Kerala High Court
Annakody vs Sivankunju on 1 September, 2021
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MACA No.1837 of 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 1ST DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943
MACA NO. 1837 OF 2011
AGAINST THE ORDER/JUDGMENT IN OPMV 698/2006 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL PALA, KOTTAYAM
APPELLANT/S:
ANNAKODY,W/O.GURUSWAMY
PUTHENVEEDU HOUSE,, VALLAKADAVU KARA, PERIYAR
VILLAGE,, NOW RESIDING AT PARACKATTU HOUSE,,
VALLICHIRA KARA AND VILLAGE.
BY ADVS.
SRI.MATHEW JOHN (K)
SRI.DOMSON J.VATTAKUZHY
RESPONDENT/S:
1 SIVANKUNJU, S/O.NARAYANAN
CHAMPION MOTORS, MUNDAKKAYAM.
2 E.C. VARGHESE, ELAVUMMOOTTIL HOUSE
NALUNNACKAL.P.O, VAKATHANAM, KOTTAYAM.
3 THE BRANCH MANAGER,ORIENTAL INSURANCE COMPANY LTD.
BRANCH OFFICE, P.B. NO.8,, JYOTHI SUPER
BAZAR,THODUPUZHA.
BY ADVS.
K.S.SANTHI
SMT.V.GEETHA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME
UP FOR ADMISSION ON 01.09.2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
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MACA No.1837 of 2011
C.S.DIAS, J.
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MACA No.1837 of 2011
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Dated this the 1st day of September, 2021.
JUDGMENT
The appellant was the petitioner in OP (MV)
No.698/2006 on the file of the Motor Accidents Claims
Tribunal, Pala. The respondents in the appeal were the
additional respondents 7 to 9 before the Tribunal. The
respondents, 1,2 and 3 before the Tribunal, the driver,
owner and insurer of the Jeep, and the additional
respondents 4 to 6, the legal representatives of the
deceased second respondent, are not impleaded as parties
in the appeal. Therefore, the parties are, for the sake of
convenience, referred to as per their status in the claim
petition.
2. The petitioner had filed the claim petition under
Section 166 of the Motor Vehicles Act, 1988, claiming
MACA No.1837 of 2011
compensation on account of the injuries she sustained in a
motor accident that took place on 10.2.2006.
3. The relevant facts in the claim petition, for the
determination of the appeal, are: On 10.2.2006 while the
appellant was travelling in a Jeep bearing registration
No.KL-7/D-3703 (Jeep) through the National Highway 220,
a bus bearing registration No.KL-5/R 1048 (bus) came from
the opposite direction hit on the Jeep. The appellant
sustained serious injuries and was treated as an inpatient
for a period of 19 days at the Taluk Headquarters Hospital,
Kanjirapally and, thereafter, at the Medical College
Hospital, Kottayam. The appellant was a daily labourer and
earning a monthly income of Rs.3,500/-. The accident
occurred due to the rash and negligent driving of the
drivers of the Jeep and Bus. Therefore, the second
respondent and the eighth respondent - the owners of the
vehicles vicariously liable to pay the compensation.
Consequently, it was their insurers, namely, the third
MACA No.1837 of 2011
respondent and ninth respondent who were liable to
indemnify the liability of the owners of the bus and Jeep.
Hence, the petitioner claimed a compensation of
Rs.1,50,000/- from the respondents.
4. The respondents 1 and 2 did not contest the
proceeding. The third respondent filed a written-statement
contending that the Jeep was covered by an 'Act Policy'.
There was no negligence on the part of the first respondent
in causing the accident. It was due to the negligence of the
seventh respondent that the accident occurred. Therefore,
it is only the ninth respondent who was liable to pay
compensation.
5. The respondents 4 to 6 filed a written-statement
contending that the Jeep was validly covered by an
insurance policy. There was no negligence on the part of
the first respondent.
6. The ninth respondent filed a written-statement
admitting that the bus had a valid insurance policy.
MACA No.1837 of 2011
However, it was contended that there was no negligence on
the part of the seventh respondent. Hence, the ninth
respondent prayed that the claim petition be dismissed.
7. The petitioner got herself and a witness examined
as PWs 1 and 2 and marked Exts A1 to A12 in evidece. The
ninth respondent produced Exts B1 and B2 in evidence.
8. The Tribunal, after considering the pleadings and
materials on record, by the impugned award allowed the
claim petition in part, by permitting the petitioner to realise
from the ninth respondent an amount of Rs.75,900/- with
interest @ 9% per annum from the date of deposit till the
date of realisaton, and costs of 2,400/-.
9. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioner is in appeal
10. Heard Sri.Mathew John, the learned counsel
appearing for the appellant/petitioner and Sri.George A.
Cherian, the learned counsel appearing for the third
respondent in the appeal/ninth respondent/insurer .
MACA No.1837 of 2011
11. The question that emerges for consideration in the
appeal is whether the quantum of compensation awarded
by the Tribunal is reasonable and just.
Negligence and liability
12. Ext A6 final report filed by the Vandiperiyar Police
in crime No.35/2006 before the Judicial First Class
Magistrate, Peerumedu, clearly substantiates that the
accident occurred due to the negligence of the seventh
respondent. Undisputedly, the eighth respondent was the
owner and the ninth respondent was the insurer of the bus.
Therefore, it is the ninth respondent who is to indemnify
the eighth respondent of his liability arising out of the
accident.
Notional Income
13. The petitioner had claimed that she was a daily
wage labourer earning a monthly income of Rs.3,500/- .
The Tribunal fixed the monthly income of the petitioner at
Rs.3,000/- per month.
