Lilly @ Eliamma vs Sajeeshkumar.M
2021 Latest Caselaw 15006 Ker

MACA No.563 of 2012                   1


              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
             THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
      FRIDAY, THE 16TH DAY OF JULY 2021 / 25TH ASHADHA, 1943
                          MACA NO. 563 OF 2012
 AGAINST THE AWARD IN OPMV No.766/2008 DATED 22.6.2011 OF MOTOR
          ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD
APPELLANT/PETITIONER:

             LILLY @ ELIAMMA
             W/O.MATHEW PUNNAPUZHA HOUSE PANJAL DESOM, PANJAL
             VILLAGE THALAPPILLY TALUK THRISSUR DISTRICT

             BY ADV SRI.SHEJI P.ABRAHAM



RESPONDENTS/RESPONDENTS:

     1       SAJEESHKUMAR M.
             S/O.SASIDHARAN M., MANIKKINNIYIL HOUSE PALAPPURAM
             DESOM, OTTAPALAM VILLAGE PIN 679 315 OTTAPPALAM TALUK
             PALAKKAD DISTRICT (DRIVER OF KL 9F 4599 TEMPO)

     2       K.RAMAKRISHNAN
             S/O.PERUMAL, KARATHODY HOUSE, SRK NAGAR P.O
             OTTAPPALAM,PALAKKAD PIN 679 320 (OWNER OF KL 9F 4599
             TEMPO)

     3       UNITED INDIA INSURANCE COMPANY LTD
             PARK HOUSE BUILDING, 2ND FLOOR ROUND NORTH, THRISSUR
             PIN 680 608(POLICY NO.101203/31/07/01/00008947)

             R3 BY ADV SRI.K.SANDESH RAJA




      THIS   MOTOR    ACCIDENTS   CLAIMS    APPEAL   HAVING   COME   UP   FOR
HEARING ON 16.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA No.563 of 2012                         2


                                      JUDGMENT

This is an appeal submitted by the claimant in

OP(MV)No.766 of 2008 on the file of the Motor Vehicles

Claims Tribunal, Ottapalam. The appellant has filed the

above claim petition seeking compensation for the

injuries sustained to her in a motor accident occurred

on 20.04.2008. The accident occurred when a tempo van

driven by the 1st respondent, owned by the 2nd

respondent and insured with the 3rd respondent hit her

while she was standing on the northern side of Attoor

Companypadi bus stop. Due to the injuries, she

sustained permanent disablement and the same was

certified by the doctor at 9% vide Ext.A13 disability

certificate. The appellant was aged 60 at the relevant

time and was a coolie worker earning a sum of

Rs.3,500/- per month.

2. The said claim petition was tried along with

OP(MV)No.758 of 2008 which is a claim petition in

respect of the very same accident. All the respondents

filed written statements disputing the negligence on

the part of the driver of the offending vehicle. In the

written statement filed by the Insurance Company, the

coverage of policy was admitted, but they disputed the

liability on various grounds. The quantum of

compensation was also disputed. The evidence in this

case consists of the oral evidence of PW1, who is the

appellant herself and the documentary evidence were

marked as Ext.A1 to A13 from the side of the appellant.

The insurance policy was marked as Ext.B1 from the side

of the 3rd respondent.

3. After the trial, the Tribunal passed an award

holding that the 1st respondent was responsible for the

accident and the quantum of compensation was fixed as

Rs.87,660/- and being the insurer of the vehicle, the

3rd respondent was directed to deposit the said amount

along with interest at the rate of 8% per annum. Being

dissatisfied with the quantum of compensation, this

appeal is filed.

4. Heard the learned counsel for the appellant and

the learned counsel for the 3rd respondent-Insurance

Company. The learned counsel for the appellant

submitted that the monthly income taken by the Tribunal

is on lower side and he further points out that the

percentage of disability was also fixed on lower side

than determined by the doctor as per medical

certificate. With regard to the monthly income of the

appellant, he points out that, the Tribunal had taken

only Rs.1,500/- which is on lower side. He relies on

the principles laid down by the Hon'ble Supreme Court

in Ramachandrappa v. Manager, Royal Sundaram Alliance

Insurance Company Ltd. [(2011)13 SCC 236] and Syed

Sadiq v. Divisional Manager, United India Insurance

Company Limited[(2014)2 SCC 735], wherein the monthly

income in respect of a coolie was fixed as Rs.4,500/-

in respect of an accident occurred during the year

2004. When the fixation of monthly income is taken into

consideration in the light of the principles set out by

the Hon'ble Supreme Court, this Court is of the view

that, it is on lower side. The monthly income claimed

by the appellant was Rs.3,500/-, which is a reasonable

figure and it can be accepted as such. Similarly, in

respect of percentage of disability, it has to be noted

that the appellant had sustained very serious injuries

which are specifically mentioned in the award itself,

which are: severe crush injury of left foot, white

skin,soft tissue and tendon on the dorsum of foot lost,

fracture 5th metaterarsal and proximal palanx of the 5th

metatarsal.". The appellant is a coolie, and thus

engaged in an employment with physical assertion. Going

by the nature of the said injury and in the light of

Ext.A13 certificate issued by the doctor, this Court

finds that the Tribunal was not justified in reducing

the same as just 3%. Considering the nature of

injuries, the disability certified in Ext.A13 medical

certificate has to be accepted completely. While re-

fixing the compensation for permanent continuing

disability with the revised criteria as above, the

amount comes to Rs.34,020/- (Rs.3500x12x9x9/100). The

Tribunal has already awarded an amount of Rs.4,860/-

under this head. Hence, the balance amount payable

under this head is Rs.29,160/-. Another ground pointed

out by the learned counsel for the appellant is the

compensation for loss of earnings. She had undergone

inpatient treatment for a period of 36 days and the

nature of injuries is very serious. For the purpose of

calculating loss of earnings, the Tribunal has taken

the period as four months only. The learned counsel

contends that, considering the nature of injuries and

also the number of days she had undergone as inpatient,

a higher period not less than six months should have

been taken. When considering the above aspects pointed

out by the learned counsel for the appellant, this

Court is of the view that a period of six months can be

taken for computing the compensation under this head,

as the injury would have prevented her from attending

her job for such a period. As the monthly income has

already been revised as Rs.3,500/-, on that ground also

it requires re-consideration. In such circumstances,

while re-computing the compensation under the head of

loss of earning, the appellant is entitled for an

amount of Rs.21,000. Since an amount of Rs.6,000/- has

already been granted by the Tribunal under this head,

the additional amount entitled to the appellant would

be Rs.15,000/-.

5. Another head which requires re-consideration

is the compensation for pain and suffering. The

Tribunal has awarded an amount of Rs.20,000/- under

this head, which is on lower side. This Court is of the

view that a further sum of Rs.10,000/- would render

justice to the appellant in this regard. Similarly, the

amount awarded under the head of loss of amenities, the

Tribunal has awarded an amount of Rs.10,000/-, which

requires re-consideration and a further sum of

Rs.10,000/- can be granted on this head also.

In such circumstances, the total amount receivable

by the appellant in addition to the amount awarded

by the Tribunal is fixed as Rs.64,160/-

(Rs.29,160+15,000+10,000+10,000) which is rounded to

Rs.64,500/- (Rupees Sixtyfour thousand and five hundred

only). The 3rd respondent-Insurance Company shall

deposit the said amount with interest at the rate of 8%

per annum from the date of receipt of copy of this

judgment.

The above appeal is disposed of as above.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE

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