Vinod v. Alice Domenic & Ors. (MACA Nos. 2061 of 2014 and 2062 of 2014)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 16[TH] DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944`** ``` MACA NO. 2061 OF 2014 ``` ``` OP(MV) 1420/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANT/PETITIONER:`** ``` VINOD, S/O. KRISHNANKUTTY, AGED 34 YEARS, THARACKANAL HOUSE, IRUMPAYAM POST, VELLOOR VILLAGE, KOTTAYAM DISTRICT - 05. ``` ``` BY ADVS. SRI.SAJI.P.JOSEPH SRI.A.JOSEPH GEORGE ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 ALICE DOMENIC, AGED 56 YEARS, W/O. DOMENIC, 32/1860A (27/2121), ARAYATHEL HOUSE, PALARIVATTOM, EDAPALLY SOUTH VILLAGE, ERNAKULAM -25.`** ``` 2THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, MYDHILY MANDIRAM, JANATHA JUNCTION, PALARIVATTOM, KOCHI -682 025. ``` ``` R1 BY ADVS.SRI.SHAJI THOMAS SRI.JEN JAISON R2 BY ADV.SRI.P.JACOB MATHEW ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLYHEARD ON02.09.2022,ALONGWITHMACA.2062/2014,THECOURTON 16.09.2022 DELIVERED THE FOLLOWING: ``` MACAs 2061 & 2062 of 2014 2 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 16[TH]DAY OF SEPTEMBER 2022 / 25TH BHADRA,1944 ``` ## **`MACA NO. 2062 OF 2014`** ``` OP(MV) 2416/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM ``` ``` APPELLANT/PETITIONER: ``` ``` DIVYA, AGED 28 YEARS, W/O VINOD, THARACKANAL HOUSE, IRUMPAYAM POST, VELLOOR VILLAGE, KOTTAYAM DISTRICT - 05. ``` ``` BY ADV SRI.SAJI.P.JOSEPH ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 ALICE DOMENIC, AGED 56 YEARS W/O DOMENIC, 32/1860A(37/2121), ARAYATHEL HOUSE, PALARIVATTOM, EDAPPALLY SOUTH VILLAGE, ERNAKULAM - 25.`** ``` 2THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD., BRANCH OFFICE MYDHILY MANDIRAM, JANATHA JUNCTION, PALARIVATTOM, KOCHI - 682 025. ``` ``` R1 BY ADVS. SRI.SHAJI THOMAS SRI.JEN JAISON R2 BY ADV.SRI.P.JACOB MATHEW ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLYHEARD ON02.09.2022,ALONGWITHMACA.2061/2014,THECOURTON 16.09.2022 DELIVERED THE FOLLOWING: ``` MACAs 2061 & 2062 of 2014 3 ## **J U D G M E N T** These appeals arise out of the common award in OP(MV)Nos.1420 and 2416 of 2009 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The appellants are husband and wife and they are on the inadequacy of the compensation awarded by the Tribunal. 2. On 02.10.2008 at 11.15 a.m. the appellants were - travelling in their motorcycle through Thalayolaparambu Kanjiramattom road, and when they reached Chalakkapara Junction, KL-7/Q-1026 car driven by the 1[st] respondent in a rash and negligent manner dashed against their motorcycle and both of them fell down and sustained severe injuries. They were taken to Medical Trust Hospital, Ernakulam, where they were admitted and treated. Both of them suffered permanent disability also, due to the accident. The husband approached the Tribunal claiming compensation of Rs.15,00,000/-. But the Tribunal awarded only Rs.2,62,300/-. So he filed MACA No.2061 of 2014. The wife MACAs 2061 & 2062 of 2014 4 approached the Tribunal claiming compensation of Rs.14,80,000/-. But the Tribunal awarded only Rs.5,77,020/-. So she filed MACA No.2062 of 2014. 3. The 1[st] respondent was the owner-cum-driver of the offending car and the 2[nd] respondent was its Insurer. The accident, injuries and the policy of the offending vehicle are not in dispute. 4. PWs 1 and 2 were examined, Exts.A1 to A26, C1 and C2 were marked before the Tribunal. 