Kerala High Court

Susy @ Lucy vs Suma Lalu on 9 March, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                THE HONOURABLE MR.JUSTICE C.S.DIAS

    TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942

                        MACA.No.725 OF 2014(C)

    AGAINST THE AWARD IN OP(MV) 1825/2009 DATED 26-11-2012 OF
      ADDITIONAL MOTOR ACCIDENTs CLAIMS TRIBUNAL , KOTTAYAM


APPELLANT/PETITIONER:

             SUSY @ LUCY
             NEDUMPUNCHAYIL HOUSE, NEDUMPUNCHA BHAGOM, VADAVATHOOR
             P.O, VIJAYAPURAM VILLAGE, KOTTAYAM DISTRICT.

             BY ADVS.
             SRI.G.SREEKUMAR (CHELUR)
             SRI.NANDAGOPAL S.KURUP

RESPONDENTS/RESPONDENTS:

      1      SUMA LALU
             PAREPARAMBIL HOUSE, S.N.PURAM PO, KOOROPPADA VILLAGE,
             KOTTAYAM TALUK, KOTTAYAM DISTRICT

      2      ORIENTAL INSURANCE CO. LTD.
             DIVISIONAL OFFICE, MATTEETHARA BUILDING, BAKER
             JUNCTION, KOTTAYAM-1.

      3      ANIL KUMAR S/O.VASU ACHARAY
             THONIPARAMBIL HOUSE, KOOROPPADA TEMPLE (NEAR) KOTHALA
             KARA P.O, KOOROPPADA VILLAGE, KOTTAYAM.

      4      BALACHANDRAN NAIR P.
             S/O.PARAMESWARAN NAIR, MALIEKKAL PARAMBIL HOUSE
             KOTHALA P.O, KOOROPPADA VILLAGE, KOTTAYAM.

             R1 BY ADV. SRI.BIMAL K.NATH
             R1-2 BY ADV. SRI.N.S.NAJEEB
             R1 BY ADV. SMT.M.K.SHIMI
             R1 BY ADV. SRI.SREEVALSAN.V
             R1 BY ADV. SRI.D.SREENATH

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
03-03-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA.No.725 OF 2014

                                   2

                             JUDGMENT

Dated this the 9th day of March 2021

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

No.1825/2009 on the file of the Additional Motor

Accidents Claims Tribunal, Kottayam. The

respondents in the appeal were the respondents in

the claim petition. The parties are, for the sake of

convenience, referred to as per their status in the

claim petition.

2. The concise case in the claim petition, for

the determination of the appeal, is: on 1.8.2009

when the petitioner was travelling in a bus bearing

Reg. No.KL-5V 6757 (offending vehicle) from

Vadavathoor to Kottayam, the bus stopped in-front of

the Baselious College and the Conductor directed

the passengers to alight from the bus. While the

petitioner was alighting from the bus, the driver

suddenly moved the bus forward. The petitioner fell

down and back wheel of the bus ran over her and

she sustained grievous injuries. The petitioner was

treated at the Medical College Hospital, Kottayam. MACA.No.725 OF 2014

The accident occurred due to the rashness and

negligence on the part of the respondents 3 and 4 -

the driver and conductor of the bus. The 1st

respondent was the owner of the bus and the 2 nd

respondent is the insurer. The petitioner claimed

that she was a maid servant and drawing a

monthly income of Rs.6,000/-. The respondents 1 to

4 - the owner, insurer, driver and conductor of the

bus are jointly and severally liable to pay the

petitioner a total compensation of Rs.3,67,106/-.

3. The respondents 1,3 and 4 remained

absent and were set ex parte.

4. The 2nd respondent filed a written

statement refuting the allegations in the claim

petition. The 2nd respondent contended that the

petitioner was only a house-wife at the time of

accident. The allegations regarding the injuries, the

period of treatment, the expenditure etc., were

denied by the 2nd respondent. The 2nd respondent

also contended that there was no rashness of

negligence on the part of the respondents 3 and 4. MACA.No.725 OF 2014

However, the 2nd respondent admitted that the

offending vehicle was insured by the 2 nd

respondent. The 2nd respondent prayed that the

claim petition be dismissed.

5. The petitioner produced and marked

Exts.A1 to A14 in evidence. Ext.X1 disability

certificate was marked as a court exhibit. Neither

party adduced any oral evidence.

6. The Tribunal, after analysing the

pleadings and materials on record, by the

impugned award allowed the claim petition in part

by directing the 2nd respondent to pay the

petitioner a compensation of Rs.3,68,000/- with

interest at the rate of 7.5% per annum from the

date of petition till the date of realisation along

with the 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/petitioner and the learned counsel MACA.No.725 OF 2014

appearing for the 2nd respondent/Insurance

Company.

9. Even though notice was served on the

respondents 1,3 and 4, there is no appearance for

them.

10. The sole question that emanates for

consideration in this appeal is whether the

quantum of compensation awarded by the Tribunal

is just and reasonable?

