Kerala High Court
Kadeeja vs The Branch Manager, New India ... on 24 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 24TH DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943
MACA NO. 952 OF 2013
AGAINST THE AWARD DATED 07.09.2012 IN OPMV NO.173/2010 OF MOTOR
ACCIDENTS CLAIMS TRIBUNAL, KALPETTA, WAYANAD
APPELLANT/PETITIONER:
KADEEJA
AGED 50 YEARS, W/O.KUNHIKKAMMU,
AREEKKUZHIYIL HOUSE, WARIAD,
KAKKAVAYAL POST, WAYANAD DISTRICT.
BY ADV SMT.CELINE JOSEPH
RESPONDENT/RESPONDENT NO.3:
THE BRANCH MANAGER,
NEW INDIA ASSURANCE COMPANY LTD
P.B.NO.43, N.S.TOWERS,
NEAR STADIUM BUS STAND,
PALAKKAD-13.
BY ADV.SRI.JOHN JOSEPH VETTIKKADU
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 02.09.2021, THE COURT ON 24.09.2021 DELIVERED
THE FOLLOWING:
MACA No.952 OF 2013
2
T.R.RAVI, J.
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M.A.C.A.No. 952 of 2013
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Dated this the 24th day of September, 2021
JUDGMENT
On 17.4.2009, the appellant was travelling in a bus from
Kozhikode to Perinthalmanna. A lorry hit the bus and the appellant
sustained serious injuries. The appellant was 48 years old at the
time of the accident and was working as a Coolie. She was admitted
in a hospital and had to remain there for 23 days as inpatient. The
Medical Board assessed her whole body disability as 43% and
functional disability as 66%. The appellant claimed that she was
earning Rs.6,000/- per month at the time of the accident. She
preferred a claim before the Motor Accidents Claims Tribunal,
Kalpetta. The Tribunal awarded a sum of Rs.3,43,940/-. The
appellant has filed this appeal seeking enhancement of the amount
awarded by the Tribunal.
2. Heard Smt.Celine Joseph on behalf of the appellant and
Sri. John Joseph Vettikkad on behalf of the respondent.
3. The counsel for the appellant submitted that the Tribunal
has awarded niggardly amounts towards compensation under the
MACA No.952 OF 2013
heads pain and suffering, loss of amenities and loss of earning. It is
submitted that the Tribunal fixed a notional income of only Rs.3,000/-
as against the claim for Rs.6,000/-. It is submitted that the Tribunal
also did not allow any future prospects for which the appellant is
entitled to going by the decisions of the Hon'ble Supreme Court in
Jagdish v. Mohan and others reported in [(2018) 4 SCC 571]
and Syed Sadiq & others v. Divisional Manager, United India
Insurance Company Ltd. reported in [(2014) 2 SCC 735].
According to the learned counsel, the Tribunal ought to have allowed
at least the earnings for one year as compensation for loss of
earnings as against the period of three months granted. The further
claim is that being a person in the unskilled category, she should
have been awarded at least 25% towards future prospects. It is also
contended that the disability was assessed at 43% as against the
functional disability of 66%.
4. Sri.John Joseph Vettikkad, learned counsel appearing for
the insurer, submitted that no evidence was let in to show that the
appellant was kept out of employment for one year and since she was
treated as inpatient for 23 days a maximum of 6 months can be
taken for assessing the loss of earnings. The counsel fairly submitted
that going by Ramachandrappa v. Royal Sundaram Alliance
MACA No.952 OF 2013
Insurance Co.Ltd., reported in [(2011) 13 SCC 236], the monthly
income can be notionally fixed at Rs.6,000/- as claimed, and since
there is already an assessment by the Medical Board which is not
challenged, 66% functional disability can be granted. It is further
submitted that the Tribunal has granted reasonable amount under the
other heads of compensation, and there is no requirement to grant
enhancement on the compensation awarded for pain and suffering
and amenities.
5. Considering the contentions raised by the counsel on
either side, since the accident happened on 17.4.2009, I am of the
opinion that the notional income of the appellant can be fixed at
Rs.6,000/- for the purpose of calculating the loss of earnings and an
additional 25% can be made towards future prospects for the
purpose of calculating the compensation under the head permanent
disability. Regarding loss of earnings, in the absence of evidence
other than the evidence available regarding the nature of the injuries
and the period of treatment as inpatient, I am of the opinion that the
appellant can be granted loss of earnings at the rate of Rs.6,000/-
per month for a period of 6 months. As per Exhibit A5 wound
certificate issued from Baby Memorial Hospital, Kozhikode, it can be
seen that the appellant had suffered fracture of the right humerus,
MACA No.952 OF 2013
right radius and right ulna, right radial nerve palsy and lacerated
wounds. The appellant was assessed by the District Medical Board,
Wayanad, and they found that she has permanent disability of 43%
going by the McBride scale for the whole body and on assessment as
per the National Institute of Orthopaedically Handicapped scale, she
has suffered a permanent disability of 66%. I am of the opinion that
the Tribunal ought to have taken the permanent disability at 66%
since it is the functional disability assessed. The report of the Medical
Board also shows that the appellant had difficulty for lifting weight,
for carrying out household activities, partial ankylosis of the right
shoulder and elbow with 50% loss of movements. Going by the
nature of the injuries and the permanent disability suffered by the
appellant, I am of the opinion that the amount awarded under the
heads pain and suffering and loss of amenities should be increased to
Rs.40,000/- and Rs.25,000/- respectively. The Tribunal has granted
Rs.5,000/- towards loss of earning power, which is not justified since
the applicant is being awarded compensation under the head
permanent disability. The bystander expenses also shall be increased
to Rs.200/- per day. On the basis of the above, the amount of
compensation is recalculated in the manner shown in the table below
MACA No.952 OF 2013
Sl.No. Head of Claim Amount Amount Amount
claimed (Rs.) awarded awarded as
(Rs.) modified in
the judgment
(Rs.)
1 Loss of Earning 72,000/- 9,000/- 36,000/-
2 Medical & Miscellaneous 1,50,000/- 93,600/- 93,600/-
expenses
3 Future Treatment Nil 5,000/- 5,000/-
4 Bystander expenses 25,000/- 2,300/- 4,600/-
5 Transportation expenses 5,000/- 5,000/- 5,000/-
6 Extra nourishment 10,000/- 2,300/- 2,300/-
7 Damage to clothing 2,000/- 500/- 500/-
8 Pain and suffering 50,000/- 15,000/- 40,000/-
9 Compensation for 2,00,000/- 2,01,240/- 7,72,200/-
permanent Disability
10 Loss of amenities and 50,000/- 5,000/- 25,000/-
conveniences caused
11 Loss of earning power 50,000/- 5,000/- NIL
Total 6,14,000/- 3,43,940/- 9,84,200/-
limited to
Rs.4,00,000/-
6. In the result, the appeal is allowed. The compensation
granted by the Tribunal is enhanced by a further sum of
Rs.6,40,260/- (Rupees Six lakhs Forty Thousand Two Hundred
and Sixty only) with interest at 9% per annum on the enhanced
compensation from 23.2.2010 till the date of realisation, with
proportionate costs. The respondent shall deposit the additional
compensation granted in this appeal along with the interest and
proportionate costs, before the Tribunal within two months from the
MACA No.952 OF 2013
date of receipt of a certified copy of this judgment, after deducting
any amount to which the appellant is liable towards balance court fee
and legal benefit fund. The disbursement of the compensation to the
appellant shall be in accordance with law.
Sd/-
T.R. RAVI,
JUDGE
dsn
