Kerala High Court

Sajina Saseendran vs Joby.P.E on 27 November, 2021

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
   SATURDAY, THE 27TH DAY OF NOVEMBER 2021 / 6TH AGRAHAYANA, 1943
                           MACA NO. 530 OF 2020
AGAINST THE AWARD DATED 28.2.2019 IN OP(MV)NO.616/2016 ON THE FILE OF
              MOTOR ACCIDENTS CLAIMS TRIBUNAL, VADAKARA
APPELLANT/PETITIONER:

           SAJINA SASEENDRAN,AGED 49 YEARS,
           D/O. BALAN MANNIYUR HOUSE, MANIYURTHAZHA, NARIPATTA P.O.
           KAKKATTIL, VATAKARA TALUK, KOZHIKODE DISTRICT 673 506.

           BY ADVS.
           M.B.SHYNI
           SRI.DEEPAK RAJ
           SRI.FRANCIS MATHEW
           SHRI.SAREEN S.



RESPONDENTS/RESPONDENTS:

     1     JOBY.P.E,
           S/O. ELIAS, PLATHOTTATHIL HOUSE, MAIKABU P.O.
           THAMARASSERY (VIA) KOZHIKODE DISTRICT 673 573.

     2     FAIZAL N.K.,
           S/O. ABDULLA, MALOKUNNATH HOUSE KODIYURA P.O. KALLACHI,
           VATAKARA, KOZHIKODE DISTRICT 673 506.

     3     UNITED INDIA INSURANCE COMPANY LTD,
           BRANCH OFFICE, 2ND FLOOR, ROYAL CITY COMPLEX, NEAR TOWN
           HALL, CONVENT ROAD, VATAKARA, KOZHIKODE DISTRICT, 673
           101, REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE,
           2ND FLOOR, ROYAL CITY COMPLEX, NEAR TOWN HALL,M CONVENT
           ROAD, VATAKARA, KOZHIKODE DISTRICT 673 101.

           BY ADV PREETHY R. NAIR


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
27.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 530 OF 2020                   2

                             JUDGMENT

The appellant is the petitioner in OP(MV) No.616 of 2016 on the

file of the Motor Accidents Claims Tribunal, Vatakara. The

respondents are the respondents before the Tribunal.

2. The short facts relevant for the determination of this appeal

are as follows: On 04.12.2015, while the appellant was walking through

the extreme side of the road and when she reached Kaiveli Road

Junction, a tipper lorry bearing Registration No. KL-57-D-8925 driven

by the 2nd respondent in a rash and negligent manner hit the appellant

and thereby suffered serious injuries. Immediately the appellant was

taken to Govt. Hospital, Kuttiady and thereafter referred to BMH

Kozhikode and treated there as an inpatient for a total of 17 days. The

appellant sustained the following injuries: left hemothorax, fracture of

8th, 9th, 10th ribs of the left side, injury to the right middle fingertip,

and right index finger injury. The Tipper lorry bearing Reg. No. KL-57-

D-8925 was owned by the 1st respondent and was insured with the 3rd

respondent. The appellant was aged 45 years at the time of the

accident and was running a tailoring shop. She was looking after her

family from the limited income from the tailoring shop. Due to the

accident, the appellant has lost income from her job for several days.

Appellant sustained injuries and financial loss because of the accident.

After discharge from the hospital, further treatment was continued.

The appellant claimed a total compensation of Rs. 5,00,000/- from the

respondents.

3. Respondents 1 and 2 who are the owner and driver of the

offending vehicle did not contest the matter before the Tribunal and

they were set ex parte. The 3rd respondent insurance company filed a

written statement, admitting the insurance policy of the offending

vehicle at the relevant time of the accident.

4. The appellant produced and marked Exts.A1 to A12

documents as evidence before the Tribunal and certificate of

permanent disability was produced and marked as Ext.C1.

