## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN**
**TUESDAY, THE 4TH DAY OF JULY 2017/13TH ASHADHA, 1939**
**MACA.No. 276 of 2012 () ------------------------**
**AGAINST THE JUDGMENT AND AWARD IN OP(MV).48/2008 of MACT, PALA DATED 10-11-2011**
## **APPELLANT/PETITIONER:**
**------------------------------------**
**USHA, AGED 37 YEARS W/O SHIBU K.K., KIZHAKKEKARAYIL HOUSE PERUMPADAVAM P.O., AVARMAKARA, PERUVA MULAKULAM VILLAGE.**
**BY ADV. SRI.ABRAHAM MATHEW (VETTOOR)**
## **RESPONDENTS/RESPONDENTS:**
**--------------------------------------**
**1. MATHEW, AGED 58 YEARS S/O. PONNAN, ELACKADU HOUSE, POOTHETTUBHAGAM PERUMABIKATTUCHERY KARA, PERUMBHAYIKATTU VILLAGE KOTTAYAM DISTRICT.**
**2. THE NEW INDIA ASSURANCE CO. LTD., REPRESENTED BY ITS BRANCH MANAGER, PALA.**
**R2 BY ADV. SRI.M.RAJAGOPALAN BY SRI.A.A.ZIYAD RAHMAN BY SRI.RAJIT**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**ami/**
## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.**
**-----------------------------------------------** M.A.C.A.No.276 of 2012 **-----------------------------------------------** Dated this the 4[th] day of July, 2017
## **J U D G M E N T**
## Ravikumar, J.
This appeal for enhancement of quantum of compensation is filed by the injured petitioner. She filed O.P.(MV)No.48/08 before the Motor Accidents Claims Tribunal, Pala, seeking a total compensation of `6 lakhs for the injuries sustained by her in a motor vehicle accident occurred on 20.11.2007. She was a foot passenger when she met with the said accident. She was knocked down by a car bearing registration No.KL-5/E-4809 driven by the 1[st] respondent. On sustaining serious injuries, she was taken to Medical Trust Hospital, Ernakulam, where she remained as an inpatient from 20.11.2007 to 23.11.2007. On 23.11.2007, she was shifted to Medical College Hospital and she remained there as an inpatient till 11.12.2007. The injury sustained by her resulted in permanent disability. It is in the said circumstances that she filed the above mentioned claim petition
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under Section 166 of the Motor Vehicles Act, claiming a compensation of `6 lakhs.
2. Before the Tribunal, she got herself examined as PW1, besides getting marked Exts.A1 to A11. There was no evidence on the side of the respondents. Ext.X1 is the copy of the disability certificate issued by a Medical Board attached to Medical College Hospital, Kottayam. The Tribunal, as per the impugned award, granted a total compensation of `71,355/- with interest at the rate of 7.5% per annum from the date of petition till realisation. It is seeking enhancement of the compensation that the captioned appeal has been preferred.
3. We have heard the learned counsel for the appellant and also the learned counsel appearing for the 2[nd] respondent insurance company.
4. Admittedly, there is no dispute regarding the accident, the cause of accident as also the liability of the 2[nd] respondent to indemnify the 1[st] respondent, who was the owner cum driver of the offending vehicle. The learned counsel appearing for the appellant contended that the Tribunal had erroneously fixed the monthly income ignoring the averments regarding the occupation
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and income made by the appellant in the claim petition and her own oral testimony as PW1. In the claim petition, it was averred that the appellant was a coolie worker and was earning `5,000/per month. In the case of a coolie worker, it is difficult to tender evidence to establish the said fact. However, in this case, it is evident that the appellant had mounted the box and deposed the fact that she was a coolie worker. The accident occurred in the year 2007 and at the time of the accident, the appellant was aged 33 years. In the case of housewives, aged between 39-54 years, the Honourable Apex Court in the decision in **Lata Wadhwa & others Vs. State of Bihar [2001 (8) SCC 197]** held that the monthly income could be estimated as `3,000/- equating the value of services rendered by the housewives, in terms of money. In such circumstances, we have no hesitation to hold that the monthly income fixed by the Tribunal as `2,000/- is too low. Taking into account all the aforesaid aspects, we are inclined to fix the monthly income for calculation purpose as `4,500/-. The learned counsel for the appellant further contended that the Tribunal had committed an error in totally disregarding Ext.X1 medical certificate and declining to grant compensation for
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permanent disability. Ext.X1 is the disability certificate dated 11.11.2009 issued a duly constituted Medical Board attached to Medical College Hospital, Kottayam. The Tribunal had virtually declined to accept certification thereunder assigning certain reasons. Even after noticing that Ext.A6 wound certificate revealed that the appellant had sustained fractures, the Tribunal held that the appellant had sustained only a simple hurt going by Ext.A5 final report laid in Crime No.362/07 of Kuravilangad police station registered in connection with the accident in question. The Tribunal, going by Ext.A5, observed that the appellant had sustained only a simple hurt and that the issuance of Ext.X1 disability certificate could not be comprehended.
