Kerala High Court
Ayisha vs National Insurance Company ... on 24 June, 2021
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MACA No.2076 of 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 24TH DAY OF JUNE 2021 / 3RD ASHADHA, 1943
MACA NO. 2076 OF 2013
AGAINST THE ORDER/JUDGMENT IN OPMV 1148/2010 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL , MANJERI, MALAPPURAM
APPELLANT/S:
AYISHA
AGED 46 YEARS
W/O MOHAMMED, KOLAPPETTA, THENJEERI HOUSE,
PUVATHIKKAL PO, ERNAD TALUK, MALAPPURAM DISTRICT.
BY ADVS.
SRI.P.SAMSUDIN
SMT.NIMA JACOB
RESPONDENT/S:
NATIONAL INSURANCE COMPANY
IVTH FLOOR, PARCO TOWER, P.M.TAJ ROAD, KOZHIKODE
DISTRICT - 673 001.
BY ADV SMT.P.K.SANTHAMMA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR ADMISSION ON 24.06.2021, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
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MACA No.2076 of 2013
C.S.DIAS, J.
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MACA No.2076 of 2013
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Dated this the 24th day of June, 2021.
JUDGMENT
The appellant was the petitioner in OP (MV)
1148/2010 on the file of the Motor Accidents Claims
Tribunal, Manjeri. The respondent in the appeal was the
third respondent in the claim petition. The parties are, for
the sake of convenience, referred to as per their status in
the claim petition.
2. The relevant facts in the claim petition, for the
determination of the appeal are: On 12.11.2009 while the
petitioner was walking on the Pookottuchola road, a motor
cycle bearing registration No.KL-57B/1166, ridden by the
first respondent and owned by the second respondent and
insured with the third respondent, hit the petitioner. The
petitioner sustained serious injuries and was treated at the
District Hospital, Manjeri from 12.11.2009 to 11.12.2009
MACA No.2076 of 2013
for a period of 29 days. The petitioner sustained a fracture
on ulna right and bimalleolar fracture on the right leg.
The accident occurred solely due to the rashness on the
part of the first respondent. As the vehicle was owned by
the second respondent and insured with the third
respondent, the third respondent was liable to indemnify
the petitioner for the loss sustained by her. The petitioner
claimed that she was a manual labourer earning a monthly
income of Rs.6,000/-. Hence, she claimed a total amount
of Rs.1,50,500/-, which was limited to Rs.1,50,000/-.
3. The first and second respondents did not contest
the proceedings and were set ex parte.
4. The third respondent filed a written statement
admitting that the vehicle was insured with it. However, it
was contended that the accident occurred solely due to the
negligence on the part of the petitioner.
5. The petitioner produced and marked Exts A1 to
A7 in evidence. The report of the District Medical Board,
MACA No.2076 of 2013
Government General Hospital, Manjeri was marked as Ext
X1.
6. The Tribunal, after analysing the pleadings and
materials on record, by the impugned award allowed
the claim petition, in part, by directing the third
respondent to pay an amount of Rs.58,921/- with interest
at the rate of 9% per annum from the date of petition till
the date of realization along with proportionate costs.
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
respondent - Insurance Company.
9. The sole question that emanates for consideration
in the 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
MACA No.2076 of 2013
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 FIR substantiates that the accident was
caused due to the negligence of the first respondent who
rode the motor cycle in a rash manner. Undisputedly, the
second respondent was the owner of the vehicle and the
third respondent was the insurer of the vehicle. Ext A2
wound certificate and Ext A5 discharge summary
substantiates that the petitioner sustained injuries due to
the accident and she was hospitalized for a period of 29
days. Ext X1 report of the Medical Board proves that the
petitioner has a permanent locomotor disability of 9%.
MACA No.2076 of 2013
12. The principal area of dispute in the appeal is with
regard to the notional income of the petitioner fixed by the
Tribunal.
13. The petitioner had claimed that she was a daily
wage labourer earning a monthly income of Rs.6,000/-.
However, the Tribunal fixed her notional income at
Rs.3,000/- per month.
