Susheela v. Suju s/o Kumaran; Sudhakaran Pillai s/o Raghavan Pillai; The Manager, National Insurance Co. Ltd. (MACA No. 612 of 2017)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` THURSDAY, THE 11 [ TH ] DAY OF APRIL 2024 / 22ND CHAITHRA, 1946 ``` ## **`MACA NO. 612 OF 2017`** ``` [AGAINST THE AWARD DATED 25/5/2015 IN OP(MV) NO.1983/2012 PASSED BY THE MACT, KOLLAM] ``` ``` APPELLANT/PETITIONER: ``` ``` SUSHEELA AGED 56 YEARS D/O. LEKSHMIKUTTY, LAKSHAM VEEDU COLONY,HOUSE NO. 7, KILIKOLLOOR, KOLLAM. ``` - **`BY ADVS. SRI.C.P.ANIL RAJ SRI.C.RAJENDRAN SMT.SREEVIDYA R.S`** ## **`RESPONDENTS/RESPONDENTS:`** - **`1 SUJU S/O. KUMARAN, KAZHAKKOOTTATHU PADINJATTATHIL, KUREEPUZHA CHERRY, KAVANAD P.O, KOLLAM - 3, PIN - 691003.`** - **`2 SUDHAKARAN PILLAI S/O. RAGHAVAN PILLAI, LEKSHMI BHAVAN, K.R.N. NAGAR 21,PIRAVOOR KIZHAKKATHIL, SAKTHIKULANGARA P.O,KOLLAM - 691581`** - **`3 THE MANAGER NATIONAL INSURANCE CO.LTD,PARAMESWARA PILLAI BHAVAN, HOSPITAL ROAD,KOLLAM BRANCH - 691 001.`** ``` BY ADV SMT.P.A.REZIYA-R3 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 612 OF 2017 ``` ``` 2 ``` ## **J U D G M E N T** ``` The appellant herein is the claimant in OP(MV) ``` ``` No.1983 of 2012 on the file of Motor Accidents Claims Tribunal, Kollam, challenging the award as the quantum of compensation is on the lower side. ``` ``` 2. On 17/10/2007 at 3.00 pm, the appellant was hit by KL-2 V 4272 motorcycle ridden by the 2nd respondent in a rash and negligent manner. She sustained serious injuries including compound fracture of left leg lower 1/3rd and her left leg was deformed. She was admitted and treated in the ``` ``` hospital for 15 days in total. She was working in a cashew factory earning monthly income of ``` ``` Rs.6,000/-. She approached the Tribunal claiming ``` ``` compensation of Rs.1,50,000/-, but the Tribunal awarded only Rs.37,333/-, and hence this appeal. ``` `3. The 1st respondent was the owner of the` ``` MACA NO. 612 OF 2017 ``` ``` 3 ``` ``` offending motorcycle, the 2nd respondent was its ``` ``` rider and the 3rd respondent its insurer. The 3rd ``` ``` respondent insurer contested the case, but ``` ``` admitted the policy. ``` `4. In the appeal, notice to respondents 1 and 2` ``` was dispensed with, since the 3rd respondent ``` ``` insurer entered appearance through counsel and admitted the policy. ``` `5. Heard learned counsel for the appellant and` ``` learned counsel for the 3rd respondent/insurer. ``` ``` 6. The appellant is challenging the award mainly ``` ``` on the ground that, learned Tribunal refused to accept her monthly income as Rs.6,000/- though PW2 the Manager of her employer was examined to prove ``` ``` her job and income. Exhibit A13 document was produced by PW2 to show that the appellant was working in a cashew factory drawing monthly income ``` ``` MACA NO. 612 OF 2017 ``` ``` 4 ``` ``` of Rs.6,000/-. ``` ``` 7. Learned counsel for the appellant would submit that, even without that document going by the decision Ramachandrappa v. Manager, Royal ``` ``` Sundaram Alliance Insurance Company Limited [AIR ``` ``` 2011 SC 2951] , she was eligible to get her notional income fixed @ Rs.6,000/-. Learned Tribunal did not award any amount under the head loss of earnings, finding that, since she was on ESI leave, she might have received salary during the period of leave. PW2 deposed before the Tribunal that, the appellant was on ESI leave from 17/10/2007 till 5/7/2009. But, no records were produced to show the period of leave or to show any loss of income