Visalakshy @ Shalini v. Vasudevan Nair (deleted) / Harinarayanan (deleted) and New India Assurance Company Ltd.

_**1**_ ## _**MACA. No.195/2015**_ **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:17459 ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` TUESDAY, THE 18[TH] DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946 ``` ``` MACA NO. 195 OF 2015 ``` ``` AGAINST THE AWARD DATED IN OPMV NO.151 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD ``` ## **`APPELLANT/PETITIONER:`** ``` VISALAKSHY @ SHALINI AGED 47 YEARS, W/O.ACHUTHANKUTTY, PULAKKAT HOUSE, PALAYANKAD, OLASSERI P.O., KODUMBU, PALAKKAD DISTRICT. ``` ``` BY ADV SRI.BABY MATHEW ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 VASUDEVAN NAIR [DELETED] S/O.NARAYANAN NAIR, PULAKKAD HOUSE, KODUMBU, PALAKKAD-678551 (R.C OWNER OF MOTOR CYCLE REG NO.KL-9/M-8533)`** - **`2 HARINARAYANAN [DELETED] S/O.KESAVAMENON, SREELAKSHMI, PULAKKAT HOUSE, PALAYANKAD, OLASSERI P.O., KODUMBU, PALAKKAD.`** - **`3 NEW INDIA ASSURANCE COMPANY LTD. NS TOWERS, NEAR STADIUM BUS STAND, 25, PALAKKAD (INSURER OF MOTOR CYCLE REG NO.KL-9/M-8533)`** ``` [RESPONDNETS 1 AND 2 DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 23.11.2022] ``` ``` BY ADVS. RAJIT SRI.M.RAJAGOPALAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _**MACA. No.195/2015**_ _**2**_ **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:17459 ``` ## J U D G M E N T Dated this the 18[th] day of February, 2025 The petitioner in O.P.(M.V.) No.151/2009 on the file of the Motor Accident Claims Tribunal, Palakkad is the appellant herein. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal). 2. The petitioner filed the above O.P. under Section 166 of the Motor Vehicles Act, r/w Rule 371 of MV Rules 1989, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 16.9.2007. According to the petitioner, on 16.9.2007 at about 9.30 a.m., while she was travelling pillion on a motor bearing registration No.KL-9M/8533 ridden by the 2[nd] respondent, he lost control of the motor cycle and as a result of which it overturned and she sustained serious injuries. 3. The 1[st] respondent is the owner, the 2[nd] respondent is the rider and 3[rd] respondent is the insurer of the offending vehicle. According to the petitioner, the accident occurred due to the negligence of the rider of the offending vehicle. The quantum of compensation claimed in the O.P. is _**MACA. No.195/2015**_ _**3**_ **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:17459`** Rs.4,00,000/-. 4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence on the part of the driver of the offending vehicle. 5. The evidence in the case consists of the oral testimony of PW1 and documentary evidence Exts.A1 to A15 series. No evidence was adduced by the respondents. 6. After evaluating the evidence on record, the Tribunal found negligence on the part of the driver of the offending vehicle, awarded a total compensation of Rs.3,32,800/- and directed the insurer to pay the same. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner preferred this appeal. 8. Now the point that arises for consideration is the following: _Whether the quantum of compensation awarded by the_ _Tribunal is just and reasonable?_ 9. Heard Sri. Baby Mathew, the learned Counsel appearing for the petitioner/appellant, and Sri.Rajit, the learned Standing Counsel for the 3[rd] respondent. _**MACA. No.195/2015**_ **==> picture [57 x 57] intentionally omitted <==** _**4**_ ``` 2025:KER:17459 ``` 10. The Point: In this case the accident as well as valid insurance policy of the offending vehicle are admitted. One of the contentions raised by the learned counsel for the petitioner is regarding the income of the petitioner as fixed by the Tribunal. According to him, the petitioner was a coolie, earning Rs.3,000/-per month. The Tribunal fixed her monthly income at Rs.3.000/-. 11. As per the dictum laid down by the Hon’ble Supreme Court in the decision in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ [2011 (13) SCC 236], the notional income of a coolie, in the year 2007 will come to Rs.6,000/-. Therefore, the learned counsel prayed for fixing the notional income of the petitioner at Rs.6,000/-. The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable. Since the notional income of a coolie, in the year 2007 will come to Rs.6,000/-, in order to award just and reasonable compensation, in the light of a dictum laid down in the decision of the Hon’ble Supreme Court in **Ramachandrappa (supra)** , the notional income of the petitioner is liable to be fixed as that of a coolie, at Rs.6,000/-. 