Kerala High Court
Jeena vs Satheesh Babu K on 1 September, 2021
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. 1619 OF 2011
AGAINST THE AWARD DATED 25.03.2011 IN OP(MV)NO.1352/2009 OF
PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE.
APPELLANT/PETITIONER:
JEENA,
W/O.LATE GOPALAKRISHNAN,
JEEBAS,VALLIKUNNU AMSOM AND DESOM,
P.O.KADALUNDI NAGARAM,VALLIKUNNU,
ATHANIKKAL,MALAPPURAM.
BY ADV SRI.JACOB ABRAHAM
RESPONDENTS/RESPONDENTS:
1 SATHEESH BABU K,
SON OF BALAN.K.,
24/09,KOLANGOTTY THARAVEEDU,
PERUMUKHOM.P.O,
KOZHIKODE.
2 MURALEEDHARA PANICKER,
SON OF BHAKARA PANICKER,
THIRUMALAYIL KALLARIKKAL,
BEYPORE AMSOM AND DESOM,
P.O.BEYPORE,
KOZHIKODE-673015.
3 RELIANCE GENERAL INSURANCE CO.LTD,
OPPOSITE TAGORE CENTENARY HALL,
KOZHIKODE-673332.
BY ADV SRI.K.B.RAMANAND
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 01.09.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
M.A.C.A.No.1619/2011
-:2:-
Dated this the 1st day of September, 2021
JUDGMENT
The appellant was the petitioner in O.P.(MV)
No.1352/2009 on the file of the Principal Motor
Accidents Claims Tribunal, Kozhikode. The
respondents in the appeal were the respondents before
the Tribunal.
2. The appellant had filed the claim petition
under Section 166 of the Motor Vehicles Act, 1988,
claiming compensation on account of the injuries that
she sustained in an accident on 10.08.2008.
3. The facts in brief, relevant for the
determination of the appeal, are: On 10.08.2008, while
the appellant was travelling along with her
M.A.C.A.No.1619/2011
husband(Gopalakrishnan) from Vallikkunnu to
Kozhikode on a motorcycle bearing registration
No.KL-11-R-5996, when they reached the old Feroke
bridge, a mini bus bearing registration
No.KL-11/L-3015(bus), driven by the first respondent
in a rash and negligent manner, hit the motorcycle.
The appellant and her husband were thrown on the
road and sustained serious injuries. Both of them were
taken to the Koya's Hospital, Feroke and from there to
the Medial College Hospital, Kozhikode. The
appellant's husband succumbed to the injuries on the
same day. The appellant was unconscious for a period
of three days and treated as an inpatient for five days.
The appellant sustained severe head injuries and
disfigurement. The appellant was a business lady by
profession and earning a monthly income of Rs.5,000/-.
The bus was owned by the second respondent and
insured with the third respondent. The appellant
claimed a total amount of Rs.5,00,000/- as
M.A.C.A.No.1619/2011
compensation from the respondents.
4. The respondent Nos.1 and 2 did not contest
the proceedings and were set ex parte.
5. The third respondent filed a written
statement, refuting the allegations in the claim
petition. It was contended that the accident occurred
also due to the negligence of the deceased-husband of
the appellant. The third respondent further contended
that the compensation claimed by the appellant was on
the higher side; but admitted that the bus had a valid
insurance coverage.
6. The appellant examined herself as PW1 and
marked Exts.A1 to A17 in evidence. The report of the
Medial Board was marked as Ext.C1.
7. The Tribunal, after analysing the pleadings
and materials on record, allowed the claim petition in
part, by permitting the appellant to realise an amount
of Rs.2,64,984/- with interest at the rate of 7% per
annum and a cost of Rs.1,000/- from the third
M.A.C.A.No.1619/2011
respondent.
8. Dissatisfied with the quantum of
compensation awarded by the Tribunal, the appellant
is in appeal.
9. Heard; Sri. Jacob Abraham, the learned
counsel appearing for the appellant/petitioner and Sri.
K.B. Ramanand, the learned counsel appearing for the
third respondent/insurer.
10. The sole question that emerges for
consideration in the appeal is whether the quantum of
compensation awarded by the Tribunal is reasonable
and just?
Liability and negligence:
11. Ext.A4 final report filed by the City Traffic
Police, Kozhikode in Crime No.2620/2008 clearly
proves that the accident occurred due to negligence of
the first respondent. Undisputedly, the second
respondent was the owner and the third respondent
was the insurer of the bus. Therefore, it is the third
M.A.C.A.No.1619/2011
respondent who is to indemnify the liability of the
second respondent arising out of the accident.
