Kerala High Court

Swapna vs M.N.Suresh on 16 March, 2022

MACA NO. 2781 OF 2009
                                  1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR.JUSTICE C.S.DIAS
  WEDNESDAY, THE 16TH DAY OF MARCH 2022 / 25TH PHALGUNA, 1943
                       MACA NO. 2781 OF 2009
AGAINST THE ORDER/JUDGMENT IN OPMV 1722/2004 OF MOTOR ACCIDENT
                    CLAIMS TRIBUNAL MUVATTUPUZHA
APPELLANT/S:

            SWAPNA, D/O.MANI, AGED 28 YEARS, THOTTUNGAL HOUSE,
            PUTHENCRUZ P.O, ERNAKULAM.

            BY ADVS.
            SRI.M.K.DILEEPAN
            SMT.P.SUMITHRA


RESPONDENT/S:

    1       M.N.SURESH, S/O.NEELAKANDAN PILLAI, PRANAVAM
            VALANIKKATTU, MUNDAKKAL SOUTH MARADY,, MUVATTUPUZHA.

    2       THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD,
            CONNAUGHT PLACE, NEW DELHI, (3RD PARTY CELL,
            REGIONAL OFFICER, COCHIN).

    3       SYAM S/O.KUNJAPPAN THACHAKKOTHIL
            PARIYARAM, MEEMPARA P.O., PUTHENCRUZ,, ERNAKULAM.

    4       P.T.HARIDAS S/O.THANKAPPAN
            PARAPPURATH, PANCODE P.O.,, PUTHENCRUZ, ERNAKULAM.

    5       THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD.,
            KOLENCHERY, ERNAKULAM.

            BY ADVS.
            LATHA SUSAN CHERIAN
            SRI.GEORGE CHERIAN THIRUVALLA


     THIS   MOTOR ACCIDENT     CLAIMS APPEAL   HAVING COME   UP FOR
ADMISSION ON 16.03.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA NO. 2781 OF 2009
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                          JUDGMENT

The appellant was the petitioner in OP(MV)

No.1722/2004 on the file of the Motor Accidents Claims

Tribunal, Muvattupuzha. 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 sustained to her

in an accident on 01.08.2004. It was her case that, on the

above said date, while she was traveling in an autorikshaw

bearing registration No.KL-7AH 2648 through the Kochi-

Madhurai National Highway, a maruti car bearing

registration No.KL-17 A 5311 (car), came from the

opposite direction and hit the autorikshaw. The appellant

sustained multiple injuries and was treated as an inpatient

at the Medical College Hospital, Kolencheri from

01.08.2004 to 25.08.2004. The appellant was a Post

Graduate student in Microbiology. The car was owned and

driven by the 1st respondent and was insured with the 2 nd MACA NO. 2781 OF 2009

respondent. The respondents 3 to 5 were the driver, owner

and insurer of the autorikshaw. Hence, the appellant

claimed a compensation of Rs.5,40,000/- from the

respondents, which claim was limited to Rs.2,50,000/-.

3. The other injured in the same accident had also

filed OP(MV) Nos.1623/2004, 1645/2004, 1676/2004,

1724/2004 and 1740/2004 before the same Tribunal,

against the respondents, seeking compensation.

4. The respondents 1, 3 and 4 did not contest the

proceeding.

5. The respondents 2 and 5 - the insurers of the two

vehicles contested all the claim petitions by filing separate

written statements. They contended that the accident

occurred due to the negligence of the opposite drivers.

The 2nd respondent also disputed the age, income and

occupation of the all the petitioners.

6. The Tribunal consolidated and jointly tried all the

claim petitions.

7. Two witnesses were examined on the side of the MACA NO. 2781 OF 2009

petitioners as PWs 1 and 2 and Exts.A1 to A30 were

marked in evidence. The respondents did not let in any

evidence.

8. The Tribunal, after analysing the pleadings and

materials on record, allowed the captioned claim petition

in part, by permitting the appellant to recover from the 2 nd

respondent an amount of Rs.1,94,650/- with interest.

9. Dissatisfied with the quantum of compensation

awarded by the Tribunal, the petitioner is in appeal.

10. Heard; Sri. T.C. Thomas, the learned counsel

appearing for the appellant/petitioner and Smt. Latha

Susan Cherian, the learned counsel appearing for the

respondents 2 and 5.