during that period. Considering the nature of the ``` ``` injuries suffered by the appellant, and the period ``` ``` of hospitalization, this Court is inclined to take, a period of eight months for computing compensation ``` ``` MACA NO. 612 OF 2017 ``` ``` 5 ``` ``` for loss of earning. Even if she had received salary/wages during that period, she lost that leave only because of that accident. So considering the loss of leave, she can be ``` ``` compensated @ Rs.6,000/- per month for a period of 8 months. So she is entitled to get Rs.48,000/-. ``` ``` 8. Learned Tribunal found that, since she was employed till her superannuation, there was no loss of salary due to the disability if any suffered by her. But considering her functional disability after superannuation, 4% reduction in her earning capacity was taken into account by the Tribunal and an amount of Rs.6,720/- was awarded. In the year 2007, the age of superannuation was 55. So the multiplier applicable was 11. Taking her monthly ``` ``` income as Rs.6,000/- compensation for loss of ``` ``` earning capacity due to 4% functional disability could be assessed as Rs.31,680/- (6,000x12x11x4%). ``` ``` MACA NO. 612 OF 2017 ``` ``` 6 ``` ``` After deducting Rs.6,720/- already awarded, she is entitled to get the balance amount of Rs.24,960/-. ``` `9. Towards loss of amenities, the Tribunal` ``` awarded only Rs.2,240/-. she was a 52 year old lady at the time of accident, and she suffered compound fracture of left leg lower 1/3rd and her left leg was deformed also. Considering that aspect, this Court is inclined to award Rs.10,000/-, more towards loss of amenities. ``` `10. Towards bystander expenses, the Tribunal` ``` awarded only Rs.1,500/-, though the appellant was hospitalised for 15 days. Since she suffered compound fracture of left leg with deformity, even after discharge, she might have been under attention of a bystander, considering that aspect this Court is inclined to award Rs.1,000/- more, towards bystander expenses. ``` ``` MACA NO. 612 OF 2017 ``` ``` 7 ``` ``` 11. The compensation awarded under all other heads seems to be reasonable, and hence it needs no modification. ``` ## `12. The enhanced compensation awarded in this` ``` appeal is stated in the table below:- ``` |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Difference to be<br>drawn as enhanced<br>compensation| |---|---|---|---| |Loss of earning|-|48,000/-<br>[6,000x8]|48,000/-| |Compensation<br>for loss of<br>earning power|6,720/-|31,680/-<br>[6,000x12x11x<br>4%]|24,960/-| |Loss of<br>amenities|2,240/-|12,240/-|10,000/-| |Bystander<br>expenses|1,500/-|2,500/-|1,000/-| |TOTAL 83,960/-|||| ``` 13. So the appellant is entitled to get enhanced compensation of Rs.83,960/- ``` ``` MACA NO. 612 OF 2017 ``` ``` 8 ``` ``` [48,000+24,960+10,000+1,000] as enhanced ``` ``` compensation. ``` ``` 14. The 3rd respondent/insurer is directed to deposit the enhanced compensation with interest @ ``` ``` 9% per annum, from the date of petition till the date of deposit (excluding 512 days of delay in filing the appeal) before the Motor Accidents Claim ``` ``` Tribunal concerned within a period of two months ``` ``` from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that ``` ``` amount to the appellant, after deducting the ``` ``` liabilities, if any, towards Tax, balance court fee and legal benefit fund. ``` ``` The appeal is allowed to the extent as above, ``` ``` and no order is made as to costs. ``` ``` Sd/- ``` ``` SOPHY THOMAS, JUDGE ``` ``` ska ```