MACA No.1837 of 2011
14. The Hon'ble Supreme Court in Ramachandrappa
v. Manager, Royal Sundaram Alliance Insurance
Company Limited [(2011) 13 SCC 236] has fixed the
notional income of a coolie worker in the year 2004 at
Rs.4,500/- per month.
15. Following the ratio in the aforecited decision and
keeping in mind the fact that the accident occurred in the
year 2006, I fix the notional income of the petitioner at
Rs.3,500/- per month.
Loss of earnings
16. In view of the refixation of the notional income of
the petitioner at Rs.3500/- per month, I fix the loss of
earnings at Rs.7,000/- instead of Rs.6,000/- awarded by the
Tribunal.
Loss due to disability
17. The petitioner had produced Ext A9 medical
certificate issued by a Consultant Orthopedic Surgeon,
who has certified that as the right elbow of the petitioner is
MACA No.1837 of 2011
ankylosed in 90 degrees and her right shoulder abduction is
restricted to 110 degrees, the petitioner's permanent
disability for the above injuries is assessed at 17% as per
Mc Bride's Scale Page 69 and 75. Nevertheless, the
Tribunal after going through Mc Bride's Composite
Schedule of Representative Disabilities ad Graded Ratings,
fixed the disability of the petitioner at 8%.
18. Undisputedly Ext A9 certificate was marked
without any objection or subject to proof.
19. In Paragraph 12 in Raj Kumar vs. Ajaykumar
[2011 (1) KLT 620(SC)] the Hon'ble Supreme Court has
held that if the Tribunal is not satisfied with the disability
certificate produced by the claimant/injured, then the
Tribunal has to constitute a Medical Board from reputed
Hospitals/Medical Colleges and refer the claimant to such
Medical Board for assessment of the disability. If not, the
Tribunal has to accept the certification made in the
disability certificate.
MACA No.1837 of 2011
20. In Union of India and another vs. Talwinder
Singh [(2012) 5 SCC 480] , the Hon'ble Supreme Court
has held that the Courts should not ordinarily interfere with
the opinion of experts. It would be safe for the Courts to
leave the decision of the experts, who are more familiar
with the problems rather than expressing its general
opinion.
21. Following the ratio in Talwinder Singh and Raj
Kumar (supra), and taking note of the fact that as per Ext
A9 the petitioner's disability is fixed at 17%, I am of the
firm opinion that the disability assessed in Ext A9 can be
taken as the functional disability of the petitioner.
Accordingly, I fix the functional disability of the petitioner
at 17% as certified in Ext A9.
22. Consequently, as the petitioner was aged 37 years
as on the date of accident, her monthly income being fixed
at Rs.3,500/-, and the relevant multiplier being 15, I refix
the compensation for loss due to disability at Rs.1,07,100/-
MACA No.1837 of 2011
instead of Rs.38,400/- awarded by the Tribunal.
Pain and sufferings
23. The appellant had claimed an amount of
Rs.50,000/- under the head pain and sufferings. The
Tribunal awarded an amount of Rs.18,000/- under the said
head.
24. Taking into account the serious injuries sustained
by the petitioner and that she was indisposed for a period
of 19 days and has sustained a disability at 17%, I hold that
the compensation under the above head has to be fixed at
Rs.25,000/-, that is to award an enhancement by
Rs.7,000/-.
Bystander expense
25. It is on record that the petitioner was treated as
inpatient for a period of 19 days. The Tribunal only
awarded an amount of Rs.1,500/- towards bystander
expenses, which according to me is on the lower side.
Therefore, I re-fix the bystander expenses at Rs.200/- per
MACA No.1837 of 2011
day for a period of 19 days. Accordingly, I refix the
compensation under the said head at Rs.3,800/-, instead of
Rs.1,500/- awarded by the Tribunal.
Other heads of claim
26. With respect to the other heads of claim, I find
that the Tribunal has awarded reasonable and just
compensation.
27. On a comprehensive re-appreciation of the
pleadings, materials on record and the law referred to in
the afore-cited precedents, I am of the firm opinion that
the appellant is entitled for enhancement of compensation
as modified and re-calculated above, and given in the table
below for easy reference.
SI. Head of claim Amount Amounts
No awarded by the modified
Tribunal (in and
rupees) recalculated
by this
Court
1 Medical Expenses 500/- 500/-
2 Loss of earnings 6,000/- 7,000/-
3 Bystander expenses 1,500/- 3,800/-
MACA No.1837 of 2011
4 Extra nourishment 250/- 250/-
5 Damage to clothing 250/- 250/-
6 Transport to hospital 2,000/- 2,000/-
7 Pain and sufferings 18,000/- 25,000/-
8 Permanent disability 38,400/- 1,07,100/-
resulting in loss of earning
capacity
9 Loss of amenities 9,000/- 9,000/-
Total 75,900/- 1,54,900/-
In the result, the appeal is allowed by enhancing the
compensation by a further amount of Rs.79,000/- (Rupees
Seventy Nine Thousand only) with interest at the rate of
9% per annum from the date of claim petition till the date
of realisation, after deducting the period of 1026 days ,
i.e., the period of delay in preferring the appeal and as
ordered by this Court on 4.6.2012 in C.M Appln
2762/2011, and a cost of Rs.3,000/-. The third
respondent/insurer is ordered to deposit the enhanced
compensation awarded in this appeal before the Tribunal
together with interest and cost within a period of two
MACA No.1837 of 2011
months from the date of receipt of a certified copy of the
judgment. The Tribunal shall disburse the enhanced
compensation to the appellant, in accordance with law.
Sd/-
C.S.DIAS
SKS/1.9.2021 JUDGE
