Leelambika vs Navas
2021 Latest Caselaw 9816 Ker

M.A.C.A.No.1626/2013              1

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

             THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

    WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943

                         MACA.No.1626 OF 2013

  AGAINST THE AWARD IN OPMV 619/2004 DATED 29-04-2013 OF MOTOR
             ACCIDENT CLAIMS TRIBUNAL, MAVELIKKARA


APPELLANT/S:

                LEELAMBIKA
                PANAPURATHU KUTTYIL, VALLIKUNNAM MURI,
                VALLIKUNNAM.

                BY ADVS.
                SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
                SRI.A.R.DILEEP
                SRI.MANU SEBASTIAN
                SRI.K.J.SHARATH KUMAR

RESPONDENT/S:

       1        NAVAS,
                PUNCHAVELUMPIL PADEETHATHIL,
                THEKKU KOCHU MURI, KRISHNAPURAM-690 533.

       2        REMANAN,
                KUTTYIL VEEDU, PADA NORTH,
                KARUNAGAPPALLY-690 518.

       3        THE NEW INDIA ASSURANCE CO.LTD.,
                REPRESENTED BY ITS BRANCH MANAGER,
                BRANCH OFFICE, KAYAMKULAM-690 502.

                R3 BY ADV. SMT.A.SREEKALA

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
     ON 24.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
     FOLLOWING:
 M.A.C.A.No.1626/2013                 2




                              JUDGMENT

Dated this the 24th day of March 2021

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

(MV).No.619/2004 on the file of the Motor Accidents Claims

Tribunal, Mavelikkara. The said claim petition was filed by her

seeking compensation for the injuries sustained in a motor

accident occurred on 05.06.2003. It was contended that, she

was aged 57 years at the time of accident and was a home

maker. The monthly income claimed by her was Rs.3,000/-. It

was also contended by her that due to the injuries, she sustained

permanent disablement. As compensation, an amount of

Rs.2,10,000/- was sought for in the petition.

2. The original petition was contested by the 3 rd

respondent Insurance Company alone. They filed a written

statement admitting the coverage of policy, but disputed the

liability on various grounds. Quantum of compensation was also

seriously disputed by them.

3. The evidence in this case consists of Exts.A1 to A19

and the oral evidence of PWs1 and 2 from the side of the

appellant/ petitioner. No evidence was adduced from the side of

the respondents.

4. After the trial, the Tribunal passed an award allowing a

total compensation of Rs.99,100/- and the 3rd respondent

Insurance Company was directed to deposit the said amount

along with interest at the rate of 7.5% per annum.

5. This appeal is filed by the appellant, being aggrieved

by the quantum of compensation as above. Heard the learned

counsel for the appellant and the learned counsel for the 3 rd

respondent Insurance Company.

6. The main contention urged by the learned counsel for

the appellant is that, the monthly income taken by the Tribunal

is Rs.3,000/-, which is on lower side, going by the principles laid

down by the Hon'ble Supreme Court in various judgments. It is

true that the fixation of Rs.3,000/- as monthly income was made

by the Tribunal, by accepting the claim in the petition only.

However, the crucial aspect to be noticed in this regard is that

merely mentioning of Rs.3,000/- as monthly income in the claim

petition cannot prevent this Court to ensure just compensation to

the appellant in this case. This is because of the fact that the

appellant herein is a home maker. It is a fact is that, no person

can ascertain the monthly income of a home maker with

arithmetical precision. In the judgment rendered by this Court

in Gopinathan A. and others v. Afzal Basha and others

[2020 (3) KHC 666], it is held in paragraph No.16 as follows:

"As held by the Apex Court in Arun Kumar Agarwal the gratuitous services rendered by wife/mother to the husband and children cannot be equated with the services of an employee and no evidence or data can possibly be produced for estimating the value of such services. In the instant case, the accident occurred on 10/10/2004 and at the time of accident, the deceased was aged 53 years. The appellants claimed Rs.4,000/- as the notional monthly income of the deceased, who was a housewife. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2004, and taking note of the fixation of notional monthly income by the Apex Court in Ramachandrappa and Syed Sadiq, the monthly income of a manual labourer or a labourer in an unorganized sector doing his own business as vegetable vendor, fruit vendor, etc., who met with a motor accident in the year 2004, could be reasonably taken as Rs.4,500/-. Therefore, the notional monthly income that could be taken for a housewife/homemaker, who met with a motor accident

in the year 2004, for the purpose of awarding just and reasonable compensation under the head loss of dependency, shall not be less than the notional monthly income of Rs.4,500/-, that could be taken for a manual labourer or a labourer in an unorganized sector doing his own business as vegetable vendor, fruit vendor etc., who met with a motor accident in the year, taking note of the fixation of notional monthly income by the Apex Court in Ramachandrappa and Syed Sadiq, even in a case in which the notional monthly income claimed in the claim petition is on the lower side. The appellants have no case that the deceased was earning any income by doing tailoring, embroidery work, etc. Therefore, the notional monthly income of the deceased is re-fixed as Rs.4,500/-, for the purpose of assessing compensation under various heads."