5. Learned counsel appearing for the appellant/petitioner handed over copies of Ext.A6 wound certificate and also Ext.X1 disability certificate. Ext.A6 would reveal that the appellant had sustained fracture of right humerus, fracture of shaft of left femur and fracture of left superior ramus pelvis. It would also reveal that she sustained certain other injuries as well. When that be the position, Ext.X1 disability certificate issued by the Medical Board attached to Medical College Hospital, Kottayam
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certifying that the appellant had incurred permanent disability cannot be doubted. Disability under various heads has been assessed by the Medical Board. But at the same time, instead of converting the assessed disabilities into whole body disability, the certificate appears to have been issued. While issuing the disability certificate, the disabilities assessed under different heads were added up by the Board. Taking note of the nature of injuries revealed from Ext.A6 and Ext.X1, we are of the considered view that the Tribunal was not justified in not assessing the permanent disability of the appellant for the purpose of granting compensation for permanent disability. At any rate, declining to grant compensation under that head by observing that the appellant has sustained only a simple hurt cannot be sustained. On perusing the disability certificate and the nature of certification thereunder and also taking note of the fact that she had sustained fractures on 3 bones, we are inclined to take the extent of permanent disability as 12% for calculation purpose after taking due notice of Ext.A6 and Ext.X1. With reference to the age of the appellant, viz., 33 years, the multiplier to be adopted in this case is '16', going by the schedule given in
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the decision in **Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802]** . Taking into account the aforesaid factors, compensation for permanent disability has to be assessed. On such assessment, the appellant will be entitled to get an amount of ` **1,03,680** /- (4,500x12x16x12/100).
6. The Tribunal had fixed the period, for calculating compensation for 'loss of earning', as 2 months. Taking note of the injuries, more particularly, the fracture sustained and the parts on which she sustained such fractures, we are of the considered view that, it ought to have been taken as 5 months. Based on the re-fixed monthly income and taking the period of loss of earnings as 5 months, the appellant will be entitled to get an amount of `22,500/- (4,500x5) under the head 'loss of earnings'. The Tribunal had already granted `4,000/- under the said head. After deducting the said amount, the appellant would be entitled to get an additional compensation of ` **18,500** /- under that head.
7. As noticed hereinbefore, the appellant had been an inpatient for a period of 21 days. The Tribunal had granted only an amount of `750/- towards 'extra nourishment' and `2,000/-
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towards 'bystander expenses'. We are of the considered view that the appellant is entitled to get `100/- per day towards 'extra nourishment' and `200/- per day towards 'bystander expenses'. In such circumstances, she is entitled to get ` **1,350** /- additionally towards 'expenses for extra nourishment' and ` **2,200** /- towards 'bystander expenses'.
8. Towards 'damage to clothing', the Tribunal had granted only a sum of `250/-. We are inclined to grant ` **750** /- more under the said head. Towards 'pain and suffering', the Tribunal had granted `7,500/- and towards 'loss of amenities' an amount of `15,000/- was granted. Taking into account the nature of injuries and the period of hospitalisation and the parts on which the appellant sustained such injuries, we are inclined to grant ` **17,500** /- additionally towards 'pain and suffering' and ` **10,000** /- additionally towards compensation for 'loss of amenities'.
In the light of the said assessment and enhancement, the appellant is entitled to get an additional compensation of `1,53,980/-, which is rounded off to ` **1,54,000** /-. The said additional compensation will carry interest at the rate of 8% per annum from the date of petition till realisation. The 2[rd]
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respondent insurer shall deposit the said amount within a period of 2 months from the date of receipt of a certified copy of this judgment. There will be no order as to costs.
Sd/-
**C.T.RAVIKUMAR JUDGE**
Sd/- **ANIL K.NARENDRAN JUDGE**
ami/12.7.17
//True copy// P.A.to Judge
