Kerala High Court
Alias @ Agnes vs Rajesh M.P. & Others on 4 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 4TH DAY OF AUGUST 2021 / 13TH SRAVANA, 1943
MACA NO. 1326 OF 2009
AGAINST THE AWARDT IN OP(MV)NO. 1338/2002 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL, ALAPPUZHA
APPELLANT/PETITIONER IN OP(MV):
ALIAS @ AGNES,
W/O.JACOB,
'CHALINKAL, VADAICANAL WARD,
ALAPPUZHA.
BY ADV SRI.P.V.BABY
RESPONDENTS/RESPONDENTS IN OP(MV):
1 RAJESH M.P,
KUZHIKADU HOUSE,
KOTHAKULANGARA,
ANGAMALY P.O.
2 BALAKRISHNAN, S/O.KUNJUNNI,
THUMBARATHY VEEEDU,
MAMPRA DESOM,
KALLOOR THEKKUM MURI VILLAGE,
KORATTI P.O.,
THRISSUR
3 M/S ORIENTAL INSURANCE COMPANY LTD.,
CHALAKUDY P.O.
BY ADV.SMT.K.S.SANTHI
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 04.08.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA No.1326 of 2009
2
C.S.DIAS,J
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MACA No. 1326 of 2009
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Dated this the 4th day of August, 2021
JUDGMENT
The appellant was the petitioner in OP (MV)
No.1338 of 2002 on the file of the Motor Accidents
Claims Tribunal, Alappuzha. The respondents in the
appeal were the respondents before the Tribunal.
2. The concise facts, relevant for the determination
of the appeal, are: on 07.03.2002, while the appellant
was walking through the side of the Pongam - Mambra
road, a Scooter bearing registration No.KL 7/B 9084
driven by the 2nd respondent in a rash and negligent
manner hit the appellant. The appellant sustained
serious injuries, including an head injury and a fracture
of the left clavicle. She was treated as an in-patient at
the St.James Hospital, Chalakudy and, thereafter, at the
Ernakulam Medical Centre. The Scooter was owned by
MACA No.1326 of 2009
the 1st respondent and insured with the 3rd respondent.
The appellant was a manual labourer and earning a
monthly income of Rs.3,000/-. The appellant also
sustained a permanent disability. Hence, the appellant
claimed a total compensation of Rs.1,35,000/- from the
respondents.
3. The respondents 1 and 2 did not contest the
proceedings and were set ex-parte.
4. Although, the 3rd respondent entered
appearance, they did not file any written statement.
5. The appellant produced and marked Exts.A1 to
A13 and Ext.C1 disability certificate in evidence.
6. The Tribunal, after evaluating the pleadings
and materials on record, allowed the claim petition, in
part, by permitting the appellant to realise an amount of
Rs.98,500/- with interest at the rate of 7.5% per annum
from the date of petition till the date of realisation and a
cost of Rs.1,000/- from the 3rd respondent.
MACA No.1326 of 2009
7. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioner/appellant is in
appeal.
8. Heard Sri. A.N.Santhosh, the learned counsel
for the appellant/petitioner and Smt.K.S.Santhi, the
learned counsel appearing for the 3rd respondent-
insurance company.
9. The sole question that arises for consideration
in the appeal is whether the quantum of compensation
awarded by the Tribunal is reasonable and just?
10. Ext.A4 charge-sheet filed by the police after
investigation proves that the accident occurred solely on
account of the negligence of the 2 nd respondent.
Undisputedly, the 1st respondent was the owner and the
3rd respondent was the insurer of the vehicle. Therefore,
it is the 3rd respondent who is to indemnify the 2 nd
respondent of his liability to pay compensation.
11. The appellant had claimed that she was a
MACA No.1326 of 2009
manual labourer by profession and earning a monthly
income of Rs.3,000/- . The Tribunal fixed the notional
income of the appellant at Rs.1,500/- per month.
12. In Ramachandrappa v. Manager, Royal
Sundaram Alliance Insurance Company Limited
[(2011) 13 SCC 236], the Hon'ble Supreme Court has
fixed the notional income of a Coolie worker in the year
2004, at Rs.4,500/- per month.
Notional income
13. Following the ratio in the afore-cited decision
and considering the fact that the accident occurred in
the year 2002, I am of the opinion that the appellant's
notional income has to be fixed as claimed in the claim
petition at Rs.3,000/- per month.
Loss of earnings
14. It is accepted by the Tribunal in view of Ext.A5
wound certificate, Ext.A7 discharge card and Ext.C1
disability certificate that the appellant was indisposed
MACA No.1326 of 2009
for a period of six months.
15. In view of the re-fixation of the notional income
of the appellant at Rs.3,000/- per month, I re-fix the
compensation for 'loss of earnings' at Rs.18,000/,
instead of Rs.9,000/- awarded by the Tribunal.