7. Thus it is evident that a different yardstick can be

applied in the case of a house wife. I am in full agreement with

the said view.

8. Therefore, this Court is of the opinion that merely

because of the reason that the appellant had specified Rs.3,000/-

as monthly income in the claim petition, that should not preclude

her from claiming compensation in tune with the principles laid

down by the Hon'ble Supreme Court in this regard. It is to be

noted that, going by the principles laid down by the Hon'ble

Supreme Court Syed Sadiq v. Divisional Manager, United India

Insurance Company [(2014) 2 SCC 735] and Ramachandrappa

v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011)

13 SCC 236], the monthly income of a coliee has to be fixed for

the year 2004 as Rs.4,500/-. In this case, the accident was

occurred in the year 2003. Considering the fact that the accident

occurred prior to the year mentioned in the judgment of the

Hon'ble Supreme Court mentioned above, this Court is of the

view that Rs.4,000/- would be ideal in this case. Accordingly, the

monthly income of the appellant is fixed as Rs.4,000/-.

9. Next aspect highlighted by the learned counsel for the

appellant is that the multiplier adopted by the Tribunal was 8.

However, going by the principles laid down by the Hon'ble

Supreme Court in Sarla Verma & Ors. v. Delhi Transport

Corporation [(2009) 6 SCC 121], the multiplier has to be 9 for

the age group of 55 to 60. Since, the appellant was aged 58 on

the date of accident, the multiplier can be fixed as 9.

10. It is further urged by the learned counsel for the

appellant that, the permanent physical disability taken by the

Tribunal was 10%, even though as per Ext.A19 certificate issued

by the Doctor, it was certified as 15%. It was contended by him

that the Tribunal discarded Ext.A19 on the reason that the

doctor who issued the said certificate was not examined. In this

regard, he contents that, merely because of the reason that the

doctor was not examined, the percentage of disability certified in

the disability certificate cannot be discarded. He places reliance

upon the judgment rendered by this Court in Karunakaran v.

Abdul Rasheed [2015 (4) KLT 465]. It was also observed by

this Court in the said judgment that, merely because of the

reason that the certificate was issued by the Doctor who has not

treated the victim, the said certificate cannot be destructed.

However, on examining the factual circumstances under which

the observations made by this Court in the said judgment, it is

seen that the certificate issued in that case contained specific

details of injuries, method of calculation and it was also

specifically mentioned that the assessment was done under Mc

Bride Scale. However, on going through the contents of Ext.A19

medical certificate produced in this case, such material

particulars are lacking. Apart from the above, the doctor who

issued the certificate is not the person who treated the victim.

11. In the above circumstances, the percentage of

disability as certified in Ext.A19 cannot be accepted as such.

Hence, this Court is of the view that for the purpose of

computing the compensation for permanent disablement, 10%

disability as taken by the Tribunal can be retained. In the light

of the revised criteria as above, the compensation for disability

shall be Rs.43,200/- [4000x12x9x10/100]. The Tribunal has

already awarded an amount of Rs.28,800/- and after deducting

the said amount the petitioner shall be entitled for a further sum

of Rs.14,400/- under the head of permanent disability.

12. On account of the revision of monthly income, the

appellant will be entitled for a further sum of Rs.4,000/- under

the head of loss of earning and the said amount is awarded.

13. It was further contended by the learned counsel that

the transportation expenses granted was Rs.1500/- as against

the claim of Rs.7,000/-. It was pointed out by him that the

appellant had undergone treatment in Oachira and

Thiruvananthapuram. Therefore, the transportation expenses

granted by the Tribunal is on lower side. Considering the fact

that the treatment was availed at Thiruvananthapuram and also

taking into consideration the fact that the accident occurred in

the year 2003, this Court is of the opinion that a further sum of

Rs.1500/- can be granted under the said head. The amount

awarded under the head of pain and suffering is Rs.20,000/- and

the learned counsel seeks enhancement of the said amount.

Going by the nature of injuries sustained, and the period of

hospitalization undergone by the appellant, this Court feels that

the said amount can be enhanced to some extent and a further

some of Rs.10,000/- is reasonable. Another head on which

enhancement sought for by the learned counsel for the appellant

was in respect of loss of amenities. Amount awarded by the

Tribunal under this head is Rs.10,000/- as against the claim of

Rs.25,000/-. While considering the compensation under this

head, the fact that she is a home maker is a relevant factor to be

taken into consideration. Therefore, taking into account the

physical inconvenience that may cause to her in pursuing daily

routine and in doing household activities, this Court is of the

view that some enhancement can be granted under the head loss

of amenities. Considering the entire facts and circumstances of

this case a further sum of Rs.10,000/- can be granted under this

head.

Thus the total compensation awarded under this head is

fixed as Rs.39,900/- [14400+10000+10000+4000+1500]. The 3rd

respondent Insurance Company shall deposit the said amount

along with interest and proportionate costs as ordered by the

Tribunal within a period of three months from the date of receipt

of a copy of this judgment.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE

DG