Thankamma v. K.V. Vasudevan, Aneesh, United India Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **SATURDAY, THE 27[TH] DAY OF NOVEMBER 2021 / 6TH AGRAHAYANA, 1943** **MACA NO. 3101 OF 2019** **AGAINST THE AWARD DATED 11.01.2019 MADE IN OP(MV)NO.751/2011 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** THANKAMMA, AGED 72 YEARS, W/O. FRANCIS, RESIDING AT PUTHUR HOUSE, PARAPPUR, THRISSUR DISTRICT. BY ADVS. T.C.SURESH MENON P.S.APPU A.R.NIMOD ## **RESPONDENTS/RESPONDENTS:** 1 K.V.VASUDEVAN, S/O. VELU, RESIDING AT KUNNATH HOUSE, KUTTENCHERY, THRISSUR DISTRICT, PIN-680542. 2 ANEESH, S/O. SATHYANESAN, RESIDING AT THEKKEPARAMBIL VEEDU, PERUVALLUR, MULLASSERY, THRISSUR DISTRICT, PIN-680509. 3 THE UNITED INDIA INSURANCE COMPANY LIMITED, ORISON COMPLEX, WADAKKANCHERY ROAD, P.O. KUNNAMKULAM, THRISSUR DISTRICT, PIN-680503. BY ADVS. SRI.C.D.DILEEP SMT.PREETHY R. NAIR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **MACA NO. 3101 OF 2019 2** ## **JUDGMENT** The appellant is the petitioner in OP(MV) No.751 of 2011 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents are the respondents before the Tribunal. 2. The short facts relevant for the determination of this appeal are as follows: The appellant was travelling in a bus having Reg.No. KL-8-S-3657 on 06.01.2011 at 12 noon through Pavaratty-Parappur Road and when the bus reached Parappur while the appellant was getting down from the Bus, 2nd respondent who was the driver took the Bus forward in a rash and negligent manner. As a result, the door of the Bus hit the appellant and she sustained serious injuries. She was taken to Amala Hospital, Thrissur and was treated for her injuries there. Due to the accident, she suffered fracture of right femur and right 1st metatarsal bone. She was hospitalized for 22 days. The appellant was aged 64 years at the time of the accident and was a Tailor earning at Rs.14,000/- per month. The bus bearing Registration No. Reg. No. KL-8-S-3657 was owned by the 1st respondent and was insured with the 3rd respondent. The appellant claimed a total compensation of Rs. 2,80,000/- from the respondents. 3. Respondents 1 and 2 who are the owner and driver of the ## **MACA NO. 3101 OF 2019 3** offending vehicle did not contest the matter before the Tribunal and they were set ex parte. The 3rd respondent insurance company filed a written statement, admitting the insurance policy of the offending vehicle at the relevant time of the accident. 4. To prove the case, the appellant produced and marked Exts.A1 to A7 before the Tribunal. 5. The Tribunal after analysing the pleadings and materials on record, by the impugned award allowed the claim petition in part, permitting the appellant to realise an amount of Rs. 2,28,400/- with 8% interest per annum and proportionate costs from the date of petition till the date of deposit. The 3rd respondent was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the present appeal is filed. 7. Heard the counsel for the petitioner as well as the learned Standing Counsel appearing for the 3rd respondent Insurance Company. 8. The sole question that arises for consideration is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **MACA NO. 3101 OF 2019 4** 9. Ext.A1 is the copy of the FIR registered against the 2nd respondent herein and Ext.A3 is the copy of the final report in the above said crime. Ext.A1 and A3 prima facie prove that the accident was solely on account of negligence on the part of the 2nd respondent, who was riding the offending bus bearing Reg. No. KL-8-S-3657 and there was no contra evidence adduced. Therefore, the Tribunal has held that the accident occurred owing to negligent driving of 2nd respondent. Admittedly, the 1st respondent is the owner and the 3rd respondent is the insurer of the offending vehicle. Therefore, the 3rd respondent is bound to indemnify the liability of the 1st respondent. 10. The appellant had claimed that she is a Tailor, aged 64 and was having a monthly income of Rs.14,000/-. The Tribunal fixed the notional income of the appellant at Rs.4000/- and the appellant claimed that the Tribunal went wrong in fixing Rs.4,000/- as notional income. 11. Taking into consideration the fact that the appellant is a tailor, I feel that the notional income fixed by the Tribunal appears to be wrong. Even in the case of a Coolie worker, the Apex Court in _**Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd [(2011) 13 SCC236]**_ has fixed the ## **MACA NO. 3101 OF 2019 5** notional income as Rs.4,500/- per month in the year 2004. The Hon'ble Apex Court in _**National Insurance Co. Ltd. v. Pranay**_ _**Sethi and Others, (2017) 16 SCC 680**_ has also recognized the principle that there would be an incremental enhancement in the case of even self-employed individuals in the unorganized sector. Taking into consideration the decisions as referred above and the fact that the appellant is employed as a tailor, I feel that an amount of Rs. 8000 per month can be fixed as notional income of the appellant. 