Kerala High Court

Sreedevi vs V.N.Asokan on 16 March, 2021

MACA.No.2663 OF 2010(C)
                               1

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

               THE HONOURABLE MR.JUSTICE C.S.DIAS

   TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942

                    MACA.No.2663 OF 2010(C)

AGAINST THE AWARD IN OP(MV)NO.2443/2004 OF SPECIAL COURT FOR EC
     ACT CASES &MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR


APPELLANT/PETITIONER:

             SREEDEVI
             KANAMKUMARATH HOUSE,
             P.O.CHERUTHURUTHY,,
             THRISSUR DISTRICT.

             BY ADV. SRI.P.V.CHANDRA MOHAN

RESPONDENTS/RESPONDENTS:

      1      V.N.ASOKAN, S/O.T.S.NARAYANAN,
             ASOKA BHAVAN, VENGANELLOORE.P.O.,,
             VIA.CHELAKKARA, THRISSUR DISTRICT-680586.

      2      VIJAYAKUMAR, S/O. CHATHANKUTTY
             CHOLAPARAMBIL HOUSE, VENGANELLORE,
             CHELAKKARA,, THRISSUR DISTRICT-680586.

      3      THE NEW INDIA ASSURANCE CO.LTD.
             PERINCHERY BUILDING, ROUND NORTH,,
             THRISSUR-680001.

             R1 BY ADV. SMT.M.M.DEEPA
             SRI.V.A.JOHNSON VARIKKAPPALLIL
             SRI.P.VIJAYA BHANU SR.
             BY SRI.C.K.PRASAD, GP

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 10-03-2021, THE COURT ON 16-03-2021 DELIVERED THE FOLLOWING:
 MACA.No.2663 OF 2010(C)
                                 2



                            C.S.DIAS,J
                 ------------------------
                    MACA No. 2663 of 2010
                 ------------------------
              Dated this the 16th day of March, 2021

                            JUDGMENT

The appellant was the petitioner in OP (MV) No.2443 of

2004 on the file of the Motor Accidents Claims Tribunal,

Thrissur. The respondents in the claim petition are the

respondents in the appeal.

2. The relevant facts in the claim petition, for the

determination of the appeal are: on 01.10.2002 while the

appellant was walking through the Pallam Cheruthuruthy

public road, a motorcycle bearing registration No.KL8/H

2983 (offending vehicle) driven by the 2 nd respondent in a

rash and negligent manner, hit the appellant causing serious

injuries to her. She was treated at the Divine Medical Centre,

Wadakkanchery as an in-patient. The vehicle belonged to 1 st

respondent, who had insured the vehicle with the 3 rd

respondent. The appellant was 46 years of age and she was MACA.No.2663 OF 2010(C)

having her own cows and was doing business in sale of milk.

She was getting a monthly income of Rs.4,000/- per month.

The respondents are jointly and severally liable to pay her

compensation, which is quantified at Rs.1,62,000/-

3. The respondents 1 and 2 filed a joint written

statement, inter alia, contending that the 2nd respondent was

not rash or negligent in driving the motorcycle. The accident

was caused only due to the careless crossing of the road by

the appellant. The 2nd respondent was holding a valid driving

license and the motorcycle was insured with the 3 rd

respondent. If all the respondents 1 and 2 are found liable to

pay the compensation, the 3rd respondent has to indemnify

the respondents 1 and 2.

4. The 3rd respondent filed a written statement,

denying the allegations in the claim petition. The 3rd

respondent admitted that the offending vehicle was having a

valid insurance policy. However, it was contended that the

2nd respondent was not holding a valid driving license. MACA.No.2663 OF 2010(C)

Therefore, the 1st respondent had committed breach of the

policy condition, therefore, the 3rd respondent was not liable

to indemnify the insured. The compensation claimed under

various heads was excessive and exorbitant. Hence, the claim

petition be dismissed.

5. The appellant marked Exts. A1 to A9 in evidence.

The 1st respondent marked Ext.B1 in evidence.

6. The Tribunal, after considering the pleadings and

materials on record, by the impugned award allowed the

claim petition, in part, by directing the 3rd respondent to

deposit an amount of Rs.63,100/- with interest at the rate of

8% per annum from 01.10.2004 till the date of realization.

The 3rd respondent was permitted to recover the amount from

the 1st respondent, as there was a breach of the policy

conditions.

7. Dissatisfied with the quantum of compensation

awarded by the Tribunal, the appellant/petitioner is in

appeal.

MACA.No.2663 OF 2010(C)

8. Heard the learned counsel for the appellant and the

learned counsel appearing for the respondents 1 and 3 in the

appeal.

