Kerala High Court
Parukuttiamma vs Kamalamma on 25 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 25TH DAY OF JANUARY 2022 / 5TH MAGHA, 1943
MACA NO. 2093 OF 2011
AGAINST THE AWARD IN OPMV 713/2004 DATED 24.02.2011 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL ,PUNALUR
APPELLANT/S:
PARUKUTTIAMMA
D/O KUNJUKUTTIAMMA, INDIRA SADANA, VAYYANA, ITTIVA
VILLAGE, KOTTARAKKARA TAULK.
BY ADVS.
SRI. K.SIJU
SMT.BINDU GEORGE
RESPONDENT/S:
1 KAMALAMMA
MANGALYA, KOOTTIKKADA, THATTAMALA, KOLLAM-691 020.
2 AJIKUMAR
S/O SIVARAMAN PILLAI, AJIMANDIRAM, KOTTIKKADA,
KOLLAM- 691 021.
3 THE DIVISIONAL MANAGER
KERALA STATE INSURANCE DEPARTMENT. KOLLAM- 691 001.
BY ADV GOVERNMENT PLEADER
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 25.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NO. 2093 OF 2011
-2-
JUDGMENT
The appellant was the petitioner in O.P.(MV)N0.713/2004 on the
file of the Motor Accident Claims Tribunal, Punalur. The respondents in
the appeal were the respondents before the Tribunal.
2. The appellant had filed a claim petition under Section 166 of the
Motor Vehicles Act, 1988, claiming compensation on account of the
injuries sustained by her in an accident on 24.11.2003. It was her case
that, while she was traveling in a bus bearing registration No.
KL-2N/9912 through Anchal - Kadakkal road, due to the negligent
driving of the bus by the 2 nd respondent, she fell down from the bus. She
sustained serious injuries, including a fracture of her hip. She was treated
at St.Johns hospital and, thereafter, at the Medical College Hospital,
Thiruvananthapuram, for a period of 22 days. She was a housewife. The
bus was owned by the 1st respondent insured with the 3rd respondent.
Hence, the appellant claimed a compensation of Rs.1,25,000/- from the
respondent.
3. The respondents 1 and 2 did not contest the proceeding and were
MACA NO. 2093 OF 2011
set ex-parte.
4. The 3rd respondent had filed a written statement admitting that
the bus had a valid insurance coverage. It was stated that the 2 nd
respondent was careful in driving the bus and it was due to the negligence
of the appellant, who jumped out of the bus, that she sustained injuries.
Hence, the claim petition be dismissed.
5. The appellant had produced and marked Exts.A1 to A8 in
evidence. The respondents did not let in any evidence.
6. The Tribunal, after analyzing the pleadings and the materials on
record, allowed the claim petition in part, by permitting the appellant to
recover from the 3rd respondent an amount of Rs.13,250/- with interest
and cost.
7. Dissatisfied with the quantum of compensation awarded by the
Tribunal, the petitioner is in appeal.
8. Heard; Sri. Siju Kamalasanan, the learned Counsel appearing for
the appellant / petitioner and the learned Government Pleader appearing
for the 3rd respondent insurer.
MACA NO. 2093 OF 2011
9. The point that arises for consideration of the appeal is whether
the quantum of compensation awarded by the Tribunal is reasonable and
just.
Negligence and liability
10. Ext.A6 charge sheet filed by the Kadakkal Police in Crime
No.503/2003 proves that the accident occurred due to the negligence of
the 2nd respondent. Indisputably, the 1 st respondent was the owner and
the 3rd respondent was the insurer of the bus. The respondents have not
let in any evidence to discredit Ext.A6 charge sheet. The 3 rd respondent
has also not proved that the 1st respondent had violated the insurance
policy conditions. Therefore, the 3rd respondent is to indemnify the
liability of the 1st respondent arising out of the accident.
Income
11. The appellant had claimed that she was 70 years of age and was a
housewife. She claimed her notional income at Rs.2,500/-. The Tribunal
did not fix the notional monthly income of the appellant for the reason
that she had not produced any certificate to prove her disability. The
MACA NO. 2093 OF 2011
course adopted by the Tribunal is erroneous and wrong.
