Sushamma C.R. v. Rajeev George, Cleetus, Oriental Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 21[ST] DAY OF JANUARY 2022 / 1ST MAGHA, 1943** **MACA NO. 2408 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 1050/2009 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL,KOTTAYAM** ## **APPELLANT/PETITIONER:** SUSHAMMA.C.R. AGED 42 YEARS W/O.RAJEEV, CHANDRAKANTHAM HOUSE, PALLOM (PO), KOTTAYAM BY ADVS. SRI.M.V.THAMBAN SRI.B.BIPIN SRI.R.REJI SMT.THARA THAMBAN ## **RESPONDENTS/RESPONDENTS 1 TO 3:** 1 RAJEEV GEORGE S/O.VARGHESE, CHITTEZHATHU BUNGALOW, PUTHENCAVU, ANGADICKAL, CHANGANNUR, PIN 689121. 2 CLEETUS S/O.XAVIER, AJAYABHAVAN, NEAR PUNCHAKKONAM JUNCTION, PUNCHAKONAM (PO) ALAYAMAN, PATHANAPURAM TALUK, KOLLAM DISTRICT, PIN 689695. 3 THE ORIENTAL INSURANCE CO.LTD. REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, KOTTAYAM . PIN 686001. BY ADVS. SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2408 OF 2012** **2** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.1050/2009 on the file of the Additional Motor Accidents Claims Tribunal, Kottayam. 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 06.5.2009. She has averred in the claim petition that, while she was travelling pillion on a motorcycle bearing Reg.No.KL-10N-4413, ridden by her husband from Chingavanam to Kottayam, on the abovesaid day, a Bus bearing Reg. No.KL-4T-4050 (bus), driven by the 2[nd] respondent in a rash and negligent manner, hit the motorcycle. The appellant sustained grievous injuries, including a compression fracture of D4 **MACA NO. 2408 OF 2012** **3** vertebrae with spinal cord compression with extensive cord contusion, dislocation of T4 over T5, fracture the neck of scapula(L), weakness of both lower limbs, hemothorax and consolidation of the right lung, contusion on the chest and a hemorrhage. She was treated as an inpatient for a period of 30 days at the Medical College Hospital, Kottayam and, thereafter, at the Lakeshore Hospital, Ernakulam. She is bedridden and has become a paraplegic. She was running a canteen at the Regional Power Centre, Pallom and was earning a monthly income of Rs.6,000/-. The bus was owned by the 1[st] respondent and insured with the 3[rd] respondent. Hence, the appellant claimed a compensation of Rs.18,24,500/- from the respondents. 3. The respondents 1 and 2 did not contest the proceeding and were set ex parte. 4. The 3[rd] respondent had filed a written statement refuting the allegations in the claim petition. It was ## **MACA NO. 2408 OF 2012** **4** contended that the accident occurred due to the negligence of the rider of the motorcycle - the husband of the appellant. However, the 3[rd] respondent admitted that the bus had a valid insurance coverage. The 3[rd] respondent had also stated that the compensation claimed was excessive. 5. A witness was examined on the side of the appellant as PW1 and Exts.A1 to A15 were marked in evidence. The disability certificate issued by the Medical Board, attached to the Government Medical College Hospital, Kottayam, was marked as Ext.X1. The respondents did not let in any evidence. 6. The Tribunal, after appreciating the pleadings and materials on record and after personally seeing the appellant, who was produced before the Tribunal in an ambulance on 6.7.2012, and finding that she was completely paralyzed, allowed the claim petition, in part, by permitting the appellant to recover from the 3[rd] **MACA NO. 2408 OF 2012** **5** respondent an amount of Rs.10,93,000/- with interest and costs. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.M.V.Thamban, the learned counsel appearing for the appellant/petitioner and Sri.P.Jacob Mathew, the learned counsel appearing for the 3rd respondent/insurer. 9. The point that emanates for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 10. Ext.A3 final report laid by the Chingavanam Police in Crime No.202/2009 as against the 2[nd] respondent, for offences punishable under Sections 279 and 338 of IPC, proves that the accident occurred due to the negligence of the 2[nd] respondent. Admittedly, the respondents have not let in any any evidence to ## **MACA NO. 2408 OF 2012** ## **6** discredit Ext.A3 final report. The 3[rd] respondent has also not proved that the 1st respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 11. The appellant has averred in the claim petition that she was running a Canteen at the Regional Power Centre, Pallom and was drawing a monthly income of Rs.6,000/-. For the want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.4,000/-. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. **MACA NO. 2408 OF 2012** **7** 13. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2009, I re-fix the notional monthly income of the appellant at Rs.6,000/-, as claimed in the claim petition. ## **Loss of earnings** 14. The Tribunal has found that, due to the severe injuries, the appellant has become paralyzed and she was indisposed for a period of twelve months. Accordingly, the Tribunal has awarded an amount of Rs.48,000/- towards 'loss of earnings'. 15. In view of the re-fixation of the notional monthly income of the appellant at Rs.6,000/-, I award the appellant an amount of Rs.72,000/- under the head ‘loss of earnings’, instead of Rs.48,000/- awarded by the Tribunal. **MACA NO. 2408 OF 2012** **8** ## **Disability** 16. Ext.A5 wound certificate and Exts.A7 and A8 discharge summaries prove that the appellant has become a paraplegic due to the compression fracture of D4 vertebrae with spinal cord compression with extensive cord contusion and dislocation of T4 over T5. As directed by the Tribunal, the appellant was referred to the Medical Board attached to the Medical College Hospital, Kottayam. The Medical Board, on the basis of the fractures sustained to the appellant to her D4 vertebra and the left scapula, has held that the appellant has become a paraplegic and fixed her permanent disability of 64%. 