United India Insurance Company Limited v. Dr. Somasundari P.V.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **TUESDAY, THE 6TH DAY OF MARCH 2012/16TH PHALGUNA 1933** **MACA.No. 1877 of 2006 (A )** **------------------------OPMV.1453/1999 of MACT, ALAPPUZHA** ## **APPELLANT/3RD RESPONDENT:** **----------------------------------------------** **UNITED INDIA INSURANCE COMPANY LIMITED, KOLLAM NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, "SHARANYA", HOSPITAL ROAD, KOCHI-11.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/PETITIONER:** **----------------------------------------** **DR.SOMASUNDARI.P.V., W/O.DR.PRADEEP KUMAR, MEENATHU VEEDU, WARD NO.VIII, ARATTUPUZHA PANCHAYATH, ALAPPUZHA NOW RESIDING AT ESI QUARTERS, FACTORY WARD, ALAPPUZHA.** ## **BY ADV.SRI.A.KRISHNAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MG** ## **PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ. =====================** M.A.C.A. NO. 1877 of 2006 **=====================** Dated this the 6[th] day of March 2012 ## JUDGMENT ## **Ramakrishna Pillai.J** The respondent/claimant who is a Homoeo Doctor by profession approached the Tribunal claiming compensation to the tune of `4 lakhs on account of the injuries sustained by her in a road traffic accident occurred on 14/8/1999. 2. Allegedly while the respondent was riding on the pillion of a two wheeler, she was hit down by a car which was coming from the opposite direction. The appellant who was the Insurer of the car was held liable to pay the compensation as the primary liability was fixed by the Tribunal on the driver of the car. Against the claim of `4 lakhs, the learned Tribunal has awarded `2,40,000/- MACA 1877/2006 -2- under various heads as compensation. The appellant contends that the compensation awarded is too high. We have heard the learned senior counsel appearing for the appellant - Insurance company and the learned counsel for the respondent. We have also perused the impugned award. Medical records reveal that the respondent sustained following injuries. Lacerated wound(R) knee 3 x 1 cm deep to subcontennuous tissue, contused abrasion over left knee, avulsion of nail(R) big toe, contused abrasion (R)elbow, contused abrasion(R)elbow, contusion(R)ankle 3 x 2 cms.fracture of tibial condyle (L)tibia and avulsion tibial spine. She was hospitalized for about seven days. According to the respondent, she was earning a monthly salary of `10,000/-. But the learned Tribunal after considering Ext.A20 salary MACA 1877/2006 -3- certificate fixed the monthly income of the respondent at `9,500/-. The main challenge is regarding the compensation awarded for permanent disability. The learned Tribunal adopted salary of the respondent for arriving at the compensation for residual disability. It was argued by the learned Senior counsel for the appellant that as the respondent is still continuing in her job, the adoption of her salary for computing the compensation for residual disability is not justifiable. Our attention was invited by the learned senior counsel to the decision of the Supreme Court in **Rajkumar v. Ajay Kumar[ 2011(1)K.LT.620]** where it was held that the Tribunal should not mechanically apply the percentage of economic loss of earning capacity. It was argued by the learned senior counsel for the Insurance company that there is no loss of earning capacity as the respondent is still continuing in her job. But we cannot lose sight of the fact that on account of the injuries sustained by MACA 1877/2006 -4- the respondent, she is having a residual disability as evident from Ext.A12 disability certificate. The certificate shows that she is having a permanent disability of 12% and it was proved through PW2. However, the learned Tribunal has fixed the percentage of permanent disability of the respondent at 10. Undoubtedly the residual disability would affect the quality of life of the respondent, though there may not be any reduction in earning capacity. In other words the respondent/claimant will have to strain more to attend her daily routine and according to us, the said residual disability has to be compensated. For arriving at the quantum of compensation towards residual disability, we have to adopt a notional income. As the accident was of the year 1999 and the respondent was 38 years old, we fix the notional income of the respondent for computing the compensation for residual disability at ` 2000. When the compensation for residual disability is recalculated adopting MACA 1877/2006 -5- the notional income of `2000/- per month, the multiplier 16 and the percentage of disability at 10, the compensation for permanent disability payable to the respondent will stand reduced to `38,400/-. As the learned Tribunal has awarded a sum of `1,82,400/-, for permanent disability a sum of `1,44,000/- has to be deducted from the compensation awarded. It was also pointed out by the learned Senior counsel for the appellant that in addition to the compensation for permanent disability, the learned Tribunal has awarded a sum of `10,000/- towards loss of earning capacity which is not legally sustainable as per the decision of the Full Bench of this Court reported in **Oriental Insurance Co.Ltd. v. Hariprasad[2005(4)K.L.T.620]** . We accept the argument advanced and we are of the view that the aforesaid sum of `10,000/- awarded by the learned Tribunal towards loss of earning capacity also has to be MACA 1877/2006 -6- deducted from the total compensation. We do so. Thus the total sum that has to be deducted from the said amount is ` 1,54,000/- We have also gone through the amount awarded by the learned Tribunal under other heads. Towards compensation for pain and suffering, the learned Tribunal has awarded only a sum of `10,000/-. Considering the nature of injuries, we are of the view that the respondent is entitled to some more amount. Thus we award additional sum of `10,000/- towards compensation for pain and suffering. Towards loss of amenities in life for the period during which the respondent had undergone treatment, the learned Tribunal has awarded a sum of ` 8,000/-. We are of the view that the amount awarded for loss of amenities also is on the lower side. Thus we are awarding an additional sum of `10,000/- under that head. MACA 1877/2006 -7- When the compensation awarded to the respondent is remodified as above and the total compensation awarded will stand reduced by `1,34,000/- (`1,54,000 – 20,000). As the accident was of the year 1999,we are of the view that the amount of compensation shall carry interest at the rate of 7.5% per annum from the date of petition till realization. In the result, the appeal is allowed. The award shall stand modified as above. ## **Sd/-** **PIUS C.KURIAKOSE, JUDGE** **Sd/A.V.RAMAKRISHNA PILLAI, JUDGE** **ks.** **true copy P.S.To Judge** MACA 1877/2006 -8-