Notional income:
12. The appellant had claimed that she was a
business woman by profession and earning a monthly
income of Rs.5,000/-. The Tribunal, for want of
materials, fixed the notional income of the appellant at
Rs.4,000/- per month.
13. In Ramachandrappa v. Manager, Royal
Sundaram Alliance Insurance Company Limited
[(2011) 13 SCC 236], the Hon'ble Supreme Court has
fixed the notional income of a coolie worker in the year
2004, at Rs.4,500/- per month.
14. Following the ratio in the afore-cited decision
and keeping in mind the fact that the accident
occurred in the year 2008 and the appellant was a
business woman by profession, I am of the opinion that
the appellant's notional income can safely be fixed at
M.A.C.A.No.1619/2011
Rs.5,000/- as claimed in the claim petition.
Loss of earnings:
15. It is on record that the appellant had
sustained serious injuries, including head injury and
fracture of the Squamous Temporal Bone ® side, as
evidenced by Ext.A2 wound certificate, Ext.A6
proceedings of the Medial College Hospital, Kozhikode
and Ext.C1 disability certificate issued by the Medial
Board. The Tribunal has found that the appellant was
incapacitated for a period of six months.
16. In view of the re-fixation of the notional
income of the appellant at Rs.5,000/- per month, I
enhance the compensation for 'loss of earnings' by a
further amount of Rs.6,000/-.
Loss due to disability:
17. As per Ext.C1-permanent disability certificate
of the Medial Board, it is found that the appellant has
permanent disability of 25% due to the right third
nerve palsy with diplopia in the primary position,
M.A.C.A.No.1619/2011
downgaze and upgaze and partial optic atrophy right
eye and memory disturbances following the accident.
18. The Tribunal accepted Ext.C1 disability
certificate and fixed the appellant's functional
disability at 25%. In view of the disability assessed by
Ext.C1, I do not find any reason to differ from the
finding expressed by the duly constituted Medical
Board. Hence, I confirm the findings of the Tribunal
that the appellant had functional disability at 25%.
19. However, due to the re-fixation of the
notional income of the appellant at Rs.5,000/- per
month, I re-fix the compensation for 'loss due to
disability' at Rs.2,40,000/- instead of Rs.2,04,000/-
fixed by the Tribunal.
Loss of amenities
20. The appellant had claimed an amount of
Rs.25,000/- as compensation for 'loss of amenities'.
Nevertheless, the Tribunal did not award any amount
under the said head.
M.A.C.A.No.1619/2011
21. It is on record, as per Ext.A2 wound
certificate, Ext.A6 proceedings of the Medical College
Hospital, Kozhikode and Ext.C1 disability certificate
that the appellant had sustained serious injuries and
was incapacitated for a period of six months. She has
also sustained a permanent disability of 25%. In the
said circumstances, I of the considered opinion that
the appellant is entitled for compensation for 'loss of
amenities' at Rs.25,000/-
22. With respect to the other heads of
compensation, I find that the Tribunal has awarded
reasonable and just compensation.
23. On a overall re-appreciation of the pleadings,
materials on record and the law referred to in the
afore-cited precedent, I am of the definite opinion that
the appellant/petitioner is entitled for enhancement of
compensation as modified and re-calculated above and
given in the table below for easy reference.
M.A.C.A.No.1619/2011
Sl.No Head of claim Amount Amounts
awarded by the modified
Tribunal (in and
rupees) recalculated
by this
Court
1 Loss of earnings 24000 30,000
2 Transport to 1,000 1,000
Hospital
3 Damage to 1,000 1,000
Clothing
4 Bystander 1,300 1,300
expenses
5 Extra nourishment 1,500 1,500
6 Medical expenses 7,184 7,184
7 Pain and sufferings 25,000 25,000
8 Loss of amenities Nil 25,000
9 Loss due to 2,04,000 2,40,000
disability
Total 2,64,984 3,31,984
In the result, the appeal is allowed by enhancing
the compensation by a further amount of Rs.67,000/-
with interest at the rate of 7% per annum from the
date of petition till the date of deposit and a cost of
Rs.3,000/-. The third respondent is directed to deposit
the enhanced compensation with interest and costs
M.A.C.A.No.1619/2011
before the Tribunal within a period of sixty days from
the date of receipt of a certified copy of this judgment.
The Tribunal shall disburse the enhanced
compensation to the appellant/petitioner in accordance
with law
All pending interlocutory applications will stand
closed.
Sd/-
C.S.DIAS,JUDGE
DST //True copy/
P.A.To Judge
