Swapna v. M.N.Suresh and others

MACA NO. 2781 OF 2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 16[TH] DAY OF MARCH 2022 / 25TH PHALGUNA, 1943** **MACA NO. 2781 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1722/2004 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL MUVATTUPUZHA** ## **APPELLANT/S:** SWAPNA, D/O.MANI, AGED 28 YEARS, THOTTUNGAL HOUSE, PUTHENCRUZ P.O, ERNAKULAM. BY ADVS. SRI.M.K.DILEEPAN SMT.P.SUMITHRA ## **RESPONDENT/S:** 1 M.N.SURESH, S/O.NEELAKANDAN PILLAI, PRANAVAM VALANIKKATTU, MUNDAKKAL SOUTH MARADY,, MUVATTUPUZHA. 2 THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD, CONNAUGHT PLACE, NEW DELHI, (3RD PARTY CELL, REGIONAL OFFICER, COCHIN). 3 SYAM S/O.KUNJAPPAN THACHAKKOTHIL PARIYARAM, MEEMPARA P.O., PUTHENCRUZ,, ERNAKULAM. 4 P.T.HARIDAS S/O.THANKAPPAN PARAPPURATH, PANCODE P.O.,, PUTHENCRUZ, ERNAKULAM. 5 THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD., KOLENCHERY, ERNAKULAM. BY ADVS. LATHA SUSAN CHERIAN SRI.GEORGE CHERIAN THIRUVALLA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2781 OF 2009 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1722/2004 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. 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 01.08.2004. It was her case that, on the above said date, while she was traveling in an autorikshaw bearing registration No.KL-7AH 2648 through the KochiMadhurai National a maruti car Highway, bearing registration No.KL-17 A 5311 (car), came from the opposite direction and hit the autorikshaw. The appellant sustained multiple injuries and was treated as an inpatient at the Medical College Hospital, Kolencheri from 01.08.2004 to 25.08.2004. The appellant was a Post Graduate student in Microbiology. The car was owned and driven by the 1[st] respondent and was insured with the 2[nd] MACA NO. 2781 OF 2009 3 respondent. The respondents 3 to 5 were the driver, owner and insurer of the autorikshaw. Hence, the appellant claimed a compensation of Rs.5,40,000/- from the respondents, which claim was limited to Rs.2,50,000/-. 3. The other injured in the same accident had also filed OP(MV) Nos.1623/2004, 1645/2004, 1676/2004, 1724/2004 and 1740/2004 before the same Tribunal, against the respondents, seeking compensation. 4. The respondents 1, 3 and 4 did not contest the proceeding. 5. The respondents 2 and 5 – the insurers of the two vehicles contested all the claim petitions by filing separate written statements. They contended that the accident occurred due to the negligence of the opposite drivers. The 2[nd] respondent also disputed the age, income and occupation of the all the petitioners. 6. The Tribunal consolidated and jointly tried all the claim petitions. 7. Two witnesses were examined on the side of the MACA NO. 2781 OF 2009 4 petitioners as PWs 1 and 2 and Exts.A1 to A30 were marked in evidence. The respondents did not let in any evidence. 8. The Tribunal, after analysing the pleadings and materials on record, allowed the captioned claim petition in part, by permitting the appellant to recover from the 2[nd] respondent an amount of Rs.1,94,650/- with interest. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri. T.C. Thomas, the learned counsel appearing for the appellant/petitioner and Smt. Latha Susan Cherian, the learned counsel appearing for the respondents 2 and 5. 11. The point that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and Liability** 12. Ext.A4 final report filed by the Puthencruz Police in Crime No.267/2004 proves that the accident occurred 5 MACA NO. 2781 OF 2009 due to the negligence of the 1[st] respondent. Indisputably, the 2[nd] respondent was the insurer of the car. The respondents have not let in any evidence to discredit Ext.A4 final report. The 2[nd] respondent has also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 2[nd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 13. The appellant had claimed that she was a Post Graduate Micro Biology student in the M.A.College, Kothamangalam. To prove the said aspect she had produced Ext.A24 certificate, wherein it has been stated that the appellant had lost 1½ years due to the accident. The Tribunal fixed the notional monthly income of the appellant at Rs.3,000/-. 