Kerala High Court

Nabeesa vs Sebastian Joseph @ Joy on 8 July, 2021

MACA NO. 1900 OF 2009
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          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
             THE HONOURABLE MR.JUSTICE C.S.DIAS
   THURSDAY, THE 8TH DAY OF JULY 2021 / 17TH ASHADHA, 1943
                       MACA NO. 1900 OF 2009
  AGAINST THE JUDGMENT IN OPMV 356/1998 OF     MOTOR ACCIDENT
                 CLAIMS TRIBUNAL,KALPETTA, WAYANAD
APPELLANT/PETITIONER:

         NABEESA
         AGED 55 YEARS,W/O.MOIDEEN,ERIYADAN,, THALAPUZHA
         P.O.,MANANTHAVADY TALUK,, WAYANAD DISTRICT.

         BY ADV SRI.N.J.ANTONY



RESPONDENTS/RESPONDENTS:

    1     SEBASTIAN JOSEPH @ JOY
          AGE NOT KNOWN,S/O.JOSEPH,, NADUKKUDIYIL
          HOUSE,PAYYAMPALLY,, KARTIKULAM,MANANTHAVADY TALUK,,
          WYNAD DISTRICT.(DRIVER CUM OWNER OF THE,
          AUTORICKSHAW NO.KL-12/9750)

    2     ORIENTAL INDIA INSURANCE CO.LTD.
          KANNUR CITY BRANCH,IST FLOOR,, RAZ BUILDING,SOUTH
          BAZAR,KANNUR., (POLICY NO.221916)

         BY ADV SMT.A.SREEKALA




     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 08.07.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA NO. 1900 OF 2009
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                          JUDGMENT

The appellant was the petitioner in O.P(MV)

No.356/1998 on the file of the Motor Accidents Claims

Tribunal, Kalpetta. The respondents in the appeal were

the respondents before the Tribunal.

2. The concise case in the claim petition, relevant

for the determination of the appeal, is: on 11.12.1997

while the appellant was travelling in an autorickshaw

bearing Reg.No.KL-12/9750 (vehicle) from Manathavady

to Valliyoorkavu, when the vehicle reached the Janatha

Stationary, the 1st respondent who was driving the vehicle

lost control and hit against on a post. The appellant

sustained serious injuries including a fracture on her

right patella. She was treated as an inpatient for a

period of three days at the District Hospital,

Mananthavady, and thereafter, at the Medical College

Hospital, Calicut. The appellant was a home maker and MACA NO. 1900 OF 2009

claimed a monthly income of Rs.1,500/-. The 1st

respondent was also the owner of the vehicle, which

was insured with the 2nd respondent. The appellant

claimed a total compensation of Rs.1,50,000/- from the

respondents.

3. The 1st respondent filed a written statement

contending that he did not drive the vehicle in a rash

manner, but in his attempt to save a child who

negligently crossed the road, the vehicle lost control and

hit the post. Therefore, there was no negligence on his

part.

4. The 2nd respondent filed a written statement

admitting that the vehicle had a valid insurance policy.

Nevertheless, it was contended that the amount of

compensation claimed was excessive.

5. The appellant examined herself as PW1 and

Exts.A1 to A7 series were marked through her in

evidence. The respondents produced and marked MACA NO. 1900 OF 2009

Exts.B1 to B3 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

recover an amount of Rs.11,682/- with interest at the

rate of 6% per annum from the date of petition till the

date of realisation along with proportionate costs from

the 2nd respondent.

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 and the learned counsel appearing for the 2 nd

respondent.

9. The sole question that emerges 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 MACA NO. 1900 OF 2009

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.A1 F.I.R and Ext.A4 AMVI report prove that

the accident occurred solely on account of the

negligence on the part of the 1st respondent. Admittedly,

the vehicle was insured with the 2nd respondent.

Therefore, the 2nd respondent is liable to indemnify the

liability of the 1st respondent caused due to the accident.

Notional income

12. The appellant had claimed that she was a home

maker earning a monthly income of Rs.1,500/-. The MACA NO. 1900 OF 2009

appellant was aged 55 years at the time of accident. The

Tribunal for absolutely no reason fixed the notional

income of the appellant at Rs.1,400/- per month.