9. The question that emerges 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 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.A2 final report read with Ext.A3 scene mahazar

and Ext.A4 AMVI report substantiates the fact that the MACA.No.2663 OF 2010(C)

accident occurred on 01.10.2002 due to the rash and

negligent riding of the offending vehicle by the 2nd

respondent. Ext.A6 discharge summary proves that the

appellant sustained injuries and was hospitalised. Ext.A7

series medical bills shows that the appellant had spent an

amount of Rs.7,944/- for her medical expenses. Ext.A9

disability certificate proves that the appellant has suffered

permanent disability.

12. This Court by its order dated 08.01.2020 referred

the appellant to the Medical College Hospital, Thrissur, to be

examined by a competent Medical Board. The Medical Board

by Disability Assessment Board Certificate dated 15.01.2020,

which is herein marked as Ext.C1, has certified the

permanent disability of the appellant at 16%. In view of the

certification by the competent medical board, the petitioner's

permanent disability is fixed at 16%.

13. Now, the main area of dispute in this appeal is with

regard to the notional income of the appellant fixed by the MACA.No.2663 OF 2010(C)

Tribunal at Rs.2,500/- when she claimed an amount of

Rs.4,000/- per month.

14. The appellant had claimed that she was having her

own cows and was doing business in sale of milk from which

she earned an amount of Rs.4,000/- per month. The

Tribunal, fixed the notional income of the appellant at

Rs.2,500/- per month.

15. 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.

Notional income

16. Following the parameters laid down by the

Hon'ble Supreme Court in the afore-cited decisions and MACA.No.2663 OF 2010(C)

considering the appellant was aged 46 years and doing

business in sale of milk and that the accident occurred in the

year 2002, I am of the considered opinion that the

appellant's notional income can safely be fixed at Rs.3,500/-

per month. Hence, I fix the appellant's notional income at

Rs.3,500/- per month.

Pain and suffering

17. Evidenced by Ext.A6 discharge summaries, the

appellant had suffered fractures of her 5th, 6th and 7th ribs.

She was hospitalised for a period of 17 days. She had loss of

earnings for a period of three months. In the said

circumstances, taking into consideration Ext.C1 disability

certificate and Ext.A5 discharge summaries, I am of the view

that the petitioner is entitled for compensation under the

heard 'pain and sufferings' as claimed in the claim petition at

Rs.25,000/-

Loss of earnings

18. With respect to the loss of earnings, as I have re- MACA.No.2663 OF 2010(C)

fixed the notional income of the appellant at Rs.3,500/-, and

her loss of earning power for the period of three months, the

compensation under the head 'loss of earnings' is enhanced

to Rs.10,500/- instead of Rs.7,500/-

Disability

19. In view of Ext.C1 disability certificate, assessing

the appellant's disability at 16% and the fact that her notional

income has been fixed at Rs.3,500/-, the compensation for

'loss due to disability' is enhanced to Rs.1,09,200/-, instead

of Rs.23400/- fixed by the tribunal.

Other heads of claim

20. With respect to the compensation awarded by the

Tribunal, under the other heads of claim namely,

Transportation, clothing, by-stander expenses and medical

expenses, I find that the Tribunal has awarded reasonable

and just compensation.

21. On an overall re-appreciation of the pleadings,

materials on record and the law laid down in the afore-cited MACA.No.2663 OF 2010(C)

decisions, I am of the firm opinion that the petitioner is

entitled for enhancement of compensation as modified and

recalculated above and given in the table below for easy

reference.

    Sl.   Heads of claim                 Amount        Amount        Amounts
    No                                   claimed    awarded by     modified and
                                                    the Tribunal   recalculated
                                                     (in rupees)   by this Court
    1     Loss of earning (total)         2,000/-     7,500/-        10,500/-

    2     Loss      of    earnings
          (partial)
    3     Medical              and       10,000/-     7,944/-         7,944/-
          miscellaneous
          expenses
    4     Future treatment

    5     Bystander expenses              3,500/-     3,000/-         3,000/-

    6     Transportation                  1,500/-      750/-          750/-,
          expenses
    7     Extra nourishment               1,500/-     2,000/-         2,000/-

    8     Damage     to   clothing,        500/-       500/-          500/-
          etc.
    9     Pain and suffering          25,000/-        18,000/-        25000

    10    Disability, Discomfort, 1,00,000            23,400/-      1,09,200/-
          etc.Loss of amenities
          disfiguration
                                                      63,094/-      1,59,294/-

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

enhancing the compensation by a further amount of

Rs.95,800/-(-(Rupees ninety five thousand eight hundred MACA.No.2663 OF 2010(C)

only) with interest at the rate of 8% per annum on the

enhanced compensation, from the date of petition till the

date of deposit by the 3rd respondent and proportionate costs.

The 3rd respondent shall deposit the additional compensation

awarded in this appeal before the Tribunal with

proportionate interest and costs within a period of two

months from the date of receipt of a certified copy of the

judgment, after deducting the liability of the appellant

towards balance court-fee and legal benefit fund, if any. The