Usha Shyam v. GOPI O.S. and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 21[ST] DAY OF OCTOBER 2022 / 29TH ASWINA, 1944 ``` ## **`MACA NO. 2835 OF 2014`** ## **`AGAINST THE AWARD DATED 07.04.2014 IN OP(MV) NO. 2070/2011 OF`** ## **`MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM`** ## **`APPELLANT/PETITIONER:`** ``` USHA SHYAM, AGED 43 YEARS W/O.SHYAM, MUNDAKAIPADAM, ELOOR, KUTTIKKATTUKARA P.O.,ERNAKULAM - 683 504. ``` ``` BY ADVS. SRI.MANOJ RAMASWAMY SMT.SANJANA R.NAIR ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1GOPI O.S,S/O.SANKARAN, KOUSTHUBHAM, OLIPARAMBIL HOUSE, 13/382, MUPPATHADAM P.O., ERNAKULAM DISTRICT - 683 109. 2THE NEW INDIA ASSURANCE CO.LTD., KOTTAKKAL ARYA VAIDYA SALA BUILDING, P.B.NO.2451, M.G.ROAD, ERNAKULAM - 682 016. 3ANTO FRANCIS, GENERAL SECRETARY, TRICHUR DISTRICT PRIVATE BUS OPERATORS ASSOCIATION, WEST PALACE ROAD, THRISSUR - 680 001. 4JOHNY V.L,S/O.LONAPPAN, VALIKKADATH HOUSE, PAZHUVIL, THRISSUR - 680 564. 5THE NATIONAL INSURANCE CO.LTD. BRANCH OFFICE, THRISSUR - 680 002. BY ADVS. SRI.LAL K.JOSEPH FOR R5 SRI.K.C.SANTHOSHKUMAR SRI.V.S.SHIRAZ BAVA SMT.K.S.SANTHI, SC FOR R2 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ``` ``` ADMISSION ON 21.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A No. 2835 OF 2014 2 ## **BASANT BALAJI, J.** ## **=========================== M.A.C.A. No.2835 OF 2014 ============================ Dated this the 21[st] day of October, 2022** ## **JUDGMENT** Being dissatisfied with the compensation awarded in O.P. (MV) No.2070 of 2011 on the files of the Motor Accidents Claims Tribunal, Ernakulam, this appeal is filed by the appellant/petitioner. 2. The appellant was working as a Fusing Supervisor in Schjiffilies India Ltd., South Kalamassery. On 25.07.2011 at about 8.35 a.m. while she was riding a scooter bearing Reg.No.KL-42/D2066 along Aluva – Ernakulam road and when she reached near Appolo Tyres, she stopped the scooter near the median to take U-turn. Then a car bearing registration No.KL42/A-5963 driven by the 1[st] respondent came from behind in a negligent manner with excessive speed hit on the scooter. As a result of which she was thrown out to the road and was jammed in front of the lorry bearing registration No.KL-07/AS 5020 which was proceedings from south to north. She was taken to KIMS hospital, Pathadipalam and treated there. The accident M.A.C.A No. 2835 OF 2014 3 happened due to the rash and negligent driving of the car driven by the 1[st] respondent. The car was validly insured with the 2[nd] respondent. She claimed an amount of RS.25,00,000/- towards compensation in connection with the injuries sustained. Respondents 1, 3 and 4 were set ex-parte. The 2[nd] respondent entered appearance and filed written statement admitting the policy of the offending car, it was contended that the accident was neither reported nor produced vehicular documents for verification. The negligence attributed to the driver of the car was denied. The petitioner was carelessly driven the scooter that led to accident. On these grounds, the 2[nd] respondent prayed for dismissal of the petition. 3. The 5[th] respondent entered appearance and filed written statement contending that there was no rash and negligence driving on the part of the 4[th] respondent driver of the lorry. The accident occurred due to the rash and negligence driving of the driver of the car. The petitioner is not entitled to get any compensation from the 5[th] respondent. The Tribunal relying on Exts.A1 to A16, C1 and oral evidence of PW1, awarded a compensation of Rs.20,18,200/- with interest @8% per annum from the date of petition till realisation. Aggrieved by the M.A.C.A No. 2835 OF 2014 4 compensation awarded by the Tribunal on various heads, this appeal is filed. 