11. 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

12. Ext.A3 final report, Ext.A5 scene MACA.No.725 OF 2014

mahazar and Ext.A6 vehicle mahazar substantiate

that the petitioner met with an accident as

averred in the claim petition, on 1.8.2009 due to

the rashness and negligence on the part of the 3rd

respondent, the driver of the bus. Ext.A8 wound

certificate and Ext.A12 discharge book proves that

the petitioner was hospitalised for a period of 95

days in the Medical College Hospital, Kottayam.

Ext.X1 disability certificate proves that the

petitioner suffered a permanent disability of 24.9%

as certified by the Medical Board.

13. The principal area of dispute in the

appeal is with regard to the notional income and

the disability of the petitioner fixed by the Tribunal

at 20%.

14. The petitioner had pleaded that she was

a maid servant and getting a salary of Rs.6,000/-

per month. The Tribunal, arrived at a finding that

the petitioner was only getting a notional income of

Rs.4,500/- per month.

15. In Ramachandrappa v. Manager, MACA.No.725 OF 2014

Royal Sundaram Alliance [(2011) 13 SCC

236] and in Syed Sadiq and others v.

Divisional Manager, United India Insurance

Co.Ltd [(2014) 2 SCC 735], the Hon'ble

Supreme Court has fixed the notional income of

a coolie worker in year 2004 at the rate of

Rs.4,500/- per month and that of a vegetable

vendor at the rate of Rs.6,500/- per month in

the year 2006, respectively. Recently, this

Court in Soman v. Jinesh James and others

[ILR 2020 (3) Kerala 1003] has fixed the

notional income of a coolie worker in the year

2010 at Rs.7,500/- per month.

16. Following the parameters laid down by

the Hon'ble Supreme Court in the aforecited

decisions, I am of the considered opinion that,

the petitioner who claimed herself to be a maid

servant and the accident having occurred in

the year 2009, the petitioner's notional income MACA.No.725 OF 2014

can safely be re-fixed at Rs.6,000/-- per month.

Accordingly, I re-fix the notional income of the

petitioner at Rs.6,000/- per month.

17. In view of the re-fixation of the

notional income of the petitioner, I hold that the

petitioner is entitled for loss of earnings for a

period of nine months at the rate of Rs.6,000/-

per month. Consequently, the petitioner is

entitled for enhancement of compensation

under said head of claim " loss of earnings' at

Rs.54,000/-.

18. The Medical Board, as per Ext.X1 had

certified that the petitioner had suffered a

permanent disability at 24.9%. The Tribunal,

after seeing the petitioner came to the

conclusion that the petitioner had a disability of

only 20%.

19. The Hon'ble Supreme Court in Union

of India and another v. Talwinder Singh MACA.No.725 OF 2014

[2012 5 SCC 480] has laid down the law that

Courts should not ordinarily interfere with the

opinion of experts.

20. When the competent Medical Board,

as per Ext.X1, after examining the petitioner

assessed her disability at 24.9%, the Tribunal

ought to have accepted the said assessment

certified by the expert body, instead of scaling

down the percentage of disability to 20% by

guess work. In the said circumstances, I set

aside the finding of the Tribunal that the

petitioner suffers from only a disability of 20%

instead of 24.9%. Due to the re-fixation of the

permanent disability of the petitioner at 24.9%

and her notional income at Rs.6,000/-, I

enhance the compensation under the head 'loss

due to disability' at Rs.4,03,200/- instead of

Rs.1,72,800/- as fixed by the Tribunal.

21. With respect to other heads of claim, MACA.No.725 OF 2014

namely, Transport to hospital, Clothing,

Bystander expenses, Extra nourishment,

Medical expenses, Pain and sufferings and

Loss of amenities, I find that the Tribunal has

awarded just and reasonable compensation.

22. On an overall re-appreciation of the

pleadings, materials on record and the law laid

down by the Hon'ble Supreme Court and this

Court in the aforecited decisions, I am of the

definite opinion that the appellant/petitioner 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 (in    Amounts modified and
       No                                                    rupees)          recalculated by this Court

       1      Loss of earnings                                40,500                   54000

       2      Transport to hospital                            3,000                    3,000

       3      Extra nourishment                                3,000                    3,000

       4      Damages to clothings                             1,000                    1,000

       5      Medical expenses                                27,806                   27,806

       6      Bystander's expenses                            19,000                   19,000

       7      Pain and sufferings                             50,000                   50,000

       8      Compensation for loss of amenities              50,000                   50,000

      9.      Compensation        for     continuing         1,72,800                 4,03,200
              permanent disability




              Total                                         Rs,3,67,106               6,11,006
 MACA.No.725 OF 2014

In the result, the appeal is allowed in part,

by enhancing the compensation by a further

amount of Rs.2,43,900/- with interest at the rate

of 7.5% per annum on the enhanced

compensation from the date of petition till the

date of realisation with proportionate costs. The

2nd respondent/Insurance Company shall deposit

the additional compensation with interest and

proportionte costs awarded in this appeal before

the Tribunal within two months from the date of

receipt of a certified copy of this judgment, after

deducting the liability of the appellant/petitioner