According to me, the amount that was claimed by the

appellant as notional income is reasonable. Therefore, I

re-fix the notional income of the appellant at Rs.1,500/- as

claimed for in the claim petition.

Disability

13. The appellant had produced Ext.A6 disability

certificate which shows that she had a disability at 7%.

However, the Tribunal for the reason that the appellant

had not examined the Doctor who issued Ext.A6 disability

certificate fixed and the disability of the appellant at 3%,

that too after seeing the appellant who was examined as

PW1. I do not find any error in the disability assessed by

the appellant. Accordingly, I confirm the finding with

respect to the permanent disability of the appellant at

3%.

MACA NO. 1900 OF 2009

Loss of earnings

14. It is on record as per Ext.A3 wound certificate

and Ext.A6 disability certificate that the appellant had

sustained an injury on her patella and she had to wear a

cast for a period of more than one month. Therefore, I

hold that the appellant was incapacitated for a period of

three months. In such circumstances, in view of fixing of

the notional income of the appellant at Rs.1,500/- I re-fix

the compensation for 'loss of earnings' at Rs.4,500/-

instead of Rs.1,000/- fixed by the Tribunal.

Loss due to disability

15. The Tribunal had fixed the multiplier at 8. In

view of the fact that the appellant was aged 55 years and

taking into account the law laid by the Hon'ble Supreme

Court in Sarala Verma v Delhi Transport Corporation

[2010(2) KLT 802 (SC)] , the correct multiplier is '11'. MACA NO. 1900 OF 2009

Thus, in view of the re-fixation of the notional income of

the appellant, fixing the relevant multiplier at '11' and the

disability at 3%, I hold that the appellant is entitled for

compensation under the head 'loss due to disability' at

Rs.5,940/- instead of Rs.4,032/ fixed by the Tribunal.

Compensation for pain and suffering

16. The appellant had claimed an amount of

Rs.25,000/- under the head 'pain and suffering'.

However, the Tribunal only awarded an amount of

Rs.5,000/-. Considering the injury sustained by the

appellant, as discernible from Ext.A3 wound certificate

and Ext.A6 disability certificate, and that she was

hospitalised for a period of three days, I hold that the

appellant is entitled for compensation under the head

'pain and suffering' at Rs.10,000/-, i.e, an enhancement of

Rs.5,000/-.

MACA NO. 1900 OF 2009

Loss of earning power/amenities

17. The appellant had claimed an amount of

Rs.25,000/- under the above said head. Nonetheless ,

the Tribunal did not award any amount under the said

head. Considering the nature of injuries sustained by the

appellant and that she was incapacitated for a period of

three months and she now suffers from a permanent

disability of 3%, I hold that the appellant is entitled for

compensation under the head 'loss of amenities' at

Rs.5,000/-.

Other heads of claim

18. With respect to the other heads of

compensation, I find that the Tribunal has awarded

reasonable and just compensation.

19. On an overall re-appreciation of the pleadings

and materials on record and the law laid down in the

afore-cited decision, I am of the definite opinion that the MACA NO. 1900 OF 2009

appellant is entitled for enhancement of compensation as

modified and re-calculated above and given in the table

below for easy reference.

 SI         Head of claim               Amount      Amounts
                                     awarded by     modified
 .No                                 the Tribunal   and
                                      (in rupees)   recalculat
                                                    ed by this
                                                    Court

  1    Loss of earning                  1,000         4,500









  6.   Pain and suffering               5,000        10,000

 7.    Loss of amenities                 ---          5,000

 8.    Loss due to disability           4,032         5,940

       Total                           11,682         27,090

                                      ======        ======
 MACA NO. 1900 OF 2009

In the result, the appeal is allowed, in part, by

enhancing the compensation by a further amount of

Rs.15,408/- with interest at the rate of 6% per annum on

the enhanced compensation from the date of petition till

the date of deposit, after deducting the interest for a

period of 554 days, i.e, the period of delay in preferring

the appeal and as ordered by this Court on 30.3.2021 in

C.M.Appli. No.2185/2009, and proportionate costs. The

2nd respondent shall deposit the enhanced

compensation 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