12. In the accident the petitioner sustained the following injuries: _**MACA. No.195/2015**_ _**5**_ ``` 2025:KER:17459 ``` **==> picture [57 x 57] intentionally omitted <==** - _“1) Fracture right occipital and right temporal bones with right temporo-parietal and left frontal extradural haematoma._ - _2) Nasal bleed._ - _3) X-ray investigation shows fissured fracture right occipital region.”_ 13. As per Exhibit A1 disability certificate issued by PW1, the petitioner suffered 8% permanent physical disability. The Tribunal, however, scaled down the percentage of disability of the petitioner to 5%, without assigning valid and cogent reasons. The law is settled that, if the Tribunal is not satisfied with the disability certificate produced by the petitioner, the remedy is to refer him to a medical board or higher Authority.(See **Manikantan G. v. Janardhanan Nair and Others** [2021 (5) KHC 305]. Having not done so, the Tribunal was not justified in scaling down the percentage of disability from what is shown in the disability certificate. I do find any grounds to disbelieve the said disability and as such the permanent physical disability of the petitioner is fixed as 8%. 14. On the date of accident, the petitioner was aged 42 years. Therefore, 25% of the monthly income is to be added towards future prospects, as held in the decision in **National Insurance Co. Ltd v. Pranay** _**MACA. No.195/2015**_ _**6**_ **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:17459 ``` **Sethi** [(2017) 16 SCC 680] and the multiplier to be applied is 14, as held in **Sarla Verma v. Delhi Transport Corporation,** [(2009) 6 SCC 121]. In the above circumstances, the loss of disability will come to Rs.1,51,200/-. 15. Towards loss of earning, the Tribunal has awarded only Rs.18,000/- being the income for 6 months @Rs.3,000/-. Since the notional income of the petitioner is re-fixed at Rs.6,000/-, towards loss of earning he is entitled to get a sum of Rs.36,000/- (6000 x 6 months). 16. The learned counsel for the petitioner submitted that the Tribunal has not awarded any compensation towards the head 'loss of amenities of life'. 17. The petitioner sustained very serious injuries in the accident and was treated as inpatient for 20 days. Because of the injuries sustained, the percentage of disability suffered and the length of treatment undergone by the petitioner, I hold that the petitioner is entitled for compensation for 'loss of amenities of life' and a sum of Rs.20,000/- will be a reasonable compensation on that head. 18. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable. 19. Therefore, the petitioners/appellants are entitled to get a total _**MACA. No.195/2015**_ _**7**_ **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:17459`** compensation of Rs.4,98,200/-, as modified and recalculated above and given in the table below, for easy reference: |**Sl.**<br>**No.**|**Head of Claim**|**Amount awarded**<br>**by Tribunal (in**<br>**Rs.)**|**Amount Awarded in**<br>**Appeal (in Rs.)**| |---|---|---|---| |1|Loss of earning|18,000/-|36,000/-(6000x6)| |2|Medical & miscellaneous<br>expense|2,24,000/-|2,24,000/-| |3|Future treatment|10,000/-|10,000/-| |4|Bystander expenses|4,000/-|4,000/-| |5|Transportation expenses|4,000/-|4,000/-| |6|Extra nourishment|3,500/-|3,500/-| |7|Damage to clothing|500/-|500/-| |8|Pain and suffering|30,000/-|30,000/-| |9|Loss of reduction in earning<br>capacity|10,000/-|10,000/-| |10|Compensation for disability|28,800/-|1,51,200/-| |11|Loss of amenities of life|Nil|25,000/-| ||**Total**|**3,32,800/-**|**4,98,200/-**| ||Enhanced Rs.1,65,400/-||| 20. In the result, this Appeal is allowed in part, and Respondent No.3 is directed to deposit a total sum of Rs.4,98,200/- (Rupees four lakh ninety eight thousand two hundred only), less the amount already deposited, if any, along with interest @ 8% per annum, excluding interest for a period of 510 days, the period of delay in filing the appeal, with proportionate costs, within _**MACA. No.195/2015**_ _**8**_ **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:17459 ``` a period of two months from today. On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioner, excluding court fee payable, if any, without delay, as per rules. Sd/- C. PRATHEEP KUMAR, JUDGE sou.