5. Now let us have a reappraisal of the facts and evidence to find out whether any interference is warranted in the impugned awards. ## MACA No.2061 of 2014 6. The appellant herein, who is the husband, claims that he was a 29 year old Cook in Saudi Arabia earning monthly income of Rs.28,000/-. Due to the accident, he lost his job, as his Visa was cancelled as he was not able to join MACAs 2061 & 2062 of 2014 5 back. But it has come out in evidence that his Visa was only a visiting Visa for three months, and the accident had nothing to do with that. The Tribunal took his notional income as Rs.4,000/-. But going by **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]** , even a casual labourer in unorganised sector was eligible for a notional income of Rs.6,500/- in the year 2008. Applying that ratio, the income of the appellant could be fixed at Rs.6,500/- per month. So towards, loss of earning for six months, he was eligible to get Rs.39,000/-(6,500X6). After deducting Rs.24,000/- already paid, he is eligible to get Rs.15,000/- as enhanced compensation towards loss of earning. 7. He was hospitalised for 22 days. Towards attendant expenses, he was awarded Rs.300 per day. Since the accident was in the year 2008, Rs.500 per day is quite reasonable and so, he is entitled to get Rs.4,400/- as enhanced compensation for attendant expenses. MACAs 2061 & 2062 of 2014 6 8. Towards extra nourishment, he was awarded only Rs.2,500/-. Since he was hospitalised for 22 days and he suffered head injury with LOC and comminuted fracture of shaft of right femur and fracture of scaphoid right wrist, towards extra nourishment, this Court is inclined to award Rs.2,500/- more under the head ‘extra nourishment’. 9. For pain and suffering, he was awarded Rs.25,000/-. Considering the nature of injuries and the period of hospitalisation, this Court is inclined to award Rs.10,000/- more under the head ‘pain and suffering’. 10. Towards permanent disability, Rs.81,600/- was awarded by the Tribunal taking his notional income as Rs.4,000/-. We have fixed his notional income at Rs.6,500/-. So the compensation for permanent disability of 10% could be assessed as Rs.1,32,600/- (6,500x12x 17x10/100). He was already paid Rs. 81,600/-. So he is eligible to get the balance Rs.51,000/as enhanced compensation towards permanent disability. MACAs 2061 & 2062 of 2014 7 11. Towards loss of amenities, he was awarded Rs.10,000/-. Considering the disability of 10% he had suffered in the accident, this court is inclined to award Rs.5,000/more as enhanced compensation for loss of amenities. 12. Under all other heads the compensation awarded seems to be reasonable. |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Difference to be<br>drawn as<br>enhanced<br>compensation| |---|---|---|---| |Loss of earning|Rs.24,000/-|Rs.39,000/-|Rs.15,000/-| |Attendant<br>expenses|Rs.6,600/-|Rs.11,000/-|Rs.4,400/-| |Extra<br>nourishment|Rs.2,500/-|Rs.5,000/-|Rs.2,500/-| |Pain and<br>suffering|Rs.25,000/-|Rs.35,000/-|Rs.10,000/-| |Permanent<br>disability|Rs.81,600/-|Rs.1,32,600/-|Rs.51,000/-| |Loss of<br>amenities|Rs.10,000/-|Rs.15,000/-|Rs.5,000/-| |Total|||Rs.**87,900**/-| ## 13. In the result, the appellant in MACA No.2061 of MACAs 2061 & 2062 of 2014 8 2014 is entitled to get enhanced compensation of Rs.87,900/- (15,000 + 4,400 + 2,500 + 10,000 + 51,000 + 5,000) (Rupees Eighty Seven Thousand and Nine Hundred only). ## MACA No.2062 of 2014 14. The wife is the appellant herein. She was a 23 year old Ayurveda Doctor doing her Internship during the period of accident. According to her, she was getting stipend of Rs.6,500/-. Learned counsel appearing for the 2[nd] respondent Insurer is amenable to fix her notional income at Rs.6,500/-. Though she claims Rs.20,000/- per month, since her own claim in the claim petition is Rs.6,500/-, her notional income can be fixed at the rate of Rs.6,500/-. She suffered very serious injuries and she was hospitalised for 56 days. She suffered disability of 18% as seen from Ext.C2 Certificate. The Tribunal assessed her loss of income for 7 ½ months. Considering the nature of injuries she had suffered, and the period of hospitalisation, this Court is inclined to MACAs 2061 & 2062 of 2014 9 assess compensation for loss of earning for 8 months @ Rs.6,500/- per month. So she is eligible to get Rs.52,000/-. Since she was already paid Rs.30,000 for loss of earning, she is eligible to get the balance amount of Rs.22,000/- as enhanced compensation for loss of earning. 