Loss due to disability
16. The disability of the appellant was assessed by
the T.D. Medical College Hospital, Alappuzha, by a duly
constituted Medical Board. The Medical Board as per
Ext.C1 assessed the permanent disability of the
appellant at 30%. It was found that the appellant has
tension type head ache as sequelac of head injury and
non union fracture of the clavicle (left) with 90%
rigidity.
17. The Tribunal, for the reason that the members
of the Medical Board were not examined and that the
appellant can work and do things without the help of
any persons, scaled down the disability to 20%.
MACA No.1326 of 2009
18. In Rajkumar v. Ajayakumar [2011(1) KLT
620(SC)], the Honourable Supreme Court has held that
the disability of a person can be proved by examining
the Doctor who assessed the disability or getting the
disability assessed by a duly constituted Medical Board.
19. In view of the above declaration of law by the
Hon'ble Supreme Court and the fact that the appellant's
disability was assessed by a duly constituted three
member Medical Board, I hold that there is no legal
necessity to examine the members of the Medical Board
in order to prove the disability assessed by them as per
Ext.C1, as held by the Tribunal.
20. In Union of India and another v. Talwinder
Singh [2012 (5) SCC 480], the Honourable Supreme
Court has held that courts should not ordinarily
interfere with the opinion of the Experts, and it is
always advisable for the courts to leave the decision to
the Experts who are more familiar with the issue rather
MACA No.1326 of 2009
than expressing its general opinion
21. In the light of the fact that the Medical Board
by Ext.C1 has assessed the permanent disability of the
appellant at 30% and has found that she has a non union
fracture of the clavicle (left) with 90% rigidity and also
has a tension type head ache and further that she is a
manual labourer by profession, I am of the firm opinion
that the disability assessed by the Medical Board at 30%
ought not to have been interfered with by the Tribunal
by scaling it down by 10%. Therefore, I set aside the
finding and re-fix the permanent disability of the
appellant at 30% as per Ext.C1.
Multiplier
22. As the appellant was aged 45 years on the date
of accident, the relevant multiplier is '14' as laid down
in Sarala Varma and others v. Delhi Transport
Corporation and others [(2010) 2 KLT 802]. Hence,
the multiplier adopted by the Tribunal at '13' is
MACA No.1326 of 2009
erroneous and is re-fixed at '14'.
Loss due to disability
23. Taking into account the above-mentioned
factors namely, income of the appellant at Rs3,000/-,
her disability at 30% and multiplier at '14', I re-fix the
compensation for 'loss due to disability' at Rs.1,51,200/-
instead of Rs.46,800/- fixed by the Tribunal.
Loss of amenities
24. It is on record as per Ext. C1 disability
certificate that the appellant has suffered a permanent
disability at 30%. She also sustained an head injury with
fracture of left clavicle. She was treated as an in-patient
at two hospitals. Taking note of the of the above factors,
I re-fix the compensation for 'loss of amenities' at
Rs.20,000/- instead of Rs.2,000/- awarded by the
Tribunal.
Other heads of claim
25. With respect to the other heads of
MACA No.1326 of 2009
compensation, I find that the Tribunal has awarded
reasonable and just compensation.
26. On a comprehensive re-appreciation of the
pleadings, materials on record and the law referred to in
the afore-cited decision, I am of the definite opinion that
the appellant/petitioner is entitled for enhancement of
compensation as modified and recalculated above and
given in the table below for easy reference.
Sl. Heads of claim Amount awarded by Amounts
No the Tribunal (in modified and
rupees) recalculated
by this Court
1 Loss of earning 9,000/- 18,000/-
2 Transport 2,500/- 2,500/-
3 Damages to clothing 300/- 300/-
4 Bye-stander expenses 1,500/- 1,500/-
5 Expenses for extra nourishment 400/- 400/-
6 Medical expenses 21,000/- 21,000/-
7 Compensation for pain and 15,000/- 15,000/-
sufferings
8 Compensation for loss of 2,000/- 20,000/-
amenities
9 Loss due to disability 46800 1,51,200
98,500/- 2,29,900/-
rounded of to
Rs,2,30,000/-
MACA No.1326 of 2009
In the result, the appeal is allowed, in part, by
enhancing the compensation by a further amount of
Rs.1,31,500/- with interest at the rate of 7.5% per
annum on the enhanced compensation, from the date of
petition till the date of deposit, after deducting 168
days, i.e. the period of delay in preferring the appeal
and as ordered by this Court on 30.03.2021 in
C.M.Appl.No.1510 of 2009, and proportionate costs. The
3rd respondent is ordered to deposit the enhanced
compensation awarded in this appeal before the
Tribunal with interest and proportionate costs within a
period of sixty days from the date of receipt of a
certified copy of the judgment. The Tribunal shall
disburse the enhanced compensation to the appellant, in
accordance with law.
Sd/- C.S.DIAS,JUDGE
dlk 4.8.2021