17. It is on record that the appellant was aged 39 years and was running a Canteen at the Regional Power Centre, Pallom. 18. In **Rajkumar v. Ajaykumar** [2011 (1) KLT 620 SC] , the Hon'ble Supreme Court has categorically held **MACA NO. 2408 OF 2012** ## **9** that what needs to be looked into in a injury claim, is the functional disability of the injured-claimant. 19. Going by the serious nature of the injuries sustained by the appellant as certified by the Medical Board and the fact that the appellant has become a paraplegic and she cannot any longer run the Canteen by herself, I re-fix her functional disability at 80%. ## **Future Prospects** 20. In **V.Mekala v. M.Malathi and another [** 2014 11 SCC 178] re-iterated in **Jagadeesh v. Mohanan & Others** [2018) 4 CC 571] and **Anthony @ Anthony Swamy v. Managing Director, KSRTC,** [(2020) SCC Online SC 493, ] the Hon’ble Supreme Court has held that, in the case of serious injuries, the injured - claimant is also entitled to future prospects. 21. As the appellant was aged 39 years at the time of the accident and she was self-employed, I award her 40% future prospects on the compensation for loss due **MACA NO. 2408 OF 2012** **10** to disability. ## **Multiplier** 22. The appellant was aged 39 years at the time of the accident. In the light of the law laid down in **Sarla Verma & Otrs Vs. Delhi Transport Corporation** [(2009) 6 SCC 121], the relevant multiplier to be adopted is '15'. ## **Loss due to Disability** 23. Taking into account the above-mentioned factors, namely, the monthly income of the appellant at Rs.6,000/-, her functional disability at 80% , future prospects at 40% and the multiplier at '15', I award the appellant an amount of Rs.12,09,600/- toward ‘loss due to disability’, instead of Rs.3,60,000/- awarded by the Tribunal. ## **- Bystander expenses and Extra nourishment** ## **expenses** 24. The Tribunal has found that the appellant **MACA NO. 2408 OF 2012** **11** needed the assistance of a bystander for a period of 11 months. Accordingly, the Tribunal has awarded an amount of Rs.11,500/- towards 'bystander expenses' and Rs.10,000/- towards 'extra-nourishment expenses' which is abysmally on the lower side. 25. Taking into account the fact that the appellant needed a bystander for one year, I award the appellant an amount of Rs.400/- per day for a period of 365 days towards ‘bystander expenses’ which works out to Rs.1,46,000/-, and an amount of Rs.250/- per day for a period of 365 days towards ‘extra-nourishment expenses’ which works out to Rs.91,250/- ## **Pain and sufferings and Loss of amenities** 26. The Tribunal has awarded an amount of Rs.30,000/- towards 'pain and sufferings' and an amount of Rs.1,50,000/- towards' loss of amenities'. 27. On a consideration of the serious injuries sustained by the appellant and taking into consideration **MACA NO. 2408 OF 2012** **12** her claim for Rs.50,000/- under the head 'pain and sufferings', I award her a further amount of Rs.20,000/under the said head. ## **Other heads of compensation** 28. With respect to the compensation awarded under the heads 'transportation expenses', 'damage to clothing', 'medical expenses', 'future bystander expenses' and 'future medical treatment', I find that the Tribunal has awarded reasonable and just compensation. However, I hold that the appellant would be dis-entitled for interest for the compensation awarded under the heads ‘future bystander expenses' and 'future medical treatment' ,i.e., for an amount of Rs.1,50,000/-. 29. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the aforecited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for **MACA NO. 2408 OF 2012** **13** ## easy reference. **==> picture [474 x 571] intentionally omitted <==** **----- Start of picture text -----**<br> SI Head of claim Amount awarded by Amounts<br>the Tribunal (in modified and<br>.No rupees) recalculated by<br>this Court<br>1 Loss of earnings 48,000 72,000<br>2. Transport to hospital 6,700 6,700<br>3. Extra-nourishment 10,000 91,250<br>3. Damage to clothing 500 500<br>3. Bystander expenses 11,500 1,46,000<br>4. Medical Expenses 3,25,978 3,25,978<br>5 Pain and sufferings 30,000 50,000<br>6. Loss of amenities 1,50,000 1,50,000<br>7. Future bystander 50,000 50,000<br>expenses<br>Future treatment 1,00,000 1,00,000<br>7. Loss due to disability 3,60,000 12,09,600<br>Total 10,92,678 22,02,028<br> rounded off to ========<br> Rs.10,93,000<br>===========<br>**----- End of picture text -----**<br> **MACA NO. 2408 OF 2012** **14** 30. Even though the appellant had only claimed an amount of Rs.18,24,500/- as compensation, I have awarded her more compensation than what is claimed in the claim petition, taking into account the serious injuries sustained by her and also awarded her future prospects,bystander expenses and extra- nourishment expenses following the principles in the afore-cited precedents. The said course is permissible in the light of the law laid down by the Hon’ble Supreme Court in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 SC] and **Rajesh v. Rajbir Singh** [2013 (3) KLT 89 SC]. In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.11,09,028/. Out of the said amount, only an amount of Rs.9,59,028/- shall carry interest at the rate of 7% per annum from the date of petition till the date of deposit. The 3[rd] respondent is directed to deposit an amount of **15** **MACA NO. 2408 OF 2012** Rs.11,09,028/ with interest as ordered above and proportionate cost on the total amount 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 Tribunal shall disburse the entire deposited amount to the appellant/petitioner, in accordance with law. ma/22.01.2022 Sd/- **C.S.DIAS, JUDGE**