12. Under the head Loss of Earnings an amount of Rs.40,000/was allowed by the Tribunal on finding that there is loss of income for ten months and by fixing the notional income per month at Rs.4,000/-. Due to the enhancement of notional income to Rs.8000/-, the amount due to the appellant under the head of Loss of Earnings is fixed at Rs.80,000/- (8000 x 10) instead of Rs.40,000/- awarded by the Tribunal. 13. Even though the appellant had claimed Rs.1,00,000/- as compensation for permanent disability, the Tribunal granted only Rs.38,400/- (4000 x 5 x 12 x 16/100 ) under this head. Exhibit A7 is the Disability Certificate which shows 16% whole body permanent physical disability. Tribunal took the multiplier of 5. Considering the ## **MACA NO. 3101 OF 2019 6** age of the appellant, which was 64 years at the time of the accident and in view of the judgment in _**Sarla Verma vs. Delhi Transport Corporation [(2010 (2) KLT 802]**_ the proper multiplier to be applied in this case is 7. Since notional income has been increased by this Court from Rs.4,000/- to 8,000/-, the appellant is entitled to a total amount of Rs.1,075,20/- (8000 x 7 x 12 x 16/100) as compensation for permanent disability instead of Rs.38,400/- fixed by the Tribunal. 14. Towards loss of amenities in life, the Tribunal has awarded Rs.20000/. Taking into consideration the disability suffered by the appellant, nature of the injury which clearly affects the avocation of tailoring undertaken by the appellant, I find that an amount of Rs. 25000/- will be a just and reasonable compensation under the said head. 15. With respect to compensation awarded under other various heads, I find that the Tribunal has awarded reasonable and just compensation. 16. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the decisions cited _**supra**_ , I am of the firm opinion that the appellant is entitled for enhancement of ## **MACA NO. 3101 OF 2019 7** compensation as modified and recalculated above and as given in the table below for easy reference. |**Head of claim**|**Amount**<br>**Awarded by**<br>**the Tribunal**<br>**(in Rs.)**|**Amounts**<br>**modified and**<br>**recalculated**<br>**by this Court**<br>**(in Rs.)**|| |---|---|---|---| ||||**Actual increase as**<br>**per**<br>**the**<br>**recalculation by**<br>**this Court(Rs.)**| ||||| ||||| ||||| ||||| |Loss of Earning|40,000/-|80000/-|40,000/-| ||||| |Medical Expenses|74,600|74,600/-|--| ||||| |Bystander Expenses|4,400/-|4,400|--| ||||| |Transportation expenses|2000/-|2000/-|--| ||||| |Extra nourishment|2000/-|2000/-|--| ||||| |Damage to clothing|1,000/-|1000/-|--| ||||| |Pain and suffering|40,000/-|40,000/-|--| ||||| |Compensation<br>for<br>the<br>continuing or permanent<br>disability|||| ||38,400/-|1,07,520/-|69,120/-| ||||| ||||| |Compensation for loss of<br>earning power|||| ||--|--|--| ||||| ||||| |Loss of amenities and<br>enjoyment of life|||| ||20000|25000|5000/-| ||||| ||||| |Personal assistance|6000|6000|--| ||||| |Total|2,28,400|3,42,520|1,14,120/-| ## **MACA NO. 3101 OF 2019 8** 16. The appellant/petitioner had claimed only an amount of Rs.2,80,000 as compensation before the Tribunal and this Court taking into consideration the circumstances of the case including the nature of injury and disability and on a proper analysis of the law laid down by the Apex Court, have entered a finding that an amount of Rs.3,42,520/- would be just and reasonable compensation. The Apex Court in _**Nagappa vs. Gurudayal Singh and Others, (2003) 2 SCC 274**_ and in _**Rajesh vs. Rajbir Singh, (2013 (3) KLT 89 (SC)**_ has held that it is the duty of the court to award a just, equitable, fair and reasonable compensation if necessary by ignoring the claim made in the application for compensation. In the result, the appeal is allowed in part, by modifying the order of the Tribunal and enhancing the compensation by a further amount of Rs.1,14,120/- with interest at the rate of 8% per annum from the date of petition till the date of realisation with proportionate costs. The 3rd respondent shall deposit the additional compensation amount awarded in the appeal before the Tribunal with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any of the **MACA NO. 3101 OF 2019 9** appellant/petitioner towards balance court fee. The Tribunal shall disburse the compensation to the appellant/petitioner in accordance with the law. sd/- ## **VIJU ABRAHAM,JUDGE** pm