5. The Tribunal after analysing the pleadings and materials on

record, by the impugned award allowed the claim petition in part,

permitting the appellant to realise an amount of Rs. 3,95,400/- with

8% interest per annum and proportionate costs from the date of

petition till the date of deposit. The 3rd respondent was directed to

satisfy the award.

6. Dissatisfied with the quantum of compensation awarded by

the Tribunal, the present appeal is filed.

7. The sole question that arises for consideration is whether the

quantum of compensation awarded by the Tribunal is reasonable and

just.

8. Ext.A1 is the copy of the FIR in Crime No.706/2015 of

Kuttiady Police Station and Ext.A3 is the final report in the above said

crime charge sheeting the 2nd respondent for the offences punishable

under S.279 and 338 IPC. The Tribunal relying on the judgment of the

Apex Court in Bimal Devi & Two Others vs. Himachal RTC

and Others, 2010 (4) KLT Suppl. 73 (SC) and the decision of this

Court in New India Assurance Company Ltd. vs. Pazhani

Ammal and Others, 2011 (3) KLT 648, held that Ext. A1 and A3

will prima facie prove that the accident was due to negligence on the

part of the 2nd respondent, who was driving the offending vehicle

bearing Reg No. KL-57-D-8925.

9. Admittedly, the 1st respondent is the owner and the 3rd

respondent is the insurer of the offending vehicle. Therefore, the 3rd

respondent is bound to indemnify the liability of the 1st respondent

arising out of the accident.

10. The appellant claimed that she is running a tailoring shop

and getting a monthly income of Rs.15000/-. The appellant was aged

45 at the time of the accident. The Tribunal fixed the notional income

of the appellant at Rs.8,000/- and the appellant claimed that the

Tribunal went wrong in fixing Rs.8,000/- as notional income.

11. The reasoning of the Tribunal for fixing the notional income

at Rs. 8000/- is that there is absolutely no evidence to prove her

income per month at the time of the accident. I am afraid the said

finding of the Tribunal cannot be accepted, especially in view of the

evidence adduced in the case. The appellant was examined as PW1 and

Exhibit A7 identity card and registration book of the Tailors Welfare

Fund Board and also Exhibit A11 Rent Agreement were produced and

marked to prove that the appellant is running her own tailoring shop

and also working as a tailor. I feel the notional income fixed by the

Tribunal cannot be accepted in as much as even in the case of Coolie

worker the Apex Court in Ramachandrappa vs. Manager,

Royal Sundaram Alliance Insurance Company Ltd [(2011)

13 SCC236] has fixed the notional income at Rs.4,500/- per month in

the year 2004. The Apex Court in National Insurance Co. Ltd. v.

Pranay Sethi and Others, (2017) 16 SCC 680 has also

recognized the principle that there would be an incremental

enhancement in the case of even self-employed individuals in the

unorganized sector. Taking into consideration Exhibit A7 and A11

documents and also the decisions as referred above, I deem it

appropriate to fix the notional income of the appellant at Rs. 12000/-

per month as against Rs. 8,000/- fixed by the Tribunal.

12. Under the head Loss of Earnings, a total amount of

Rs.80000/- was claimed and an amount of Rs.48,000/- (8000 x 6)

was allowed by the Tribunal on finding that there is a loss of income

for six months and by fixing the notional income per month at

Rs.8,000/-. As the notional income has been enhanced to Rs.

12,000/-, I fix the amount due to the appellant under the head Loss of

Earnings as Rs.72,000/- (12000 x 6) instead of Rs. 48,000/- awarded

by the Tribunal.

13. Even though the appellant had claimed Rs.1,00,000/- as

compensation for Permanent Disability, the Tribunal granted only Rs.

