United India Insurance Co. Ltd. v. Veeramma W/o Cheriya Nachimuthu and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 28[TH] DAY OF SEPTEMBER 2021 / 6TH ASWINA, 1943** **MACA NO. 1805 OF 2011** **AGAINST THE AWARD DATED 31.1.2011 IN OP(MV) 1373/2009 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL,KOZHIKODE** ## **APPELLANT/3RD RESPONDENT IN O.P.(MV):** THE UNITED INDIA INSURANCE CO.LTD. KALPETTA BRANCH, REPRESENTED BY THE ASSISTANT MANAGER UNITED INDIA INSURANCE CO.LTD. REGIONAL OFFICE, HOSPITAL ROAD ERNAKULAM. BY ADVS. SRI.M.A.GEORGE SMT.DEEPA GEORGE ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1 AND 2 IN THE OP(MV):** 1 VEERAMMA W/O.CHERIYA NACHIMUTHU RESIDING AT SRUTHI NILAYAM, CMC COLONY CHAKKUMKADAVU, KALLAI P.O., KOZHIKODE. PIN 673 506. 2 GEORGE S/O.VARKEY, RESIDING AT 7/505 KALAPURAKKAL HOUSE, MULLANKOLLY P.O. CHAKKUMKADAVU, P.O.KALLAI, KOZHIKODE PIN 673 506. 3 AJMAL N.P., S/O.ABDURAHIMAN, RESIDING AT NADUPARAMBIL HOUSE P.O.BALUSSERY, KOZHIKODE, PIN 673 612 4 FATHIMA KOYATTI SANITHA MAHAL, PATTARTHODI, PANNIYANKARA KOZHIKODE, PIN 673 5001. BY ADV SMT.K.V.RESHMI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No.1805/2011 ## _**JUDGMENT**_ _Dated this the 28[th] day of September, 2021_ The appellant was the third respondent in O.P.(M.V.) No.1373 of 2009 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The first respondent in the appeal was the petitioner and respondents 2 to 4 were respondents 1, 2 and 4 before the Tribunal. The parties are for the sake of convenience, wherever the context requires, referred to as per the status before the Tribunal herein below. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that she sustained in the accident on 8.8.2009. It was the case that, while she was engaged in sweeping the public road named Nayipalam, a car bearing registration No.KL-12/1323, driven by the second respondent in a rash and negligent manner, hit the petitioner. The petitioner sustained serious injuries and was treated at PVS Hospital, Kozhikode from 8.8.2009 to 31.8.2009. She suffered a vicondylar fracture, fracture of her ribs and fracture of the neck of right 3 MACA No.1805/2011 humerus. Her leg had to be amputated. She could not attend her duties. The car was owned by the first respondent and insured with the third respondent. The supplemental fourth respondent was the registered owner of the car. The petitioner was a sanitation worker in the Kozhikode Corporation and earning a monthly income of Rs.14,015/-. The petitioner claimed an amount of Rs.12,62,990/- as compensation from the respondents, which was limited to Rs.8,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 4. The third respondent and the supplemental 4[th] respondent had filed separate written statements refuting the allegations in the claim petition. The third respondent admitted that the car was having a valid insurance policy coverage. However, it was contended that the compensation claimed was excessive. 5. The petitioner had produced and marked Exhibits A1 to A7 in evidence. Her date of birth certificate was marked as Exhibit X1 and the disability certificate issued by the Medical Board was marked as Exhibit C1. 4 MACA No.1805/2011 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioner to realise from the third respondent an amount of Rs.8,00,000/- with interest at the rate of 7% per annum from the date of petition till the date of realisation and a cost of Rs.1,000/-. 7. Aggrieved by the impugned award, the third respondent/insurer is in appeal. 8. Heard ; Smt.Deepa George, the learned counsel appearing for the appellant/third respondent - insurer and Smt.K.V.Rashmi, the learned counsel appearing for the first respondent/petitioner. 9. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Liability** 10. The appellant insurer has not disputed its liability. It has admitted that the car was having a valid insurance coverage and that the owner of the car had not violated the insurance policy conditions. Therefore, the appellant is to indemnify the liability of the second 5 MACA No.1805/2011 ## respondent/first respondent - owner. **Loss due to disability** 11. The bone of contention in the appeal is that, as the petitioner was permanently employed as a sanitation worker in the Kozhikode Corporation, she had no loss of earnings. However, the Tribunal awarded compensation for loss due to disability by adopting the multiplier of 11. 