4. The counsel for the appellant submits that the appellant was aged 45 years at the time of accident earning a monthly salary of Rs.11,500/-. But the Tribunal has taken the income as only Rs.4,000/- for calculating the compensation for permanent disability though Ext.A12 was produced to show that he was earning Rs.11,500/-. The persons who issued the certificate was not examined and therefore the Tribunal did not accept the certificate. Even going by the decision in **Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]** for an accident happened in the year 2011, notional income for Coolie is to be taken as Rs.8,000/-. Since there was no evidence to show that she was earning Rs.11,500/- relying on decision of the Apex Court mentioned above the monthly income is taken as Rs.8,000/- Ext.C1 disability certificate issued by the District Medical Board, Ernakulam shows that she has permanent disability of 55%. Ext.A11 discharge summary shows that right leg below knee was amputated and there was further complications after the amputation. Therefore, the monthly M.A.C.A No. 2835 OF 2014 5 salary is taken as Rs.8000/-. Since the disability is 55% and a lady aged 45 years had underwent amputation of leg below knee, I am of the opinion that an additional 25% as future expenses should be added to the income. Hence, the monthly income is taken as Rs.8,000/- plus increase of 25% is equal to Rs.10,000/-, compensation for loss of disability is calculated as 10000x12x14x55/100 = 9,24,000/-. 5. The counsel for the appellant submits that as per Ext.C1 she has sustained injuries to the face and she finds in difficult to open her mouth and deviation of maxilla towards right side. The Tribunal has gone through Ext.C1 and entered into a finding that it cause disfigurement to her face also. But no amount was awarded for the head of ‘compensation for disfigurement’. Taking into consideration the injuries sustained as well as the finding that she finds in difficult to open her mouth, I am inclined to award a sum of Rs.25,000/- towards the compensation for disfigurement. As per Ext.A10, discharge summary, it is seen that the infection was the reason for amputation of the portion of leg and all these shows that she needs further treatment again. Amputation was done three times - first her foot, then below and finally above knee. So, M.A.C.A No. 2835 OF 2014 6 definitely she would incurred some expense for future treatment also. Taking into consideration of entire aspects including Ext.C1 as well as Ext.A10, a sum of Rs.25,000/- is awarded for future treatment. 6. Towards compensation for pain and suffering, though she claimed Rs.2,00,000/-, the Tribunal has awarded Rs.1,00,000/- which I find it reasonable and just. 7. Towards compensation for amenities of life, though she claimed Rs.1,00,000/-, no amount was awarded under the said head. It seen that person whose leg has been amputated below the knee definitely will lose so many amenities in life. She will need support of a third person even to move about, till she regain confidence to walk with an artificial leg. In such situation, for loss of amenities and enjoyment of life, a sum of Rs.25,000/is awarded on the said head. 8. The Tribunal has found that the petitioner is entitled to get loss of income for two years considering the nature of injuries and disability and has awarded Rs.96000/- towards compensation for loss of earning for two years taking the notional income of the petitioner as Rs.4000/. When the M.A.C.A No. 2835 OF 2014 7 monthly income is taken as Rs.8,000/-, the compensation for loss of earning for two years would be Rs.192000/-. 9. Accordingly, the following enhancements are made to ## the award made by the Tribunal: |Sl.<br>No.|Head of Claim|Amt. Awarded<br>byTribunal(Rs.)|Amt. Enhanced<br>in appeal(Rs.)| |---|---|---|---| |1.|Compensation for<br>continuing and<br>permanent/partial<br>disability|3,69,600|9,24,000| |2.|Compensation for<br>disfguration|0|25,000| |3.|Compensation for future<br>treatment|0|25,000| |4.|Compensation for loss of<br>amenities in life|0|25,000| |5.|Compensation for loss of<br>earning|96,000|1,92,000| ||Total|**4,65,600**|**11,91,000**| ||Amount enhanced – 11,91,000- 4,65,600 =**7, 25,400/**-||| In the result, appeal is allowed and the appellant is entitled for enhanced compensation of Rs.7,25,400/- with interest at the rate of 8% per annum from the date of petition till realisation. All other findings entered by the Tribunal stand confirmed. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one M.A.C.A No. 2835 OF 2014 8 month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. **Sd/BASANT BALAJI JUDGE** nk