12. Taking into account the fact that the appellant was a housewife
and that the accident occurred in the year 2003 and following the
principles laid down by the Hon'ble Supreme Court in Arunkumar
Agarwal v. National Insurance Company Ltd 2010 (4) KLT 230 , I fix the
notional monthly income of the appellant at Rs.2,500/- as claimed in the
claim petition.
Loss of earnings
13. It is evident from Ext.A7 wound certificate and A8 discharge
card that the appellant had sustained a fracture of her right hip. She was
treated as an inpatient at the Medical College Hospital,
Thiruvananthapuram, for a period of 22 days. She underwent a surgery
on 06.12.2003, to unite the fracture. In the above circumstances, I hold
that the appellant was indisposed for a period of six months.
14. In view of the fixation of the notional monthly income of the
appellant at Rs.2,500/-, I award her an amount of Rs.15,000/- towards
'loss of earnings'.
MACA NO. 2093 OF 2011
By-stander expenses and extra nourishment.
15. It is undisputed that the appellant was treated as inpatient for a
period of 22 days. The Tribunal has awarded only an amount of
Rs.1,650/- towards 'by-stander expenses' and Rs.1,100/- towards 'extra
nourishment'. The said amounts are too low.
16. On a consideration of the fact that the appellant was treated as
inpatient for a period of 22 days and the accident occurred in the year
2003, I award her an amount of Rs.300/- per day for a period of 22 days
towards 'by-stander expenses', which comes to Rs.6,600/-, and Rs.150/-
per day for a period of 22 days for 'extra nourishment', which works out to
Rs.3,300/-.
Pain and sufferings and loss of amenities
17. The appellant had claimed an amount of Rs.10,000/- towards
'pain and sufferings' and Rs.55,000/- towards 'loss due to disability'. The
Tribunal has awarded only an amount of Rs.6,000/- under the head pain
and sufferings.
18. Taking into account the fact that the appellant had sustained a
MACA NO. 2093 OF 2011
fracture of her hip, that she was treated as inpatient for a period of 22
days and that she was indisposed for a period of six months, I award her a
further amount of Rs.4,000/- under the head 'pain and sufferings' and
Rs.5,000/- towards 'loss of amenities'.
19. With respect to the compensation awarded under the head
'transportation expenses', 'damage to clothing' and 'cost of medicines', I
find that the Tribunal has awarded reasonable and just compensation.
20. On an overall re-appreciation of the pleadings and the materials
on record, and the law referred to the above said decision, I hold that the
appellant / petitioner is entitled for enhancement of compensation as
modified and recalculated as above and given in the table below for easy
reference.
Sl Head of claim Amount awarded Amounts
No. by the Tribunal modified and
(in Rupees) recalculated by
this Court
1 Loss of earnings Nil 15,000/-
2 Transportation expenses 2,500/- 2,500/-
3 Damage to Clothing 1,000/- 1,000/-
4 Medical expenses 1,000/- 1,000/-
5 By-stander expenses 1,650/- 6,600/-
MACA NO. 2093 OF 2011
6 Extra nourishment 1,100/- 3,300/-
7 Pain and sufferings 6,000/- 10,000/-
8 Loss of amenities Nil 5,000/-
Total 13,250/- 44,400/-
In the result, the appeal is allowed in part, by enhancing the
compensation by a further amount of Rs.31,150/- (Rupees Thirty One
Thousand One Hundred and Fifty only) with interest on the enhanced
compensation at the rate of 7% per annum from the date of petition till
the date of deposit, after deducting interest for a period of 104 days, i.e.,
the period of delay in filing the appeal and as ordered by this Court in
C.M.Appln.No.3094/2011 dated 23.12.2011, and a cost of Rs.5,000/-. The
third respondent is ordered to deposit the enhanced compensation with
interest and cost before the Tribunal within a period of sixty days from
the date of receipt of a certified copy of this judgment. Immediately on the
compensation amount being deposited, the same shall be disbursed to the
appellant in accordance with law.
Sd/-
C.S.DIAS
JUDGE
uu/27.01.2022