12. The learned counsel appearing for the appellant argued at since the petitioner was aged 57 years at the time of accident and had no loss of earnings, the split multiplier method had to be adopted by the Tribunal. Therefore, the appeal has to be allowed by scaling down the compensation awarded to the petitioner for loss due to disability and loss of earnings. 13. In **Puttamma v. K.L.Naryana Reddy and another** [2014 (1) KLT 738], the Honourable Supreme Court has held that the split multiplier method shall not be adopted without cogent reasons. 14. In the instant case, undisputedly the petitioner was aged 57 years at the time of accident, as evidenced by Exhibit X1. Hence, she had only three more years of 6 MACA No.1805/2011 service, as she would have superannuated at the age of 60 years. It is admitted that the petitioner had continued to draw salary, except for 80 days. Thus, I find cogent reasons to adopt the split multiplier method because the petitioner would be incapacitated to earn only after her age of superannuation. In view of the above finding, the relevant multiplier to be adopted is '9', i.e., multiplier for a person who has attained the age of 60 years. 15. The petitioner was a sanitation worker. The duly constituted Medical Board has by Exhibit C1 assessed that the petitioner's permanent disability at 81%, due to the amputation of her right leg. 16. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 (SC)], the Honourable Supreme Court has held that what has to be looked into is functional disability of an injured claimant. 17. In the present case, as the petitioner is a sanitation worker and her right leg has been amputated above the knee, I fix her functional disability at 90%. 18. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.** ((2011) 13 SCC 236), the 7 MACA No.1805/2011 Honourable Supreme Court has fixed the notional income of the coolie worker in the year 2004 at Rs.4,500/- per month. 19. Following the yardstick in the above cited decision and keeping in mind that the petitioner was a sanitation worker, I fix her notional income at Rs.7,000/per month. 20. Taking into account the above mentioned factors, namely, the monthly income of the petitioner at Rs.7,000/-, her functional disability at 90% and multiplier at 9, I hold that the petitioner is entitled for compensation for loss due to disability at Rs.6,80,400/- instead of Rs.13,74,670/awarded by the Tribunal. ## **Loss of earnings** 21. It is proved by Exhibit A7 certificate, that the petitioner was on loss of pay for the period from 10.8.2009 to 29.10.2009 i.e., for a period of 80 days. 22. In the above circumstances, taking into account the petitioner's salary at Rs.12,859/- per month and her loss of pay for 80 days, I hold that the petitioner is entitled for loss of earnings at Rs.34,290/-, instead of Rs.60,000/- 8 MACA No.1805/2011 ## awarded by the Tribunal. 23. With respect to the other heads of compensation, namely, transport to hospital, extra nourishment, damage to clothing , medical expenses, pain and sufferings, I find that the Tribunal has awarded reasonable and just compensation. 24. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the aforecited decisions, I hold that the petitioner is entitled for compensation as modified and recalculated above and given in the table below for easy reference. |Sl.No.|Head of claim|Amount awarded by<br>the Tribunal (Rs.)|Amount modified and<br>recalculated by this<br>Court (Rs.)| |---|---|---|---| ||Loss of earnings|60,000/-|34,290/-| ||Transport to hospital|2,000/-|2,000/-| ||Extra nourishment|3,000/-|3,000/-| ||Damage to clothing|500/-|500/-| ||Medical Expenses|42,405/-|42,405/-| ||Pain and suffering|25,000/-|25,000/-| ||Permanent Disability|13,74,670/-|6,80,400/-| ||Total|15,07,575/-<br>limiting to Rs.8 lakh|7,87,595/-| In the result, the appeal is allowed in part, by scaling down the compensation by an amount of Rs.12,405/-. The 9 MACA No.1805/2011 appellant/third respondent - insurer is ordered to deposit before the Tribunal the amount of Rs.7,87,595/- (Rupees Seven Lakh Eighty Seven Thousand Five Hundred and Ninety Five only) as compensation with interest at the rate of 7% per annum on the above amount from the date of petition till the date of deposit and a cost of Rs.4,000/-, within 60 days from today. The Tribunal shall, immediately on deposit being made by the appellant, disburse the compensation amount to the first respondent/petitioner in accordance with law. Sd/- ## **C.S.DIAS, JUDGE** csl