14. In : **Mekala vs. M. Malathy and another** [(2014) 11 SCC 178], the Honourable Supreme Court has fixed the notional monthly income of a 11[th] Standard MACA NO. 2781 OF 2009 6 student at Rs.10,000/-, for an accident that occurred on 11.04.2005. 15. In the case at hand, undisputedly as per Ext.A24 certificate, it is proved that the appellant was a M.Sc. Microbiology student during 2002-2004. Admittedly, the accident occurred on 01.08.2004. Therefore, I do not find any reason to take a different yardstick than what is laid down in **Mekala** (supra). On a consideration of the fact that **Mekala** was only a 11[th] Standard student, but the appellant was a Post Graduate student in Microbiology, I fix her notional monthly income at Rs.10,000/-. ## **Disability** 16. The appellant was examined by a three member Medical Board. The Medical Board as per Ext.A23 found that the appellant has 5 centimeters shortening of her right thigh, her right hip movements are restricted and she has planter flexion of both ankles. In the above circumstances, the Medical Board has fixed the permanent disability of the appellant at 20%. The Tribunal accepted 7 MACA NO. 2781 OF 2009 the assessment made by the Medical Board and fixed the functional disability of the appellant at 20%. I confirm the said finding. ## **Multiplier** 17. The appellant was aged 24 years at the time of the accident. In view of the law laid down in **Sarla Varma** **vs. Delhi Transport Corporation** : [2010 (2) KLT 802], the relevant multiplier to be adopted is “18”. ## **Loss of earning capacity** 18. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.10,000/-, her functional disability at 20% and the multiplier at '18', I award her an amount of Rs.4,32,000/under the head 'loss of earning capacity', instead of Rs.1,22,400/- awarded by the Tribunal. 19. With respect to the compensation awarded under the other heads, I find that the Tribunal has awarded reasonable and just compensation. 20. On a comprehensive re-appreciation of the MACA NO. 2781 OF 2009 8 pleadings and materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. **==> picture [449 x 438] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>No. awarded by awarded by<br>the Tribunal this Court<br>(in Rs.) (in Rs.)<br>1 Transportation expenses 200 200<br>2 Clothing 500 500<br>3 Bystander expenses 6,000 6,000<br>4 Extra nourishment 750 750<br>5 Pain and sufferings 25,000 25,000<br>6 Loss of amenities 15,000 15,000<br>7 Treatment expenses 9,800 9,800<br>8 Loss of marriage 15,000 15,000<br>prospects<br>9 Loss due to disability 1,22,400 4,32,000<br>Total 1,94,650 5,04,250<br>**----- End of picture text -----**<br> 21. Even though the appellant had only claimed an MACA NO. 2781 OF 2009 9 amount of Rs.2,50,000/- as compensation, I have awarded her more compensation amount than what is claimed in the claim petition, taking into account the fact that she was a Post Graduate student and fixing her notional monthly income at Rs.10,000/-, following the principles laid down in **Mekala** (supra). The said course is permissible in view of the law laid down in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 (SC)] and **Rajesh vs. Rajbir Sing** [2013 (3) KLT 89 (SC)]. In the result, the appeal is allowed by enhancing the compensation by an amount of **Rs.3,09,600/-** with interest @ 6% per annum from the date of petition till the date of deposit, after deducting interest for a period of 340 days (i.e. the period of delay in filing the appeal and as ordered by this Court on 28.10.2021 in C.M.Appln. No.1/2009), and a cost of Rs.10,000/-. The 2[nd] respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of 60 days from the date of receipt of a certified copy of this MACA NO. 2781 OF 2009 10 judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. Sd/- **C.S.DIAS, JUDGE** rkc/16.03.22