15. Towards extra nourishment, she was awarded only Rs.5,000/-. Since she was hospitalised for 56 days, this Court is inclined to award Rs.2,500/- more under the head ‘extra nourishment’. 16. Towards attendant expenses, she was awarded only Rs.15,000/-, though she was hospitalised for 56 days. So, this Court is inclined to award Rs.5,000/- more under the head ‘attendant expenses’. 17. For pain and suffering, she was awarded Rs.40,000/-. Considering the nature of injuries and the period of hospitalisation, this Court inclined to award Rs.10,000/- more under the head ‘pain and suffering’. MACAs 2061 & 2062 of 2014 10 18. For permanent disability of 18%, her notional income was taken as Rs.4,000/-. We have fixed her notional income at Rs.6,500/-. So compensation for permanent disability of 18% can be assessed as Rs.2,52,720/(6,500x12x18x18/100). She was already given Rs.1,55,520/-. So she is eligible to get the balance amount of Rs.97,200/- as enhanced compensation for permanent disability. 19. For disfiguration of her right hand, the Tribunal awarded Rs.25,000/-. She was a 23 year old young Ayurveda Doctor. So the disfiguration of her right hand matters much. So this Court is inclined to award Rs.20,000/more as enhanced compensation for disfiguration. 20. Towards loss of amenities, though her claim was Rs.3,00,000/-, the Tribunal awarded only Rs.10,000/-. She was hospitalised for 56 days, suffered permanent disability of 18% and also disfiguration of her right hand. As an Ayurveda Doctor and also as a housewife, it will affect her MACAs 2061 & 2062 of 2014 11 amenities in life. So Rs.15,000/- is awarded as enhanced ## compensation for loss of amenities. |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Difference to be<br>drawn as<br>enhanced<br>compensation| |---|---|---|---| |Loss of earning|Rs.30,000/-|Rs.52,000/-|Rs.22,000/-| |Attendant<br>expenses|Rs.15,000/-|Rs.20,000/-|Rs.5,000/-| |Extra<br>nourishment|Rs.5,000/-|Rs.7,500/-|Rs.2,500/-| |Pain and<br>suffering|Rs.40,000/-|Rs.50,000/-|Rs.10,000/-| |Permanent<br>disability|Rs.1,55,520/-|Rs.2,52,720/-|Rs.97,200/-| |Loss of<br>amenities|Rs.10,000/-|Rs.25,000/-|Rs.15,000/-| |Compensation<br>for disfiguration|Rs.25,000/-|Rs.45,000/-|Rs.20,000/-| |Total|||Rs.**1,71,700**/-| 21. In the result, the appellant is entitled to get enhanced compensation of Rs.1,71,700/- (22,000 + 5,000 + 2,500 + 10,000 + 97,200 + 15,000 + 20,000) (Rupees One Lakh Seventy One Thousand and Seven Hundred only). 22. The 2[nd] respondent-Insurer is directed to deposit MACAs 2061 & 2062 of 2014 12 Rs.87,900/(Rupees Eighty Seven Thousand and Nine Hundred only) in MACA No.2061 of 2014 and Rs.1,71,700/(Rupees One Lakh Seventy One Thousand and Seven Hundred only) in MACA No.2062 of 2014 in the Bank account of the respective appellants with 7% interest per annum from the date of petition till realisation (excluding 233 days of delay in filing the appeal) within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the respective appellants towards Tax, balance court fee and legal benefit fund. These appeals are allowed accordingly. No order as to costs. Sd/- ## **SOPHY THOMAS JUDGE** DSV/03.09.2022