Kerala High Court
Susheela vs Suju on 11 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
THURSDAY, THE 11TH DAY OF APRIL 2024 / 22ND CHAITHRA, 1946
MACA NO. 612 OF 2017
[AGAINST THE AWARD DATED 25/5/2015 IN OP(MV) NO.1983/2012 PASSED
BY THE MACT, KOLLAM]
APPELLANT/PETITIONER:
SUSHEELA
AGED 56 YEARS
D/O. LEKSHMIKUTTY, LAKSHAM VEEDU COLONY,HOUSE NO. 7,
KILIKOLLOOR, KOLLAM.
BY ADVS.
SRI.C.P.ANIL RAJ
SRI.C.RAJENDRAN
SMT.SREEVIDYA R.S
RESPONDENTS/RESPONDENTS:
1 SUJU
S/O. KUMARAN, KAZHAKKOOTTATHU PADINJATTATHIL,
KUREEPUZHA CHERRY, KAVANAD P.O, KOLLAM - 3, PIN -
691003.
2 SUDHAKARAN PILLAI
S/O. RAGHAVAN PILLAI, LEKSHMI BHAVAN, K.R.N. NAGAR
21,PIRAVOOR KIZHAKKATHIL, SAKTHIKULANGARA P.O,KOLLAM -
691581
3 THE MANAGER
NATIONAL INSURANCE CO.LTD,PARAMESWARA PILLAI BHAVAN,
HOSPITAL ROAD,KOLLAM BRANCH - 691 001.
BY ADV SMT.P.A.REZIYA-R3
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 11.04.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA NO. 612 OF 2017 2
JUDGMENT
The appellant herein is the claimant in OP(MV) No.1983 of 2012 on the file of Motor Accidents Claims Tribunal, Kollam, challenging the award as the quantum of compensation is on the lower side.
2. On 17/10/2007 at 3.00 pm, the appellant was hit by KL-2 V 4272 motorcycle ridden by the 2nd respondent in a rash and negligent manner. She sustained serious injuries including compound fracture of left leg lower 1/3rd and her left leg was deformed. She was admitted and treated in the hospital for 15 days in total. She was working in a cashew factory earning monthly income of Rs.6,000/-. She approached the Tribunal claiming compensation of Rs.1,50,000/-, but the Tribunal awarded only Rs.37,333/-, and hence this appeal.
3. The 1st respondent was the owner of the MACA NO. 612 OF 2017 3 offending motorcycle, the 2nd respondent was its rider and the 3rd respondent its insurer. The 3rd respondent insurer contested the case, but admitted the policy.
4. In the appeal, notice to respondents 1 and 2 was dispensed with, since the 3rd respondent insurer entered appearance through counsel and admitted the policy.
5. Heard learned counsel for the appellant and learned counsel for the 3rd respondent/insurer.
6. The appellant is challenging the award mainly on the ground that, learned Tribunal refused to accept her monthly income as Rs.6,000/- though PW2 the Manager of her employer was examined to prove her job and income. Exhibit A13 document was produced by PW2 to show that the appellant was working in a cashew factory drawing monthly income MACA NO. 612 OF 2017 4 of Rs.6,000/-.
7. Learned counsel for the appellant would submit that, even without that document going by the decision Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951], she was eligible to get her notional income fixed @ Rs.6,000/-. Learned Tribunal did not award any amount under the head loss of earnings, finding that, since she was on ESI leave, she might have received salary during the period of leave. PW2 deposed before the Tribunal that, the appellant was on ESI leave from 17/10/2007 till 5/7/2009. But, no records were produced to show the period of leave or to show any loss of income during that period. Considering the nature of the injuries suffered by the appellant, and the period of hospitalization, this Court is inclined to take, a period of eight months for computing compensation MACA NO. 612 OF 2017 5 for loss of earning. Even if she had received salary/wages during that period, she lost that leave only because of that accident. So considering the loss of leave, she can be compensated @ Rs.6,000/- per month for a period of 8 months. So she is entitled to get Rs.48,000/-.
8. Learned Tribunal found that, since she was employed till her superannuation, there was no loss of salary due to the disability if any suffered by her. But considering her functional disability after superannuation, 4% reduction in her earning capacity was taken into account by the Tribunal and an amount of Rs.6,720/- was awarded. In the year 2007, the age of superannuation was 55. So the multiplier applicable was 11. Taking her monthly income as Rs.6,000/- compensation for loss of earning capacity due to 4% functional disability could be assessed as Rs.31,680/- (6,000x12x11x4%). MACA NO. 612 OF 2017 6 After deducting Rs.6,720/- already awarded, she is entitled to get the balance amount of Rs.24,960/-.
9. Towards loss of amenities, the Tribunal awarded only Rs.2,240/-. she was a 52 year old lady at the time of accident, and she suffered compound fracture of left leg lower 1/3rd and her left leg was deformed also. Considering that aspect, this Court is inclined to award Rs.10,000/-, more towards loss of amenities.
10. Towards bystander expenses, the Tribunal awarded only Rs.1,500/-, though the appellant was hospitalised for 15 days. Since she suffered compound fracture of left leg with deformity, even after discharge, she might have been under attention of a bystander, considering that aspect this Court is inclined to award Rs.1,000/- more, towards bystander expenses.
MACA NO. 612 OF 2017 7
11. The compensation awarded under all other heads seems to be reasonable, and hence it needs no modification.
12. The enhanced compensation awarded in this appeal is stated in the table below:-
Amount Amount
Head of claim Difference to be
awarded by awarded in
drawn as enhanced
the Tribunal appeal compensation
48,000/-
Loss of earning - [6,000x8] 48,000/-
Compensation 31,680/-
for loss of 6,720/- [6,000x12x11x 24,960/-
earning power 4%]
Loss of
2,240/- 12,240/- 10,000/-
amenities
Bystander
1,500/- 2,500/- 1,000/-
expenses
TOTAL 83,960/-
13. So the appellant is entitled to get
enhanced compensation of Rs.83,960/-
MACA NO. 612 OF 2017 8
[48,000+24,960+10,000+1,000] as enhanced
compensation.
14. The 3rd respondent/insurer is directed to deposit the enhanced compensation with interest @ 9% per annum, from the date of petition till the date of deposit (excluding 512 days of delay in filing the appeal) before the Motor Accidents Claim Tribunal concerned 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.
The appeal is allowed to the extent as above, and no order is made as to costs.
Sd/-
SOPHY THOMAS, JUDGE ska