Kerala High Court
Thankamma vs K.V.Vasudevan 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. 3101 OF 2019
AGAINST THE AWARD DATED 11.01.2019 MADE IN OP(MV)NO.751/2011 ON THE
FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR
APPELLANT/PETITIONER:
THANKAMMA,
AGED 72 YEARS,
W/O. FRANCIS, RESIDING AT PUTHUR HOUSE, PARAPPUR,
THRISSUR DISTRICT.
BY ADVS.
T.C.SURESH MENON
P.S.APPU
A.R.NIMOD
RESPONDENTS/RESPONDENTS:
1 K.V.VASUDEVAN,
S/O. VELU, RESIDING AT KUNNATH HOUSE, KUTTENCHERY,
THRISSUR DISTRICT, PIN-680542.
2 ANEESH,
S/O. SATHYANESAN, RESIDING AT THEKKEPARAMBIL VEEDU,
PERUVALLUR, MULLASSERY, THRISSUR DISTRICT, PIN-680509.
3 THE UNITED INDIA INSURANCE COMPANY LIMITED,
ORISON COMPLEX, WADAKKANCHERY ROAD,
P.O. KUNNAMKULAM, THRISSUR DISTRICT, PIN-680503.
BY ADVS.
SRI.C.D.DILEEP
SMT.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. 3101 OF 2019 2
JUDGMENT
The appellant is the petitioner in OP(MV) No.751 of 2011 on the
file of the Motor Accidents Claims Tribunal, Thrissur. The respondents
are the respondents before the Tribunal.
2. The short facts relevant for the determination of this appeal
are as follows: The appellant was travelling in a bus having Reg.No.
KL-8-S-3657 on 06.01.2011 at 12 noon through Pavaratty-Parappur
Road and when the bus reached Parappur while the appellant was
getting down from the Bus, 2nd respondent who was the driver took
the Bus forward in a rash and negligent manner. As a result, the door
of the Bus hit the appellant and she sustained serious injuries. She was
taken to Amala Hospital, Thrissur and was treated for her injuries
there. Due to the accident, she suffered fracture of right femur and
right 1st metatarsal bone. She was hospitalized for 22 days. The
appellant was aged 64 years at the time of the accident and was a Tailor
earning at Rs.14,000/- per month. The bus bearing Registration No.
Reg. No. KL-8-S-3657 was owned by the 1st respondent and was
insured with the 3rd respondent. The appellant claimed a total
compensation of Rs. 2,80,000/- 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. To prove the case, the appellant produced and marked Exts.A1
to A7 before the Tribunal.
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. 2,28,400/- 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. Heard the counsel for the petitioner as well as the learned
Standing Counsel appearing for the 3rd respondent Insurance
Company.
8. The sole question that arises for consideration is whether the
quantum of compensation awarded by the Tribunal is reasonable and
just.
9. Ext.A1 is the copy of the FIR registered against the 2nd
respondent herein and Ext.A3 is the copy of the final report in the
above said crime. Ext.A1 and A3 prima facie prove that the accident
was solely on account of negligence on the part of the 2nd respondent,
who was riding the offending bus bearing Reg. No. KL-8-S-3657 and
there was no contra evidence adduced. Therefore, the Tribunal has
held that the accident occurred owing to negligent driving of 2nd
respondent. 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.
10. The appellant had claimed that she is a Tailor, aged 64 and
was having a monthly income of Rs.14,000/-. The Tribunal fixed the
notional income of the appellant at Rs.4000/- and the appellant
claimed that the Tribunal went wrong in fixing Rs.4,000/- as notional
income.
11. Taking into consideration the fact that the appellant is a
tailor, I feel that the notional income fixed by the Tribunal appears to
be wrong. Even in the case of a Coolie worker, the Apex Court in
Ramachandrappa vs. Manager, Royal Sundaram Alliance
Insurance Company Ltd [(2011) 13 SCC236] has fixed the
notional income as Rs.4,500/- per month in the year 2004. The
Hon'ble 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 the decisions as referred above and the fact that the
appellant is employed as a tailor, I feel that an amount of Rs. 8000 per
month can be fixed as notional income of the appellant.
12. Under the head Loss of Earnings an amount of Rs.40,000/-
was allowed by the Tribunal on finding that there is loss of income for
ten months and by fixing the notional income per month at Rs.4,000/-.
Due to the enhancement of notional income to Rs.8000/-, the amount
due to the appellant under the head of Loss of Earnings is fixed at
Rs.80,000/- (8000 x 10) instead of Rs.40,000/- 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.38,400/- (4000 x 5 x 12 x 16/100 ) under this head. Exhibit A7 is
the Disability Certificate which shows 16% whole body permanent
physical disability. Tribunal took the multiplier of 5. Considering the
age of the appellant, which was 64 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 proper multiplier to be
applied in this case is 7. Since notional income has been increased by
this Court from Rs.4,000/- to 8,000/-, the appellant is entitled to a
total amount of Rs.1,075,20/- (8000 x 7 x 12 x 16/100) as
compensation for permanent disability instead of Rs.38,400/- fixed by
the Tribunal.
14. Towards loss of amenities in life, the Tribunal has awarded
Rs.20000/. Taking into consideration the disability suffered by the
appellant, nature of the injury which clearly affects the avocation of
tailoring undertaken by the appellant, I find that an amount of Rs.
25000/- will be a just and reasonable compensation under the said
head.
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 decisions cited supra, I am of
the firm opinion that the appellant is entitled for enhancement of
compensation as modified and recalculated above and as given in the
table below for easy reference.
Head of claim Amount Amounts
Actual increase as
Awarded by modified and
per the
the Tribunal recalculated
recalculation by
(in Rs.) by this Court
this Court(Rs.)
(in Rs.)
Loss of Earning 40,000/- 80000/- 40,000/-
Medical Expenses 74,600 74,600/- --
Bystander Expenses 4,400/- 4,400 --
Transportation expenses 2000/- 2000/- --
Extra nourishment 2000/- 2000/- --
Damage to clothing 1,000/- 1000/- --
Pain and suffering 40,000/- 40,000/- --
Compensation for the
continuing or permanent 38,400/- 1,07,520/- 69,120/-
disability
Compensation for loss of
-- -- --
earning power
Loss of amenities and
20000 25000 5000/-
enjoyment of life
Personal assistance 6000 6000 --
Total 2,28,400 3,42,520 1,14,120/-
16. The appellant/petitioner had claimed only an amount of
Rs.2,80,000 as compensation before the Tribunal and this Court
taking into consideration the circumstances of the case including the
nature of injury and disability and on a proper analysis of the law laid
down by the Apex Court, have entered a finding that an amount of
Rs.3,42,520/- would be just and reasonable compensation. The Apex
Court in Nagappa vs. Gurudayal Singh and Others, (2003) 2
SCC 274 and in Rajesh vs. Rajbir Singh, (2013 (3) KLT 89
(SC) has held that it is the duty of the court to award a just, equitable,
fair and reasonable compensation if necessary by ignoring the claim
made in the application for compensation.
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.1,14,120/- with interest at the rate of 8% per annum 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, after deducting the liability, if any of the
appellant/petitioner towards balance court fee. The Tribunal shall
disburse the compensation to the appellant/petitioner in accordance
with the law.
sd/-
VIJU ABRAHAM,JUDGE
pm