11. The point that emerges for consideration in the

appeal is whether the quantum of compensation awarded

by the Tribunal is reasonable and just ?

Negligence and Liability

12. Ext.A4 final report filed by the Puthencruz Police

in Crime No.267/2004 proves that the accident occurred MACA NO. 2781 OF 2009

due to the negligence of the 1st respondent. Indisputably,

the 2nd respondent was the insurer of the car. The

respondents have not let in any evidence to discredit

Ext.A4 final report. The 2nd respondent has also not proved

that the 1st respondent had violated the insurance policy

conditions. Therefore, the 2nd respondent is to indemnify

the liability of the 1st respondent arising out of the

accident.

Income

13. The appellant had claimed that she was a Post

Graduate Micro Biology student in the M.A.College,

Kothamangalam. To prove the said aspect she had

produced Ext.A24 certificate, wherein it has been stated

that the appellant had lost 1½ years due to the accident.

The Tribunal fixed the notional monthly income of the

appellant at Rs.3,000/-.

14. In Mekala vs. M. Malathy and another :

[(2014) 11 SCC 178], the Honourable Supreme Court has

fixed the notional monthly income of a 11 th Standard MACA NO. 2781 OF 2009

student at Rs.10,000/-, for an accident that occurred on

11.04.2005.

15. In the case at hand, undisputedly as per Ext.A24

certificate, it is proved that the appellant was a M.Sc.

Microbiology student during 2002-2004. Admittedly, the

accident occurred on 01.08.2004. Therefore, I do not find

any reason to take a different yardstick than what is laid

down in Mekala (supra). On a consideration of the fact

that Mekala was only a 11th Standard student, but the

appellant was a Post Graduate student in Microbiology, I

fix her notional monthly income at Rs.10,000/-.

Disability

16. The appellant was examined by a three member

Medical Board. The Medical Board as per Ext.A23 found

that the appellant has 5 centimeters shortening of her

right thigh, her right hip movements are restricted and

she has planter flexion of both ankles. In the above

circumstances, the Medical Board has fixed the permanent

disability of the appellant at 20%. The Tribunal accepted MACA NO. 2781 OF 2009

the assessment made by the Medical Board and fixed the

functional disability of the appellant at 20%. I confirm the

said finding.

Multiplier

17. The appellant was aged 24 years at the time of

the accident. In view of the law laid down in Sarla Varma

vs. Delhi Transport Corporation: [2010 (2) KLT 802],

the relevant multiplier to be adopted is "18".

Loss of earning capacity

18. Taking into account the above mentioned factors,

namely, the notional monthly income of the appellant at

Rs.10,000/-, her functional disability at 20% and the

multiplier at '18', I award her an amount of Rs.4,32,000/-

under the head 'loss of earning capacity', instead of

Rs.1,22,400/- awarded by the Tribunal.

19. With respect to the compensation awarded under

the other heads, I find that the Tribunal has awarded

reasonable and just compensation.

20. On a comprehensive re-appreciation of the MACA NO. 2781 OF 2009

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         awarded by
                                          the Tribunal         this Court
                                             (in Rs.)           (in Rs.)




     3    Bystander expenses                          6,000        6,000



     5    Pain and sufferings                     25,000          25,000

     6    Loss of amenities                       15,000          15,000

     7    Treatment expenses                          9,800        9,800

     8    Loss    of      marriage                15,000          15,000
          prospects
     9    Loss due to disability                1,22,400        4,32,000

                     Total                       1,94,650       5,04,250

21. Even though the appellant had only claimed an MACA NO. 2781 OF 2009

amount of Rs.2,50,000/- as compensation, I have awarded

her more compensation amount than what is claimed in

the claim petition, taking into account the fact that she

was a Post Graduate student and fixing her notional

monthly income at Rs.10,000/-, following the principles

laid down in Mekala (supra). The said course is

permissible in view of the law laid down in Nagappa v.

Gurudayal Singh [2003 (1) KLT 115 (SC)] and Rajesh

vs. Rajbir Sing [2013 (3) KLT 89 (SC)].

In the result, the appeal is allowed by enhancing the

compensation by an amount of Rs.3,09,600/- with