VASANTHAKUMARY v. SHYAM and others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT` ## `THE HONOURABLE MRS. JUSTICE SOPHY THOMAS` ``` MONDAY, THE 3 [ RD ] DAY OF JUNE 2024 / 13TH JYAISHTA, 1946 ``` ## `MACA NO. 2304 OF 2009` ``` AGAINST THE ORDER/JUDGMENT DATED 26.04.2007 IN OPMV NO.295 OF 2000 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,THODUPUZHA ``` ``` APPELLANT/PETITIONER: ``` ``` VASANTHAKUMARY,W/O. SUKUMARAN AGED 43 YEARS, PUTHUPARAMBIL HOUSE,, PACHADI P.O., PACHADY KARA, UMMAKKADA BHAGAM,, KALKOONTHAL VILLAGE. BY ADV SRI.S.DILEEP (KALLAR) ``` ## `RESPONDENTS/RESPONDENTS:` - `1 SHYAM, S/O.JAYANANDAN SHYAM BHAVAN, NEDUMKANDAM P.O.,, NEDUMKANDAM.` - `2 K.A.VARKEY S/O.MATHEW KOORKKAKUNNEL HOUSE, (BLOCK NO.468),, COMBAYAR P.O., NEDUMKANDAM (VIA).` - `3 THE NEW INDIA INSURANCE COMPANY LTD., REP. BY ITS BRANCH MANAGER, KATTAPPANA.` - `4 P.H.AZEEZ PARACKAL HOUSE BALAGRAM P.O., SANYASIODA, UDUMBANCHOLA TALUK.` - `5 K.M.VARKEY S/O.MATHEW KAIKKAKUNNEL, COMBAYAR P.O., IDUKKI.` ``` BY.ADV.SRI.PMM NAJEEB KHAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA NO.2304 OF 2009 2 ## **`J U D G M E N T`** ``` This appeal is at the instance of the claimant in OP(MV) No.295 of 2000 on the file of Motor Accidents Claims Tribunal, Thodupuzha impugning the award on the ground of inadequacy of compensation. ``` ``` 2. The appellant/claimant met with a road traffic accident on 27/1/1999 while she was travelling in KL-6A/2215 jeep from Palani to Nedumkandam. When the jeep reached at Theni, due to the rash and negligent driving of the jeep by the 1 st respondent, the right side of the jeep happened to rub against a lorry coming from opposite direction, so that a hook like object from the right side of the lorry hit on the body of the appellant, and she sustained serious injuries including type III A compound ``` MACA NO.2304 OF 2009 3 ``` fracture of lateral femoral condyle and ``` ``` comminuted fracture of patella of right knee. Wound debridement, total patellectomy, ``` ``` quadriceps repair, open reduction and internal ``` ``` fixation of lateral femoral condyle with cancellous screws were all done, and she was hospitalized for 24 days on three different spells. She suffered 8% disability due to the injuries suffered in the accident. She ``` ``` approached the Tribunal claiming compensation of Rs.2 lakh, but learned Tribunal awarded only Rs.54,000/-, against which the appellant has come up with this appeal. ``` ``` 3. The 1 st respondent was the driver of the offending jeep, 2 nd respondent and 4 th respondent were its previous owners, the 5 th respondent was the insured owner and the 3 rd respondent ``` MACA NO.2304 OF 2009 4 ``` was the insurer of the jeep. ``` ``` rd 4. The 3 respondent-insurer entered ``` ``` appearance through counsel and submitted that there was no insurance policy for the offending jeep with them, and so they have no liability to compensate the appellant. The 1 st respondent ``` ``` driver remained ex-parte before the tribunal as well as before the appellate court. The 5 th respondent insured owner contested the case before the tribunal, and he filed a written statement admitting ownership of the offending jeep, and he also admitted that, the offending jeep was not insured with the 3 rd respondent insurer. ``` ``` 5. In the appeal, though service was complete on 5 th respondent, he opted to remain ``` ``` absent. ``` MACA NO.2304 OF 2009 5 ``` 6. Now this Court is called upon to answer whether there is any illegality, irregularity or impropriety in the impugned award warranting interference by this Court. ``` ``` 7. Heard learned counsel for the appellant and learned counsel for the 3rd respondent- insurer. ``` `8. The 3 rd respondent-insurer would submit` ``` that there was no insurance policy issued by them for the offending jeep, and the tribunal ``` ``` also found that the offending jeep had no insurance policy. So, the 3 rd respondent is an ``` ``` unnecessary party, as far as this appeal is concerned. ``` `9. Learned counsel for the appellant would` ``` submit that learned Tribunal found that the ``` ``` accident occurred due to the negligence of the ``` MACA NO.2304 OF 2009 6 ``` drivers of both the jeep and the lorry, and so learned Tribunal reduced the compensation by 50% and directed the 5 th respondent to pay Rs.54,000/- to the appellant. According to the appellant in fact they were eligible to get the entire compensation of Rs.1,08,000/- without any reduction, and there was no reason for the