Kerala High Court

Elsy Varghese vs Mathan & Others on 13 January, 2022

MACA NO. 1702 OF 2009
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          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
                THE HONOURABLE MR.JUSTICE C.S.DIAS
 THURSDAY, THE 13TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943
                      MACA NO. 1702 OF 2009
    AGAINST THE ORDER/JUDGMENT IN OPMV 422/2003 OF    MOTOR
                ACCIDENT CLAIMS TRIBUNAL ,KALPETTA
APPELLANT/S:

         ELSY VARGHESE, AGED 34 YEARS
         W/O.P.K.VARGHESE, PUTHENPURACKAL HOUSE,, MANDAD
         P.O., KALPETTA(VIA), VYTHIRI TALUK,, WAYANAD
         DISTRICT.

         BY ADV SRI.N.J.ANTONY



RESPONDENT/S:

    1    MATHAI, AGED 45 YEARS
         S/O.CHACKO, PUTHANPURACKAL HOUSE,, VELLITHODU,
         THRIKKAIPATTA., (DRIVER OF BUS (TTL) NO.KL-
         12B/4197.D.L.NO.4393/ 73/W).

    2    A.B.VINODKUMAR AGE NOT KNOWN
         S/O.BALAN,, MANAGING DIRECTOR, THRIKKAIPATTA
         TRAVELS LTD.,, THRIKKAIPATTA., (OWNER OF
         BUS(TTL)NO.KL-12B/4197).

    3    NATIONAL INSURANCE CO. LTD.
         KALPETTA., (POLICY NO.570800/31/02/6308759).

    4    AJEESH M.JOSE AGE NOT KNOWN
         S/O.JOSEPH M.A., MORTIKUTTIYIL HOUSE,,
         THRIKKAIPATTA,, (DRIVER OF BUS NO.KL-
         7AF/7250.D.L.NO.2212/01/W).

    5    UNITED INDIA INSURANCE CO. LTD.
         KALPETTA., (POLICY NO.100203/31/02/62658).

    6    ABDUL KAREEM MUCHETTA HOUSE
 MACA NO. 1702 OF 2009
                             2

         H.M.T.COLONY, KALAMASSERY, ERNAKULAM.

         BY ADVS.
         SMT.S.JAYASREE
         SRI.P.JACOB MATHEW
         SRI.MATHEWS JACOB SR.




     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 13.01.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA NO. 1702 OF 2009
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                          JUDGMENT

The appellant was the petitioner in OP(MV) No.422/2003

on the file of the Motor Accidents Claims Tribunal, Kalpetta.

The respondents 1 to 4 in the appeal were the respondents 1 to

4 before the Tribunal. As the 5th respondent before the Tribunal

was struck off from the party array, the respondents 6 and 7

before the Tribunal are arrayed as the respondents 5 and 6 in

the appeal. Nonetheless, the parties are for the sake of

convenience, referred to as per their original litigate status

before the Tribunal.

2. The petitioner 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

15.08.2003. It was her case that, on the above said date, while

she was traveling in a bus bearing registration No.KL-12B 4197

(offending bus) from Muttil to Kalpetta, due to the rash and

negligent driving of the offending bus by the 1 st respondent, the

bus hit another bus bearing registration No.KL-7AF-7250 driven

by the 4th respondent. The appellant was treated as an inpatient

for a period of seven days. The offending bus was driven by the MACA NO. 1702 OF 2009

1st respondent, owned by the 2nd respondent and insured with

the 3rd respondent. The other bus was driven by the 4 th

respondent, owned by the supplemental 7th respondent and

insured with the 6th respondent. (On finding that the 5 th

respondent was not the owner of the other bus, the petitioner

got the 5th respondent struck off from the party array and

impleaded the supplemental 7th respondent). The petitioner was

a home maker and was earning a notional monthly income of

Rs.3,000/-. Hence, the petitioner claimed a compensation of

Rs.2,30,000/- from the respondents, which claim was limited to

Rs.2,00,000/-.

3. The respondents 1 and 2 did not contest the proceeding.

4. The 3rd respondent had filed a written statement

contending that the accident occurred due to the negligence of

the other bus. However, the 3 rd respondent had admitted that

the offending bus had a valid insurance coverage.

5. The 6th respondent had filed a written statement

contending that the 5th respondent was not the owner of the

other bus. However, after the supplemental 7 th respondent was

impleaded, the 6th respondent admitted that the supplemental

7th respondent was the insured. Nevertheless, the 6 th MACA NO. 1702 OF 2009

respondent contended that the accident happened due to the

negligence of the 1st respondent.

6. The petitioner had produced and marked Exts.A1 to A9

in evidence. The disability certificate issued by the Medical

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 petitioner to recover from the respondents 3 and

6 - the insurers of both the buses - an amount of Rs.10,450/-

with interest at the rate of 6% per annum from the date of

petition till the date of realisation and proportionate cost.

8. Dissatisfied with the quantum of compensation awarded

by the Tribunal, the petitioner is in appeal.

9. Heard Sri. N.J. Antony, the learned counsel appearing for

the appellant/petitioner, Sri. P. Jacob Mathew, the learned

counsel appearing for the 3rd respondent/insurer and Smt.

S.Jayasree, the learned counsel appearing for the 5 th

respondent/6th respondent/insurer.

10. The point that arises for consideration in the appeal is

whether the quantum of compensation awarded by the Tribunal

is reasonable and just ?

