Kerala High Court
Remadevi vs J.Vasanthasenan & Ors on 2 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 2ND DAY OF JULY 2021 / 11TH ASHADHA, 1943
MACA NO. 1279 OF 2010
AGAINST THE ORDER/JUDGMENT IN OP(MV) 611/2000 OF MOTOR ACCIDENTS
CLAIMS TRIBUNAL , MAVELIKKARA, ALAPPUZHA
APPELLANT/PETITIONER:
REMADEVI, AGED 33 YEARS,VADAKKEVELIYIL
VEEDU,ULAVUKAD MURI,PALAMEL VILLAGE,NOORANADU PO,
MAVELIKKARA TALUK.
BY ADVS.
SRI.S.MOHANAN
SRI.R.REJI
SRI.M.V.THAMBAN
RESPONDENTS/RESPONDENTS:
1 J.VASANTHASENAN, DWARAKA HOUSE,
CHIRAKKADAVAM PO,KAYAMKULAM.(DELETED)
2 SREEKUMAR, S/O.KUTTAPPA KURUP,
SOMA SADANAM,VETTUVENI MURI, HARIPAD VILLAGE, PO HARIPAD.
(DELETED)
R1 AND R2 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF
THE APPELLANT VIDE ORDER DATED 22.3.2021 IN I.A.NO.1 OF
2021.
3 THE NEW INDIA ASSURANCE CO.LTD.,
KAYAMKULAM BRANCH, REPRESENTED BY THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CI.LTD., ERNAKULAM DIVISION,
KOTTAKKAL ARYAVAIDYASALA BUILDING, OPP. HOTEL DWARAKA,
M.G.ROAD, ERNAKULAM.
MACA NO. 1279 OF 2010 2
BY ADV SRI.PMM.NAJEEB KHAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 02.07.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA NO. 1279 OF 2010 3
JUDGMENT
The appellant was the petitioner in OP(MV) No.611 of
2000 on the file of the Motor Accidents Claims Tribunal,
Mavelikara. The respondents in the appeal were the
respondents before the Tribunal.
2. The concise facts in the claim petition, relevant for
the determination of the appeal are: on 15.9.1999, while the
appellant was travelling in a bus bearing Reg.No.KL-H-8067,
when the vehicle reached the Sivananda Asramam in
Kudassanad-Pathamkutty road, the vehicle overturned and
hit a boundary wall which was only due to the rash and
negligent driving of the vehicle by the 2 nd respondent. The
bus was owned by the 1st respondent and insured with the 3 rd
respondent. The appellant was a home maker. She sustained
serious injuries including a hang mans fracture C2. She was
treated as an inpatient at the NSS Medical Mission Hospital,
Pandalam from 15.9.1999 to 29.9.1999. Later she was
treated as an out patient at the Medical College Hospital,
Kottayam. The appellant fixed her notional income of
Rs.3,000/-. She claimed compensation from the respondents,
which was quantified at Rs.1,86,000/-.
3. The respondents 1 and 2 did not contest the
proceedings and were set ex parte.
4. The 3rd respondent filed a written statement,
admitting that the vehicle had a valid insurance policy. It
was contended that the appellant had no cause of action to
file the claim petition against the respondents. Hence, the
claim petition may be dismissed.
5. The appellant got herself examined as PW1 and
Exts.A1 to A17 in evidence.
6. The Tribunal, after analysing the pleadings and
materials on record, by the impugned award allowed the
claim petition in part, by permitting the appellant to realise
an amount of Rs.91,050/- with interest @ 7.5 % per annum
from the date of filing of the claim petition till the date of
realization from the respondents. The 3rd respondent was
directed to pay the compensation amount.
7. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioner is in appeal.
8. Heard, the learned counsel appearing for the
appellant/petitioner and the learned counsel appearing for
the 3rd respondent.
9. The sole question that emanates for consideration
in this appeal is whether the quantum of compensation
awarded by the Tribunal is reasonable and just.
10. A constitution Bench of the Hon'ble Supreme Court
in National Insurance Company Ltd. v. Pranay Sethi
[(2017) 16 SCC 680), has held that Section 168 of the
Motor Vehicles Act, 1988, deals with the concept of 'just
compensation' and the same has to be determined on the
foundation of fairness, reasonableness and equitability on
acceptable legal standards. The conception of 'just
compensation' has to be viewed through the prism of
fairness, reasonableness and non-violation of the principle of
equitability.