14. The Hon'ble Supreme Court in
Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Company Limited [(2011) 13 SCC
236] and Syed Sadiq v. Divisional Manager, United
India Insurance Co. Ltd. [(2014) 2 SCC 735] has fixed
the notional income of a coolie worker in the year 2004 at
Rs.4,500/- per month and that of a vegetable vendor in the
year 2008 at Rs.6,500/- per month, respectively.
15. Following the parameters laid down by the
Hon'ble Supreme Court in the aforecited decisions and
considering the fact that the petitioner was found to be
MACA No.2076 of 2013
aged 48 years, as per Exts A3 and A5, and that she was a
daily wage labourer, I am of the considered opinion that
the petitioner's notional income can safely be fixed at
Rs.6,000/- per month as claimed in the claim petition.
Hence, I fix the petitioner's notional income at Rs.6,000/-
per month.
Loss of earnings
16. It was found that the petitioner was disabled from
carrying on her avocation for a period of three months due
to the injuries sustained by her. I concur with the findings
of the Tribunal with regard to the period of disablement.
Accordingly, in view of the refixation of the notional
income of the petitioner, I refix the loss of earnings of the
petitioner at Rs.18,000/- instead of Rs.9,000/- fixed by the
Tribunal.
Pain and sufferings
17. Although the petitioner had claimed an amount of
Rs.30,000/- as compensation under the head pain and
MACA No.2076 of 2013
sufferings, the Tribunal awarded only an amount of
Rs.10,000/-. Undisputedly, the petitioner had suffered two
fractures and was hospitalized for a period of 29 days. She
was also underwent a surgery and that she has suffered a
permanent locomotor disability of 9%. Considering the
above aspects, I am of the opinion that the compensation
under the above head has to be enhanced by a further
amount of Rs.10,000/-. Therefore, I refix the compensation
under the head 'pain and sufferings' at Rs.20,000/-.
Bystander expenses
18. The Tribunal fixed the bystander expenses at
Rs.2,900/- i.e., Rs.100/- per day, which according to me is
too meagre. Considering that the accident took place in
the year 2009, I hold that compensation under the head
bystander expenses has to be fixed at Rs.200/- per day.
Accordingly, I enhance the compensation under the said
head at Rs.5,800/- instead of Rs.2,900/-.
MACA No.2076 of 2013
Loss of earnings (partial)
19. It is seen that the Tribunal has awarded an
amount of Rs.3,000/- under the head loss of earnings
(partial) for a period of two months. According to me the
said compensation is unsustainable in law because after
the petitioner was found to be incapacitated only for a
period of three months, there is no question of awarding
further compensation under the head loss of earnings
(partial). Hence, I set aside the amount awarded under the
said head.
Other heads of claim
20. With respect to the other heads of claim, I find
that the Tribunal has awarded reasonable and just
compensation, including the medical expenses on the basis
of the medical bills.
21. On an overall re-appreciation of the pleadings,
materials on record and the law laid down by the Hon'ble
Supreme Court in the afore-cited precedents, I am of the
MACA No.2076 of 2013
firm opinion that the 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 awarded Amounts
No by the Tribunal (in modified
rupees) and
recalculated
by this
Court
1 Loss of earnings (total) 9,000/- 18,000/-
2 Loss of earnings (partial) 3,000/- Nil
3 Medical and miscellaneous 13,021/- 13,021/-
expenses
4 Bystander expenses 2,900/- 5,800/-
5 Transportation expenses 750/- 750/-
6 Damage to clothing 250/- 250/-
7 Pain and sufferings 10,000/- 20,000/-
8 Loss of amenities Nil 5,000/-
9 Loss due to disability 20,000/- 84,240/-
Total 58,921/- 1,47,061/-
In the result, the appeal is allowed in part, by
enhancing the compensation by a further amount of
Rs.88,140/- (Rupees Eighty Eight Thousand One Hundred
and Forty only) with interest at the rate of 9% per annum
from the date of claim petition till the date of realisation
on the enhanced compensation with proportionate costs.
The third respondent shall deposit the enhanced
MACA No.2076 of 2013
compensation awarded in this appeal before the Tribunal
together with interest and proportionate costs within a
period of two months from the date of receipt of a
certified copy of the judgment. The appellant/petitioner
would be at liberty to move the Tribunal for the withdrawal
of the deposited amount.
Sd/-
C.S.DIAS
SKS/24.6.2021 JUDGE