MACA NO. 1702 OF 2009

Negligence and Liability

11. The petitioner had contended that the accident

occurred due to the negligence of the drivers of the two buses,

namely the respondents 1 and 4. Indisputably, the 2 nd and

supplemental 7th respondents were the owners and the 3 rd and

6th respondents are insurers of the two buses. The insurers have

not proved that the insured have violated the insurance policy

conditions. Therefore, it is the respondents 3 and 6 - the

insurers of the buses - who are liable to pay the compensation

amount in equal shares.

Income

12. The petitioner had claimed that she was a housewife

and was having a notional monthly income of Rs.3,000/-. For

want of materials, the Tribunal had fixed the monthly income of

the petitioner on notional basis at Rs.2,000.

13. In Ramachandrappa vs. Manager, Royal Sundaram

Alliance Insruance Company Ltd. : (2011) 13 SCC 236, the

Honourable Supreme Court has fixed the notional income of a

coolie worker in the year 2004, at Rs.4,500/- per month.

14. Following the yardstick in the afore-cited decision and MACA NO. 1702 OF 2009

considering the fact that the petitioner was a house wife, who

had claimed to be getting a notional monthly income of

Rs.3,000/-, and the fact that the accident occurred in the year

2003, I fix the notional monthly income of the petitioner at

Rs.4,000/-.

Loss of earnings

15. The Tribunal found that the petitioner was indisposed

for a period of one month. However on a perusal of Ext.C1

disability certificate, it is found that the petitioner had suffered

a fracture of the nasal bone and fracture of coccyx (tailbone).

In the above circumstances, I hold that petitioner was

indisposed for a period of three months.

16. In view of the refixation of the notional monthly income

of the appellant at Rs.4,000/- per month, I award the appellant

an amount of Rs.12,000/- towards 'loss of earnings', instead of

Rs.2,000/- awarded by the Tribunal.

Bystander expenses and extra nourishment

17. The petitioner was treated as inpatient for a period of 7

days. Taking note of the fact that the accident occurred in the

year 2003, I award her an amount of Rs.200/- per day for a

period of 7 days towards 'bystander expenses', which works out MACA NO. 1702 OF 2009

to Rs.1,400/-, instead of Rs.500/- awarded by the Tribunal.

Pain and sufferings and loss of amenities

18. The Tribunal had awarded an amount of Rs.5,000/-

under the above two heads.

19. Taking into consideration the fact that the petitioner

had sustained two fractures, that she was treated as an

inpatient for a period of 7 days, that she was indisposed for

three months and that she had sustained a functional disability

of 2%, I award her an amount of Rs.15,000/- under the head

'pain and sufferings' i.e., an enhancement of Rs.10,000/- and an

additional amount of Rs.5,000/- under the head 'loss of

amenities'.

Disability

20. The petitioner was referred to a duly constituted

Medical Board attached to the District Hospital, Mananthavadi.

A four member Medical Board found that the petitioner has a

permanent disability of 2%. However, the Tribunal declined to

accept the said certificate.

21. In Raj Kumar vs. Ajay Kumar : [2011 (1) KLT 620],

the Honourable Supreme Court has categorically held that in an

injury claim, if the Tribunal is not satisfied with the disability MACA NO. 1702 OF 2009

certificate produced before it, the Tribunal has to refer the

injured/claimant to a duly constituted Medical Board. Also, what

needs to be looked into in such cases, is the functional disability

of the injured/claimant.

22. In the instant case, the Tribunal after referring the

petitioner to a Medical Board, and the Medical Board assessing

the petitioner's permanent disability at 2%, the refusal of the

Tribunal to accept Ext.C1, is erroneous and patently wrong.

Following the principles in Rajkumar (supra), and accepting

Ext.C1 on its face value, I fix the petitioner's functional

disability at 2%.

Multiplier

23. The petitioner was aged 34 years at the time of the

accident. Following the principles laid down in Sarla Varma vs.

Delhi Transport Corporation [2010 (2) KLT 802], the relevant

multiplier to be adopted is '16'.

Loss due to disability

24. Taking into account the above mentioned factors,

namely, the notional monthly income of the petitioner at

Rs.4,000/-, her functional disability at 2% and the multiplier at

16, I award her an amount of Rs.15,360/- as compensation for MACA NO. 1702 OF 2009

'loss due to disability'.

25. With respect to the other heads of compensation, I find

that the Tribunal has awarded reasonable and just

compensation.

26. On an overall re-appreciation of the pleadings and

materials on record and the law referred to in the afore-cited

precedents, I hold that the appellant/petitioner is entitled for

enhancement of compensation as modified and recalculated

above and given in the table below for easy reference.

Sl.     Head of claim                      Amount          Amount
No.                                     awarded by the   awarded by
                                         Tribunal (in     this Court
                                             Rs.)           (in Rs.)
  1.    Loss of earnings                         2,000        12,000





  4.    Bystander expenses                        500            1,400



  6.    Medical expenses                         1,700           1,700

  7.    Pain and sufferings                      5,000        15,000

  8.    Loss of amenities                            0           5,000

  9.    Loss due to disability                       0        15,360
 MACA NO. 1702 OF 2009



                 Total                    10,450          51,710

27. In the result, the appeal is allowed by enhancing the

compensation by a further amount of Rs.41,260/-/- with interest

@ 6% per annum from the date of petition till the date of

deposit, after deducting interest for a period of 142 days i.e.,

period of delay and as ordered by this Court on 27.09.2021 in

CM Appl.No.1/2009, and a cost of Rs.5,000/-. The respondents 3

and 5 in the appeal/respondents 3 and 6 before the Tribunal

(insurers of the two buses) are ordered to pay the enhanced

compensation amount with interest and cost before the Tribunal

within period of 60 days from the date of receipt of a certified

copy of this judgment. Immediately on the compensation

amount being deposited, the Tribunal shall disburse the