11. Ext.A3 charge sheet filed by the Nooranad Police
after investigation substantiates that the accident occurred
solely due to the rashness on the part of the 2 nd respondent.
Admittedly, the 1st respondent, was the owner of the vehicle,
which was insured with the 3rd respondent. Therefore, the
3rd respondent is liable to indemnify the 1 st respondent for
his liability to pay the compensation.
12. Ext.A4 wound certificate and Ext.A11 disability
certificate proves that the appellant sustained injuries due
to the accident and she had a hang mans fracture (fracture
of the lamina of the second servicle vertebra). As per
Ext.A11, the appellant was found to be having a disability at
17%. However, the Tribunal fixed the disability at 9%.
Admittedly, the appellant did not examine the
doctor who issued Ext.A11 disability certificate nor
got herself disability assessed by a medical board. In such
circumstances, I do not find any error in the disability
assessed by the Tribunal at 9%, which I confirm.
13. The appellant had claimed that she was a home
maker and had a notional monthly income of Rs.3,000/-.
Nonetheless, the Tribunal fixed the notional income at
Rs.2,500/-. In light of the law laid down in Rajendra Singh
v. National Insurance Company (2020 4 KLT 6), by the
Hon'ble Supreme Court, I fix the notional income of the
appellant at Rs.3,000/- per month.
Loss of earnings
14. Based on the injury sustained by the appellant, the
Tribunal held that she was incapacitated for a period of 4
months, which also I hold to be justifiable and proper. In
view of the refixation of the notional income of the appellant
at Rs.3,000/-, I enhance the compensation under the head
'loss of earnings' at Rs.12,000/- instead of Rs.10,000/- fixed
by the Tribunal.
Transportation expenses
15. The appellant had produced Ext.A14 series taxi
bills totaling to an amount of Rs.4777/- to prove the
transportation expenses. However, the Tribunal without any
justifiable reason fixed the transportation expenses at Rs.
2,000/-, which according to me is unreasonable and
erroneous. In view of the actual expenses incurred by the
appellant towards a transportation charges as reflected in
Ext.A14 series bills, I fix the transport expenses at
Rs.4,777/-.
Loss of amenities
16. The appellant had claimed an amount of
Rs.25,000/- towards loss of amenities. Taking into account
that the appellant was hospitalized for a period from
15.9.1999 to 21.9.1999 and that she has a permanent
disability of 9% and also that she has still continuing her
follow up treatment, I hold that the appellant is entitled for
compensation under the head 'loss of amenities' at
Rs.10,000/- instead of Rs.5,000/- fixed by the Tribunal.
Loss due to disability
17. In view of the refixation of the notional income of
the appellant at Rs.3,000/-, the disability at 9% and the
relevant multiplier being '17', I refix the compensation under
the head loss due to disability at Rs.55,080/-.
18. With respect to the other heads of compensation, I
find that the Tribunal has awarded reasonable and just
compensation.
19. On an over all re-appreciation of the pleadings and
materials on record, the law laid down in the aforecited
decisions, I am of the firm 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.
Head of claim Amount Amounts
Awarded by modified and
the Tribunal recalculated by
(in Rs.) this Court
Loss of earnings 10,000/- 12,000/-
Transportation 2,000/- 4,777/-
Clothing 250/- 250/-
Bystander expenses 1,000/- 1000/-
Extra nourishment 1,000/- 1000/-
Medical expenses 10,000/- 10,000/-
Pain and sufferings 15,000/- 15,000/-
Loss of amenities 5,000/- 10,000/-
Loss due to 45,900/- 55,080/-
disability
Total 90,150/- 1,09,107/-
In the result, the appeal is allowed in part, by
enhancing the compensation by a further amount of
Rs.18,957/- with interest at the rate of Rs.7.5% per annum
on the enhanced compensation from the date of petition till
the date of realisation along with proportionate costs. The 3 rd
respondent shall deposit the enhanced compensation amount
awarded in the appeal before the Tribunal with interest
and proportionate costs within a period of two months
from the date of receipt of a certified copy of this
judgment.
The Tribunal shall disburse the enhanced compensation
to the appellant/petitioner in accordance with law.
Sd/-
C.S.DIAS,
JUDGE
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