Thankamma vs M/S.Royal Sundaram Aliance ...
2022 Latest Caselaw 9129 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
          THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
     WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
                       MACA NO. 317 OF 2015
 AGAINST THE AWARD DATED 23.07.2014 IN OP(MV)No.18/2009 OF MOTOR
              ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR
APPELLANT/PETITIONER IN OP(MV)NO.18/2009:

          THANKAMMA, D/O.CHATHAN,
          MANDALA HARIJAN COLONY, KARUMALOOR, ALUVA.

          BY ADV SMT.ANUPAMA JOHNY



RESPONDENT/RESPONDENT NO.2 IN OP(MV) NO.18/2009:

          M/S.ROYAL SUNDARAM ALIANCE INSURANCE CO.LTD.
          2ND FLOOR, AMRUTHA TOWERS, K.P.C.C. JUNCTION,
          OPP: MAHARAJAS GROUND, M.G.ROAD, COCHIN P.O., 682018.

          BY ADVS.
          SRI.P.JACOB MATHEW
          SRI.MATHEWS JACOB SR.(SC)




     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 27.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 317 OF 2015            ..2..




                        JUDGMENT

This appeal is preferred by the claimant in O.P.

(MV)No.18/2009 on the files of the Motor Accidents Claims

Tribunal, Perumbavoor. The parties are referred to as per

status in the claim petition.

2. The petitioner, while walking through the road, was

hit by a car bearing Registration No. KL-41/B-1191 owned

and driven by the 1st respondent and sustained injuries.

The 2nd respondent is the insurer of the car. The petitioner

claimed an amount of Rs.5,00,000/- as total compensation

for the injuries sustained in the accident. The 1 st

respondent was set ex parte. The 2nd respondent filed a

written statement admitting that the vehicle was covered

by a valid policy of insurance. It was contended that the

accident occurred due to the negligence of the petitioner

and that the amount claimed as compensation is excessive.

MACA NO. 317 OF 2015 ..3..

3. Before the Tribunal, the petitioner was examined

as PW1. Exts.A1 to A19 documents and Ext.X1 disability

certificate were marked on the side of petitioner. On the

side of the 2nd respondent, Ext.B1 was marked. The

Tribunal found that the accident happened due to the

negligence of the driver of the car and awarded an amount

of Rs.2,99,829/- as total compensation with 8% interest

and proportionate costs. The 2nd respondent insurance

company was directed to satisfy the award. Aggrieved by

the quantum of compensation awarded, the petitioner has

preferred this appeal. It is contended by the petitioner that

the petitioner was hospitalised and treated as inpatient for

79 days in five spells. The petitioner has sustained the

following injuries:

(1) Pain and lacerated wound right leg above ankle. (2) Fracture to both bones right leg lower 1/3rd.

4. Ext.A19 is the disability certificate, wherein the

orthopeadic disability of the petitioner was certified as MACA NO. 317 OF 2015 ..4..

40%. In Ext.X1, the whole body disability of the petitioner

was assessed by the Medical Board as 15%. The learned

Counsel for the petitioner contends that the amount of

compensation awarded under various heads are totally

inadequate.

5. According to the petitioner, she was a coolie and

was earning an amount of Rs.4,000/- per month. The

Tribunal has taken the notional income of the petitioner as

Rs.3,500/-. Going by the dictum laid down in

Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Company Limited [2011 (13) SCC

236 : AIR 2011 SC 2951], the notional income of the

petitioner is re-fixed as Rs.4,000/-, as claimed by the

petitioner in the claim petition. The petitioner was aged 53

years at the time of the accident and the multiplier to be

adopted is '11'.

6. The Tribunal has found that the petitioner was

incapable of working for 8 months. Since I have taken the MACA NO. 317 OF 2015 ..5..

notional income of the petitioner as Rs.4,000/-, the

compensation for loss of earnings is re-fixed as Rs.32,000/-

[Rs.4,000x8]. Since the petitioner has already been

awarded an amount of Rs.28,000/-, the petitioner is

entitled for an enhanced amount of Rs.4,000/- [32,000-

28,000] under the said head.

7. Towards compensation for extra nourishment,

though the petitioner claimed an amount of Rs.35,000/-,

the Tribunal has awarded only Rs.6,000/-. Taking note of

the injuries sustained, the period of treatment and the age

of the petitioner, I re-fix the compensation under the above

head as Rs.10,000/-. The petitioner is therefore, entitled

for an enhanced amount of Rs.4,000/- (Rs.10,000-6,000).

8. Towards attendant charges, the petitioner claimed

an amount of Rs.25,000/-. The Tribunal has awarded only

Rs.9,000/-. The Tribunal has taken the period of

hospitalisation as 60 days. Since from the records it is

seen that the petitioner was treated as inpatient for 79 MACA NO. 317 OF 2015 ..6..

days, the attendant charges is re-fixed as Rs.11,850/- (150

x 79 days). Since the petitioner was awarded an amount

of Rs.9,000/-, she is entitled for an enhanced amount of

Rs.2,850/- (Rs.11,850-9,000) under the said head.

9. Under the head compensation for pain and

suffering, the Tribunal has awarded an amount of

Rs.55,000/-. Taking note of the injuries sustained by the

petitioner, I re-fix the compensation as Rs.75,000/-. Since

the petitioner has already been awarded an amount of

Rs.55,000/-, the petitioner is entitled for an enhanced

amount of Rs.20,000/- (Rs.75,000-55,000) under the said

head.

10. Towards compensation for loss of amenities,

though the petitioner claimed an amount of Rs.1,00,000/-,

the Tribunal has awarded only Rs.40,000/-. Taking note of

the nature of the injuries sustained by the petitioner, the

disability assessed by the Medical Board and the age of

the petitioner, I find that the petitioner is entitled for an MACA NO. 317 OF 2015 ..7..

amount of Rs.60,000/- under the above head. The

petitioner is entitled for an enhanced amount of

Rs.20,000/- (Rs.60,000-40,000) under the said head.

11. Since I have re-fixed the notional income of the

petitioner as Rs.4,000/-, the compensation for permanent

disability is re-worked as Rs.79,200/- (4,000x12x11x

15/100). Since the petitioner has already been awarded an

amount of Rs.69,300/-, the petitioner is entitled for an

enhanced amount of Rs.9,900/- (79,200-69,300) under the

said head.

12. I find that the compensation awarded under other

heads are just and reasonable. Accordingly, the petitioner

is entitled for an enhanced amount of Rs.60,750/-

(Rupees sixty thousand seven hundred and fifty only)

(4,000+ 4,000+ 2,850+ 20,000+ 20,000+ 9,900). The 2nd

respondent insurance company shall deposit the amount

with 8% interest with proportionate costs from the date of

petition till realisation, within a period of two months from MACA NO. 317 OF 2015 ..8..

the date of receipt of a copy of this judgment.

The appeal is allowed to the said extent.

Sd/-

MURALI PURUSHOTHAMAN, JUDGE

SB/27/07/2022