40,320/- under this head. The appellant was examined by the Medical

Board attached to the Government Medical College Hospital, Calicut

and the report by the Medical Board is marked as Ext.C1 before the

Tribunal. As per C1 report, the appellant is having degloving injury

over the palm of the right hand, crush injury of right middle finger and

index finger and rib fractures and the Board assessed her permanent

disability at 3%. Considering the age of the appellant, which was 45

years at the time of the accident and in view of the judgment in Sarla

Verma vs. Delhi Transport Corporation [(2010 (2) KLT 802]

the Tribunal has correctly adopted the proper multiplier as 14. Since

notional income has been increased by this Court from Rs.8,000/- to

12,000/-, the appellant is entitled to a total amount of Rs.60,480/-

(Rs. 12,000 x 12 x 14 x 3/100) as compensation for permanent

disability instead of Rs.40,320/- (8000 x 12 x 14 x 3/100) fixed by the

Tribunal.

14. The appellant claimed compensation of Rs. 2,00,000/- under

the head disfigurement. The Tribunal found that she sustained

degloving palmer surface right hand and there are ugly marks and

valgus deformity in her hand. Even though the disfigurement occurred

due to the accident was discussed by the Tribunal, in the award Rs.

50,000/- was granted under the head Loss of Amenities and

Enjoyment of Life but no amount was given to the appellant under the

head compensation for disfigurement though she claimed Rs.

2,00,000/-. Exhibit A2 Wound Certificate, A4 series Discharge

summaries, A5 Discharge card, A6 photographs and A8 treatment plan

and doctor's instructions were marked. Going through these evidences

adduced by the appellant, the Tribunal found that suturing and

debridement of the wound was done by a Plastic Surgeon and that

after discharge on 14.12.2015 she was again admitted on 30.12.2015

with complications of secondary raw areas of her right hand and left

elbow and she underwent surgery on 31.12.2015. It has also come out

in evidence that on 04.02.2016 she was again admitted to the

Department of Plastic Surgery. The Tribunal is not justified in not

granting any compensation for disfigurement even though it was

specifically claimed and proved before the Tribunal. Taking into

consideration of the serious nature of ugly marks and valgus deformity

in the hand and also the fact that the appellant is a lady, I feel an

amount of Rs. 15,000/- could be granted under the head

disfigurement.

15. With respect to compensation awarded under other various

heads, I find that the Tribunal has awarded reasonable and just

compensation.

16. On an overall re-appreciation of the pleadings and materials

on record and the law laid down in the aforesaid decisions, I hold that

the appellant is entitled to enhancement of compensation as modified

and recalculated above and as given in the table below for easy

reference.

                                       Amounts              Actual increase as
                       Amount awarded
                                       modified       and   per            the
Head of claim          by the Tribunal
                                       recalculated by      recalculation by
                       (RS)
                                       this Court (Rs.)     this Court
Loss of earning        48,000/-          72,000/-           24,000/-
Transport         to
                       10,000/-          10,000/-           -
hospital
Extra
nourishment       &
                       13,600/-          13,600/-           -
bystander
expenses
Medical expenses 1,82,455/-              1,82,455/-         -

Damage            to
                       1,000/-           1000/-             --
clothing
Pain & suffering       50,000/-          50,000/-           -

Loss of amenities
and enjoyment of 50,000/-                50,000/-           -
life
Permanent
                       40,320/-          60,480/-           20,160/-
disability
Disfigurement          ----              15,000/-           15,000/-
                       3,95,375/-
Total                  (Rounded       to 4,54,535/-         59,160/-
                       Rs.3,95,400/-)

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

order of the Tribunal and enhancing the compensation by a further

amount of Rs.59,160/- with interest at the rate of 8% per annum on

the compensation from the date of petition till the date of realisation

with proportionate costs. The 3rd respondent shall deposit the

additional compensation amount awarded in the appeal before the

Tribunal with interest and costs within a period of two months from

the date of receipt of a certified copy of this judgment. The Tribunal

shall disburse the compensation to the appellant/petitioner in

accordance with the law.

As per order dated 27.11.2021 in C.M. Application No. 1/2020

this court held that the appellant would be disentitled for interest for a