tribunal to reduce it by 50%. ``` ``` 10. On going through the records and ``` ``` evidence it could be seen that, the First Information Statement was lodged against the ``` ``` driver of the jeep, but no final report was ``` ``` filed. There is nothing to show that either the jeep driver or the lorry driver was charged by police for rash and negligent driving. But since there was evidence to show that the lorry and the jeep were coming from opposite ``` MACA NO.2304 OF 2009 7 ``` directions, learned Tribunal reached the conclusion that, the drivers of both the vehicles were equally responsible for the accident, and so only 50% liability had to be cast upon the jeep driver. Since the driver, owner or insurer of the lorry were not made parties, either before the tribunal or before the appellate court, no direction can be given against them, to pay the balance 50% to the appellant. So this court finds no reason to interfere with the finding of the tribunal that ``` ``` both the drivers contributed equally towards the accident, and so the liability of the driver and the owner of the jeep is only 50%. ``` ``` 11. Learned counsel for the appellant is ``` ``` challenging the quantum of compensation awarded ``` MACA NO.2304 OF 2009 8 ``` by the tribunal on the ground that, the notional income taken by the tribunal was on the lower side. According to her, the appellant ``` ``` was a housewife, and her monthly income was stated to be Rs.2,500/-. But learned Tribunal fixed her notional income as Rs.2,000/-. She ``` ``` would rely on the decision Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance ``` ``` Company Limited [AIR 2011 SC 2951] , to say that ``` ``` even a coolie worker was eligible to get his notional income fixed @ Rs.7,000/- per month in ``` ``` the year 1999. So based on Ramachandrappa’s ``` ``` decision cited above and the household services ``` ``` of the appellant, this Court is inclined to accept her monthly income as Rs.2,500/- as ``` ``` claimed by her. ``` ``` 12. Learned Tribunal assessed loss of ``` MACA NO.2304 OF 2009 9 ``` earning for 12 months @ Rs.2,000/- per month. At the rate of Rs.2,500/- for 12 months, she has to get Rs.30,000/-. After deducting ``` ``` Rs.24,000/- already awarded, she will get the balance amount of Rs.6,000/-. ``` ``` 13. She suffered 8% disability. Taking her monthly income as Rs.2,500/-, the disability compensation can be re-assessed as Rs.36,000/-. After deducting Rs.28,800/- already awarded, she will get the balance amount of Rs.7,200/-. ``` ``` 14. Towards loss of amenities, no amount was awarded by the tribunal. Since she had suffered type III A compound fracture of lateral femoral condyle and comminuted fracture ``` ``` of patella of right knee for which total patellectomy was done, resulting in 8% disability. So this court is inclined to award ``` MACA NO.2304 OF 2009 10 ``` Rs.5,000/- for loss of amenities. ``` ``` 15. Towards damages to clothing, no amount ``` ``` was awarded by the tribunal. Since the accident was in the year 1999, this court is inclined to award Rs.300/- for damages to clothing. ``` ``` 16. The compensation awarded under all other heads seems to be reasonable, and hence it needs no modification. ``` ``` 17. The enhanced compensation awarded in this ``` ``` appeal is stated in the table below:- ``` |Head of claim<br>(1)|Amount awarded<br>by the Tribunal<br>(2)|Amount awarded<br>in appeal<br>(3)|Difference to be<br>drawn as<br>enhanced<br>compensation<br>(5)| |---|---|---|---| |Loss of earning|24,000/-|30,000/-|6,000/-| |Disability|28,800/-|36,000/-|7,200/-| |Loss of amenities|–|5,000/-|5,000/-| |Damages to<br>clothing|-|300/-|300/-| |Total 18,500/-|||| MACA NO.2304 OF 2009 11 ``` 18. So the appellant is entitled to get enhanced compensation of Rs.18,500/-, and by reducing it by 50%, she will get Rs.9,250/-. ``` ``` 19. The 5 th respondent owner is directed to deposit the enhanced compensation of Rs.9,250/- in the bank account of the appellant, with 6% interest per annum, from the date of petition till the date of deposit (excluding 720 days of delay in filing the appeal) before the Motor Accidents Claims Tribunal, Thodupuzha within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to the appellant after deducting the liabilities, if any, towards Tax, balance court fee and legal benefit fund etc. ``` MACA NO.2304 OF 2009 12 ``` The appeal is allowed to the extent as above, and no order is made as to costs. ``` ``` Sd/- ``` ``` SOPHY THOMAS, JUDGE ``` ``` ska ```