Kerala High Court
Liji Suresh Kumar vs Anil Kumar on 27 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
SATURDAY,THE 27TH DAY OF NOVEMBER 2021/6TH AGRAHAYANA, 1943
MACA NO. 1588 OF 2015
AGAINST THE AWARD DATED 09.03.2015 IN O.P.(MV) NO.806 OF
2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA
APPELLANT:
LIJI SURESH BABU,
W/O.SURESH BABU, VELIYATHUPARAMBIL HOUSE,
THAZHEKADU DESOM & VILLAGE, KALLETTUMKARA P O,
MUKUNDAPURAM TALUK, THRISSUR DISTRICT.
BY ADV SRI.A.N.SANTHOSH
RESPONDENTS:
1 ANIL KUMAR
S/O.NARAYANAN NAIR, KOORIKKATTIL HOUSE,
IRANIKULAM, MALA P O - 680732
2 SHRIRAM GENERAL INSURANCE COMPANY LTD
10003-E-8,RIICO, INDUSTRIAL AREA, SITAPURA,
JAIPUR, RAJASTHAN-504216.
BY ADVS.
SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR FINAL HEARING ON 20.11.2021, THE COURT ON 27.11.2021
DELIVERED THE FOLLOWING:
2
M.A.C.A.No.1588 of 2015
P.G. AJITHKUMAR, J.
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M.A.C.A.No. 1588 of 2015
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Dated this the 27th day of November, 2021
JUDGMENT
Appeal under Section 173 of the Motor Vehicles Act,
1988. The appellant was the petitioner in O.P.(MV) No.806 of
2010 on the file of the Motor Accidents Claims Tribunal,
Irinjalakkuda. The respondents in the appeal were the
respondents before the Tribunal.
2. The appellant had filed the claim petition under
Section 166 of the Act, claiming compensation on account of
the injuries that she sustained in an accident on 17.06.2010.
It was her case that, on the aforesaid day at 7.15 p.m., while
she was riding a motorcycle bearing Reg.No.KL-08-M-1245
along Thommana-Thumboor Road and when he reached near
Kacheripady, a bus bearing Reg.No.KL-08-Y-6879 hit against
the motorcycle. As a result, the appellant sustained injuries
and was taken to Sacred Heart Hospital, Pullur. She sustained
a fracture of the shaft of right humerus. She had to undergo
treatment as an inpatient from 17.06.2010 to 25.06.2010.
M.A.C.A.No.1588 of 2015
The incident had occurred as a result of rash and negligent
driving of the bus driver.
3. The appellant was a tailor by profession and she
was earning Rs.6,000/- per month.
4. The 2nd respondent had filed a written statement in
the claim petition refuting the allegations. The 2 nd respondent
also disputed the age, income and occupation of the appellant
in the claim petition. However, the 2 nd respondent admitted
that the vehicle had a valid insurance coverage.
5. O.P.(MV) No.806 of 2010 was tried along with O.P.
(MV) No.805 of 2010, which was filed by the pillion rider of
the vehicle driven by the appellant. Exts.A1 to A11 were
marked in evidence and PW1, the Doctor, who examined and
issued disability certificate in respect of the appellant, was
examined. The respondents produced Ext.B1, the policy of
insurance of the bus.
6. The Tribunal, after analysing the pleadings and
materials on record, by its award dated 09.03.2015, allowed
the claim petition in part, by permitting the appellant to
recover from the 2nd respondent an amount of Rs.1,07,860/-,
M.A.C.A.No.1588 of 2015
with interest and costs.
7. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the appellant is in appeal.
8. Heard the learned counsel appearing for the
appellant and the learned counsel appearing for the 2 nd
respondent.
9. The sole question that arises for consideration in
this appeal is whether the quantum of compensation awarded
by the Tribunal is just and reasonable.
10. On appreciation of the pleadings and materials on
record, the Tribunal has awarded Rs.15,000/- as
compensation for pain and suffering. The injury sustained was
a fracture of the shaft of right humerus. Naturally, the
appellant should have undergone treatment for a long period
on account of the nature of injuries. Considering those
aspects, I deem it appropriate that the compensation for pain
and suffering can be refixed as Rs.20,000/-.
11. The Tribunal has fixed Rs.3,000/- as the monthly
income of the appellant. The learned counsel appearing for
the appellant contended that in the light of the principles laid
M.A.C.A.No.1588 of 2015
down in Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Company Limited [(2011) 13 SCC
236] and as explained the principle in Gopinathan A. and
others v. Afzal Basha and another [2020 3 KHC 666],
the Tribunal ought to have fixed the notional monthly income
as 7,500/-. The learned counsel appearing for the respondent,
on the other hand, would contend that when the appellant
asserted that the income she was getting during the period
was Rs.6,000/- the guideline laid down in
Ramachandrappa's case cannot be applied.
12. Going by the principle in Ramachandrappa's case
the notional income of the appellant needs to be fixed at
Rs.7,500/-, having the accident occurred in 2010. In
Gopinathan A. (supra) this Court, following the ratio in
Ramachandrappa, held that even in a case where the
notional monthly income claimed in the claim petition is on
the lower side, the principle in Ramachandrappa's case and
Syed Sadiq v. Divisional Manager, United India
Insurance Co. Ltd. [(2014) 2 SCC 735] has to be followed
for fixing the notional income. Considering the fact that the
M.A.C.A.No.1588 of 2015
accident occurred in the year 2010, I hold that the appellant's
notional income can be taken as Rs.7,500/- per month.
Therefore, 'loss of earnings' awarded by the Tribunal for three
months as Rs.10,500/-, can be enhanced to Rs.22,500/-
(Rs.7500 x 3). The enhancement is Rs.12,000/-.
13. In the place of the fixation by the Tribunal of an
amount of Rs.15,000/- as compensation for pain and
suffering, I re-fix the compensation for 'pain and sufferings' at
Rs.20,000/-, i.e., an enhancement of Rs.5,000/-.
14. The Tribunal has taken the multiplier as '16'. It is
incorrect going by the decision in National Insurance Co.
Ltd vs Pranay Sethi [(2017) 16 SCC 680]. The correct
multiplier is '15', since the appellant was aged 36 years at the
time of the accident. The learned counsel for the appellant
submitted that the Tribunal assessed disability as 5%,
deviating from Ext.A5. He would contend that the doctor, who
issued Ext.A5, certifying that the disability was 10%, the
Tribunal should not have deviated from it. The learned
Tribunal after considering all attending circumstances took the
view that 5% disability occassioned to the appellant. I find no
M.A.C.A.No.1588 of 2015
reason to upset that finding. Hence, the compensation for
permanent disability is refixed as Rs.7,500 x 12 x 15 x 5% =
67,500. Hence the compensation under the head 'permanent
disability' is Rs.67,500 - 33,600 = 33,900/-.
15. With respect to other heads of compensation, I find
that the Tribunal has awarded reasonable and just
compensation.
In the result, the appeal is allowed in part, by enhancing
the compensation by an amount of Rs.50,900/- with interest
at the rate of 7.5% per annum on the enhanced amount, from
the date of petition till the date of deposit, and a costs of
Rs.3,000/-. The 2nd respondent is ordered to make payment of
the enhanced compensation with interest and costs through
the Tribunal within sixty days from the date of receipt of a
certified copy of the judgment. The Tribunal shall see that the
amount of enhanced compensation is duly disbursed to the
appellant in accordance with law.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
