Baby Chacko vs Baby T.K
2021 Latest Caselaw 15489 Ker

M.A.C.A.3979/2016               1




             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
           THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
    FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943
                      MACA NO. 3979 OF 2016
    AGAINST THE ORDER/JUDGMENT IN OPMV 1223/2010 OF MOTOR
         ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR, ERNAKULAM
APPELLANT/S:

            BABY CHACKO,
            AGED 50 YEARS,
            W/O. PAULOSE, PATHAPPILLY HOUSE,
            ANGAMALI, NEAR KIZHAKKEPPALLY. ANGAMALI VILLAGE.

            BY ADVS.
            SRI.JOBY JACOB PULICKEKUDY
            SRI.ANIL GEORGE
            SRI.T.ANCY
            SMT.NIVYA VALSAN
            SMT.K.R.PARVATHY
            SRI.K.S.SUMEESH
            SMT.K.S.SURYA



RESPONDENT/S:

     1      BABY T.K.,
            THETTAYIL HOUSE, EDAKKUNNUY, PADUVAPURAM PO.,
            ERNAKULAM DISTRICT-683 572 (OWNER OF KL.41/A-6993
            MOTOR CYCLE)
 M.A.C.A.3979/2016              2



     2      LIBIN BABY,
            S/O.BABY, THETTAYIL HOUSE, EDAKKUNNU,
            PADUVAPURAM P.O., ERNAKULAM DISTRICT-683 572.
            (RIDER OF KL.41/A-6993 MOTOR CYCLE)

     3      UNITED INDIA INSURANCE COMPANY LTD.,
            REP.BY BRANCH MANAGER, ANGAMALI BRANCH,
            K.G.TOWERS, 1ST FLOOR, THRISSUR ROAD,
            ANGAMALI -683 572.

            BY ADV SMT.RAJI T.BHASKAR

      THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
      ADMISSION ON 23.07.2021, THE COURT ON THE SAME DAY
      DELIVERED THE FOLLOWING:
 M.A.C.A.3979/2016                    3



                              JUDGMENT

This is an appeal filed by the petitioner in O.P.

(MV).No.1223/2010 on the file of the Motor Accidents Claims

Tribunal, Perumabavoor. The said claim petition was filed

seeking compensation for the injuries sustained in her in a

motor accident occurred on 22.12.2009. The appellant was

working as a lecturer in Government Polytechnic College,

Muttom. She suffered physical disability on account of the

injuries and as per Ext.C1 certificate issued by the Medical

Board; the percentage of disability was certified as 75%. As

compensation an amount of Rs.40,00,000/- was claimed by the

appellant. The insurance company resisted the claim by filing a

written statement. However, they admitted the coverage of

policy in respect of the vehicle involved in the accident.

2. Evidence in this case consists of oral evidence of PW1

to PW3 and documentary evidence of A1 to A15, X1 medical

records and C1 Medical Board report. After the trial, the

Tribunal came to the conclusion that the accident occurred due

to the negligence of the 2 nd respondent and being the insurer of

the vehicle, the 3rd respondent was held liable to pay the

compensation. The quantum of compensation was fixed as

Rs.10,28,982/- and the 3rd respondent was directed to deposit

the said amount along with interest at the rate of 9% per annum.

Being dissatisfied with the quantum of compensation this appeal

is filed.

3. Heard the learned counsel for the appellant as well as

the learned counsel for the 3rd respondent. The main contention

urged by the learned counsel for the appellant is that the

compensation awarded under the head of permanent disability

is inadequate. Similarly, he also submits that the amounts under

the head of pain and suffering as well as loss of amenities are

also on lower side. He points out the serious nature of

disabilities which prevented her from leading a normal life. She

was diagnosed with 'Traumatic optic neuropathy right eye and

gross visual field constriction left eye'. Consequent to the the

same, she is suffering from tubular vision, which affects her

daily life.

4. On the other hand, the learned counsel for the

insurance company contents that the amount awarded by the

Tribunal is reasonable in all respects and no interference is

warranted.

5. When considering the amount awarded by the

Tribunal under the head of permanent disability, it can be seen

that the Tribunal had taken Rs.4,500/- as the monthly income.

This computation was made taking into consideration of the fact

that even after the accident the appellant was working as

lecturer in the present establishment. Therefore, there is no

actual loss of earning. In such circumstances, Tribunal fixed the

monthly income of Rs.4,500/- as the probable income after her

retirement. For calculating the compensation under this head,

the other criteria adopted were 75% disability and multiplier of

14. When considering the probable loss of earning capacity, on

account of the disability after her retirement, the monthly

income cannot be Rs.4,500/- because the said amount is very

low. It is evident from the records that at the time of the

accident she was drawing a monthly income of Rs.28,517/-. The

Tribunal had taken the monthly income of Rs.23,255/- (after

deductions) for the purpose of computing the compensation for

actual loss of earnings. This Court is of the view that when we

are making an attempt to determine the probable monthly

income after retirement, there should be some parity with the

income which she was earning at the time of the accident. This

is particularly so, in the cases where the injured is having

educational qualifications and this is a case of such nature. As

the Tribunal has accepted Rs.23,255/- as her monthly income,

necessarily, 50% of the said income can be taken as the

probable income after her retirement. Such percentage is

justified as she is a lecturer and it could be possible for her to

earn that much of the income, after her retirement. Hence the

monthly income can be taken as Rs.11,628/-. For the purpose of

adopting the multiplier, the age of the appellant at the time of

the retirement has to be taken into consideration. If that be so,

she would fall under the age group of 55 to 60. In such case, the

proper multiplier to be applied is 9. If that be so, the amount

under the head of loss of permanent disability shall be

Rs.9,41,868/- (11628x12x9x75/100). The Tribunal has awarded

an amount of Rs.5,67,000/- and hence the appellant will be

entitled for a further sum of Rs.3,74,868/- under this head. The

next head is compensation for pain and suffering. Amount

awarded under this head is Rs.70,000/-. Taking into account the

nature of injuries, and also the consequence of such injuries,

under no circumstances, the said amount can be treated as a

reasonable figure. This Court is of the view that a further sum

of Rs.30,000/- would render justice to the appellant to some

extent. Similarly, the amount awarded under the head of loss of

amenities is Rs.50,000/- only. The physical disabilities on

account of the injuries had caused long lasting effects on her

quality of life. Hence, a further sum of Rs.50,000/- is to be

granted under this head.

6. Thus the total compensation receivable by the

appellant is fixed as Rs.4,54,868/- (3,74,868+50,000+30,000).

The 3rd respondent shall deposit this amount along with

interest at the rate of 9% per annum within a period of three

months from the date of receipt of a copy of this judgment.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE DG/26.7.21