Thankamma v. Royal Sundaram Alliance Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 27[TH] DAY OF JULY 2022 / 5TH SRAVANA, 1944** **MACA NO. 317 OF 2015** **AGAINST THE AWARD DATED 23.07.2014 IN OP(MV)No.18/2009 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR APPELLANT/PETITIONER IN OP(MV)NO.18/2009:** **THANKAMMA, D/O.CHATHAN, MANDALA HARIJAN COLONY, KARUMALOOR, ALUVA.** **BY ADV SMT.ANUPAMA JOHNY** ## **RESPONDENT/RESPONDENT NO.2 IN OP(MV) NO.18/2009:** **M/S.ROYAL SUNDARAM ALIANCE INSURANCE CO.LTD. 2ND FLOOR, AMRUTHA TOWERS, K.P.C.C. JUNCTION, OPP: MAHARAJAS GROUND, M.G.ROAD, COCHIN P.O., 682018.** **BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.(SC)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 317 OF 2015 ..2..** ## **JUDGMENT** This appeal is preferred by the claimant in O.P. (MV)No.18/2009 on the files of the Motor Accidents Claims Tribunal, Perumbavoor. The parties are referred to as per status in the claim petition. 2. The petitioner, while walking through the road, was hit by a car bearing Registration No. KL-41/B-1191 owned and driven by the 1[st] respondent and sustained injuries. The 2[nd] respondent is the insurer of the car. The petitioner claimed an amount of Rs.5,00,000/- as total compensation for the injuries sustained in the accident. The 1[st] respondent was set _ex parte_ . The 2[nd] respondent filed a written statement admitting that the vehicle was covered by a valid policy of insurance. It was contended that the accident occurred due to the negligence of the petitioner and that the amount claimed as compensation is excessive. **MACA NO. 317 OF 2015 ..3..** 3. Before the Tribunal, the petitioner was examined as PW1. Exts.A1 to A19 documents and Ext.X1 disability certificate were marked on the side of petitioner. On the side of the 2[nd] respondent, Ext.B1 was marked. The Tribunal found that the accident happened due to the negligence of the driver of the car and awarded an amount of Rs.2,99,829/- as total compensation with 8% interest and proportionate costs. The 2[nd] respondent insurance company was directed to satisfy the award. Aggrieved by the quantum of compensation awarded, the petitioner has preferred this appeal. It is contended by the petitioner that the petitioner was hospitalised and treated as inpatient for 79 days in five spells. The petitioner has sustained the following injuries: - (1) Pain and lacerated wound right leg above ankle. - (2) Fracture to both bones right leg lower 1/3rd. 4. Ext.A19 is the disability certificate, wherein the orthopeadic disability of the petitioner was certified as **MACA NO. 317 OF 2015 ..4..** 40%. In Ext.X1, the whole body disability of the petitioner was assessed by the Medical Board as 15%. The learned Counsel for the petitioner contends that the amount of compensation awarded under various heads are totally inadequate. 5. According to the petitioner, she was a coolie and was earning an amount of Rs.4,000/- per month. The Tribunal has taken the notional income of the petitioner as Rs.3,500/-. Going by the dictum laid down in **Ramachandrappa** _**v**_ **. Manager, Royal Sundaram Alliance Insurance Company Limited** [2011 (13) SCC 236 : AIR 2011 SC 2951], the notional income of the petitioner is re-fixed as Rs.4,000/-, as claimed by the petitioner in the claim petition. The petitioner was aged 53 years at the time of the accident and the multiplier to be adopted is '11'. 6. The Tribunal has found that the petitioner was incapable of working for 8 months. Since I have taken the **MACA NO. 317 OF 2015 ..5..** notional income of the petitioner as Rs.4,000/-, the compensation for loss of earnings is re-fixed as Rs.32,000/[Rs.4,000x8]. Since the petitioner has already been awarded an amount of Rs.28,000/-, the petitioner is entitled for an enhanced amount of **Rs.4,000/-** [32,00028,000] under the said head. 7. Towards compensation for extra nourishment, though the petitioner claimed an amount of Rs.35,000/-, the Tribunal has awarded only Rs.6,000/-. Taking note of the injuries sustained, the period of treatment and the age of the petitioner, I re-fix the compensation under the above head as Rs.10,000/-. The petitioner is therefore, entitled for an enhanced amount of **Rs.4,000/-** (Rs.10,000-6,000). 8. Towards attendant charges, the petitioner claimed an amount of Rs.25,000/-. The Tribunal has awarded only Rs.9,000/-. The Tribunal has taken the period of hospitalisation as 60 days. Since from the records it is seen that the petitioner was treated as inpatient for 79 **MACA NO. 317 OF 2015 ..6..** days, the attendant charges is re-fixed as Rs.11,850/- (150 x 79 days). Since the petitioner was awarded an amount of Rs.9,000/-, she is entitled for an enhanced amount of **Rs.2,850/-** (Rs.11,850-9,000) under the said head. 9. Under the head compensation for pain and suffering, the Tribunal has awarded an amount of Rs.55,000/-. Taking note of the injuries sustained by the petitioner, I re-fix the compensation as Rs.75,000/-. Since the petitioner has already been awarded an amount of Rs.55,000/-, the petitioner is entitled for an enhanced amount of **Rs.20,000/-** (Rs.75,000-55,000) under the said head. 10. Towards compensation for loss of amenities, though the petitioner claimed an amount of Rs.1,00,000/-, the Tribunal has awarded only Rs.40,000/-. Taking note of the nature of the injuries sustained by the petitioner, the disability assessed by the Medical Board and the age of the petitioner, I find that the petitioner is entitled for an **MACA NO. 317 OF 2015 ..7..** amount of Rs.60,000/- under the above head. The petitioner is entitled for an enhanced amount of **Rs.20,000/-** (Rs.60,000-40,000) under the said head. 11. Since I have re-fixed the notional income of the petitioner as Rs.4,000/-, the compensation for permanent disability is re-worked as Rs.79,200/- (4,000x12x11x 15/100). Since the petitioner has already been awarded an amount of Rs.69,300/-, the petitioner is entitled for an enhanced amount of **Rs.9,900/-** (79,200-69,300) under the said head. 12. I find that the compensation awarded under other heads are just and reasonable. Accordingly, the petitioner is entitled for an enhanced amount of **Rs.60,750/-** (Rupees sixty thousand seven hundred and fifty only) (4,000+ 4,000+ 2,850+ 20,000+ 20,000+ 9,900). The 2[nd] respondent insurance company shall deposit the amount with 8% interest with proportionate costs from the date of petition till realisation, within a period of two months from **MACA NO. 317 OF 2015 ..8..** the date of receipt of a copy of this judgment. The appeal is allowed to the said extent. Sd/- **MURALI PURUSHOTHAMAN, JUDGE** SB/27/07/2022