according to him, is very low. He would also contend that though PW1, Medical Officer issued a disability certificate assessing 20% permanent whole body disability, the Tribunal arbitrarily taken the disability at 15%, which according to him is unjust and illegal and hence he seeks for enhancement of compensation on all heads. 12. It is true that claimant did not produce any document as such to prove the monthly income. Admittedly she is a housewife. In Sobhag Mal Jain v. State of Rajasthan & Ors. [AIR 2006 Raj. 66] monthly income of a housewife is notionally fixed as Rs.3,000/- in an incident occurred on 08.08.1984. So also, in Lata Wadhwa & Ors. v. State of Bihar & Ors. [AIR 2001 SC 3218] a three-Judge Bench of the Apex Court taken the monthly income of a housewife as Rs.3,000/- MACA No.1903/2012 6 per month while fixing compensation to victims who lost life and sustained injury in connection with the 150[th] birth anniversary of Sri.Jamshedji Tata on 03.03.1989 in Jamshedpur. In the present case the accident was in the year 2004. 13. In view of the principles laid down afore, the amount of Rs.4,500/- claimed as monthly income can very well be accepted. Accordingly, the monthly income of the claimant is taken as Rs.4,500/-. 14. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021 ] the Apex Court has dealt with the general principles relating to compensation in injury cases. Damages have been classified under the heads pecuniary damages (special damages) and non-pecuniary damages (general damages) in cases of personal injury matters. In case of routine personal injury cases, compensation will be awarded towards expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure and loss of MACA No.1903/2012 7 earning during the period of treatment as well as for damages for pain and suffering and trauma as a consequence of the injury. Only in serious cases of injury where there is medical evidence proving disability certificate corroborating the evidence of claimant compensation will be granted for loss of future earnings on account of permanent disability, future medical expense, loss of amenities and loss of expectation of life etc. 15. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. It is also held that a person is not only to be compensated for the physical injury, but also for the loss which injured has suffered as a result of such injury. 16. In personal injury cases, heads under which the compensation is awarded has been classified into two as MACA No.1903/2012 8 pecuniary damages (Special damages) and non pecuniary damages (general damages). 17. In paragraph No.5 of the above judgment, the heads coming under pecuniary damages and non pecuniary damages have been discussed. In cases of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earning (and other gains) which the injured would have made had he not been injured, comprising : - Loss of future earnings on account of permanent disability, Future medical expenses, Loss of amenities (and/or loss of prospects of marriage) and Loss of expectation of life (shortening of normal longevity). The assessment of non pecuniary damages under the damages for pain, suffering and trauma, loss of amenities and loss of expectation of life involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. MACA No.1903/2012 9 18. The claimant in this case sustained fracture right sided tibia, fracture right sided fibula, fracture right sided patella, wiring patellectomy were done. She had undergone inpatient treatment for 16 days. PW1, who issued disability certificate - Ext.A8, certified permanent whole body disability at 20% as per Mc Bride scale. The claimant was admitted and surgical reduction under spinal anaesthesia was done with wiring and patellectomy on 05.09.2004. Before the Tribunal PW1 was cross examined at length, but his evidence could not be discredited. However the Tribunal reduced the disability to 15%. 19. As per Rajkumar, if at all the Tribunal is not satisfied with the medical evidence adduced by the claimant he ought to refer the claimant to a Medical Board to ascertain the genuineness of the evidence adduced. Without adopting such course reduction of percentage of disability to 15% is seems to be illegal, improper and unsustainable. Hence permanent disability is taken as 20% in view of the gravity of the injuries and procedures of treatment undergone by her. MACA No.1903/2012 10 20. Appellant sustained three fractures. She is a housewife. Taking into account the nature of the injuries, loss of earning for three months taken by the Tribunal is seems to be low. Hence taking into account the facts and circumstances and especially the nature of injuries and the disability assessed by the doctor, I am of the view that loss of earning for 4 months can be taken. Hence towards loss of earning appellant is entitled to get Rs.18,000/- [4500x4]. Deducting the amount already awarded, the balance would be Rs.9,000/[18,000-9,000]. 21. Towards extra nourishment, no amount is seen awarded. So an an amount of Rs.1,000/ - is awarded towards extra nourishment. Rs.500/- is awarded towards damage to clothing. 22. Learned counsel would further contend that amount awarded towards pain and suffering is less. Appellant sustained three fractures. Ext.A6 discharge summary summary would show that she had undergone surgical reduction under spinal anaesthesia with wiring and MACA No.1903/2012 11 patellectomy and a review after two weeks has also advised in the discharge summary. So in view of the nature of injuries and procedures of treatment undergone by the claimant Rs.25,000/- is awarded towards pain and suffering. Deducting - the amount already awarded, the balance would be Rs.5,000/ [25,000-20,000]. 23. Appellant was 54 years old at the time of accident. The monthly income has already been fixed as Rs.4,500/-. As per Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)] as approved by National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] the suitable multiplier would be '11'. So compensation towards permanent disability is assessed as Rs.1,18,800/- [4,500x12x11x20/100]. Deducting the amount already awarded, compensation towards permanent disability is Rs.58,600/- [1,18,000– 59,400]. 24. In the result, the appellant/claimant is allowed to realise enhanced compensation of Rs.74,100/[9,000+1,000+500+5,000+58,600] (Rupees seventy four MACA No.1903/2012 12 thousand one hundred only), which will carry interest at the rate of 6% per annum from the date of petition till realisation (excluding the period of 25 days delay caused in filing the appeal). The third respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment, after deducting the amount due from the appellant towards balance Court Fee. Appellant shall provide her Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs. **Sd/-** **M.R.ANITHA** **JUDGE** shg