Baby Girija vs Jithin K
2023 Latest Caselaw 1922 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
   FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
                    MACA NO. 3707 OF 2020
   AGAINST THE ORDER/JUDGMENT OPMV 513/2019 OF ADDITIONAL
    DISTRICT COURT & SESSIONS COURT - IV, KOZHIKODE / III
                 ADDITIONAL MACT, KOZHIKODE
APPELLANT/PETITIONER:

          BABY GIRIJA
          AGED 56 YEARS, W/O. LATE JANARDHANAN,
          MELECHEMMOTTUKANDY HOUSE, THONDAYAD,
          CHEVARAMBALAM P.O, KOZHIKODE - 673 017
          BY ADV S.K.SAJU

RESPONDENTS/RESPONDENTS:

    1     JITHIN K
          AGED 33 YEARS, S/O. JAGADEESAN,
          45/449, KODATHIL HOUSE, PERINCHIMALA,
          MAKKADA P.O, KAKKODI, KOZHIKODE - 673 010
    2     NATIONAL INSURANCE COMPANY LIMITED,
          4TH FLOOR, PARCO TOWERS, P.M. TAJ ROAD,
          PB NO. 207, KOZHIKODE, PIN - 673 001
          BY ADV SMT.PREETHY R. NAIR



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 03.02.2023, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 M.A.C.A.No.3707 of 2020

                                :2:


                  DEVAN RAMACHANDRAN, J.
              =========================
                   M.A.C.A.No. 3707 of 2020
             ==========================
             Dated this the 3rd day of February, 2023


                              JUDGMENT

This appeal has been filed by the petitioner in OP(MV)

No.513/2019, on the files of the Additional Motor Accidents Claims

Tribunal-III Kozhikode (the 'Tribunal' for short).

2. The petitioner says that she was injured in an accident

caused by the offending vehicle driven by the 1 st respondent; and

that therefore, she preferred the afore original petition, seeking

compensation limiting to Rs.4,00,000/-, which has been allowed

only to the extent of Rs.1,13,650/-.

3. Sri.S.K.Saju - learned counsel for the petitioner,

vehemently argued that the notional income adopted by the

Tribunal in favour of his client is exiguous and contrary to the

judgment of the Hon'ble Supreme Court in Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance Company Ltd.

[(2011) 13 SCC 236]; and that, in any event, when Ext.A5 -

Salary Certificate was produced and marked without objections,

the figure therein, namely Rs.15,000/- per month, ought to have

been adopted.

M.A.C.A.No.3707 of 2020

4. Sri.S.K.Saju then added that the amounts given under

many of the heads, namely, "loss of earning", "compensation for

pain and sufferings", "compensation for loss of amenities and

enjoyment in life" are also insufficient, taking note of the admitted

injury suffered by his client, which is very grievous, as Exts.A2, A7

and A10 would show. He thus prayed that this appeal be allowed

and the compensation, as prayed for be granted.

5. In response, Smt.Preethy R.Nair, learned counsel

appearing for the 2nd respondent - National Insurance Company

Limited, submitted that the amounts granted by the Tribunal are

without error and that the compensation awarded under the

various heads is just and proper, going by the minor injuries

suffered by the claimant. She, however, conceded that her client

has admitted the insurance policy and that there is no pay and

recovery order against the 1st respondent. Pertinently, she

concluded her submissions, impelling a contra-contention that the

amount granted under the head - "compensation for personal

disabilities" is high and unjustified because it was never claimed by

the appellant.

6. I notice from the files that service of summons to the 1 st

respondent has not been completed. However, since the Insurance

Company now admits the policy and that there is no pay and M.A.C.A.No.3707 of 2020

recovery order issued by the Tribunal against the said respondent,

I do not think that this Court will be inhibited from proceeding with

this appeal, even though service to him has not been completed.

7. When I evaluate and consider the afore submissions, the

first thing that comes to my mind is the amount fixed by the

Tribunal as notional income for the claimant. For some reason,

the Tribunal has adopted only Rs.7,500/-, even though, admittedly,

as per Ramachandrappa (supra), the notional income ought to

have been taken as Rs.9,500/-, because the accident happened in

the year 2014. In this regard, however, I am in favour of the view

of the Tribunal that Ext.A5 - Salary Certificate could not have been

relied upon, particularly because it was issued by a private entity,

without the issuer being examined as a witness by the claimant.

Therefore, I propose to revise the notional income of the claimant

as Rs.9,500/- per month, instead of Rs.7,500/- as taken by the

Tribunal.

8. Coming to the heads of "loss of earning", "compensation

for pain and sufferings", and "compensation for loss of amenities

and enjoyment in life", the medical records, namely, Exts.A2, A7

and A10 record that the claimant suffered from "fracture of

clavicle, fracture AC joint; shoulder dislocation; lacerated wounds

over the right eye lid and other bodily injuries" (sic). These injuries M.A.C.A.No.3707 of 2020

are not as trivial as has been tried to be made out by the Insurance

Company; but are sufficiently grave, so as to entail a larger amount

of compensation under the afore heads to the appellant.

9. I notice from the impugned order that the Tribunal has

adopted conjectural assessments under the afore heads,

particularly because the monthly income of the appellant had only

been taken to be Rs.7,500/-. Now that, this Court has revised the

monthly income in terms of Ramachandrappa (supra), certainly

the amounts under the afore heads also require to be suitably

modified, which I propose as being Rs.28,500/-, Rs.30,000/- and

Rs.25,000/- respectively.

10. Coming to the head "compensation for permanent

disability", even though the appellant has not claimed it, the fact

remains that, as per Sarla Verma v. Delhi Transport

Corporation [2010 (2) KLT 802 (SC)], this Court is enjoined to

consider if there is any such disability; and the Tribunal has

justifiably reckoned it, however, fixing the functional disability to

be 5%, even though Ext.A10 - Disability Certificate takes in 12%.

No reasons have been cited by the Tribunal for reducing the

disability to such an extent, even though the disability certificate

aforementioned has not been impeached, controverted or assailed

by the Insurance Company through evidence on their side or by M.A.C.A.No.3707 of 2020

citing witnesses. I am, therefore, of the firm view that the

disability, as found in Ext.A10 certificate, will have to be adopted,

which is 12%.

11. However, taking note of the fact that what is relevant is

functional disability, I deem it appropriate to accept the figure of

10%, and record that this has not been opposed by the Insurance

Company either.

In the result, this appeal is allowed, granting an

additional amount of Rs.1,02,050/- ("loss of earning" - Rs.6,000/-;

"compensation for pain and sufferings" - Rs.10,000/-;

"compensation for loss of amenities and enjoyment in life" -

Rs.10,150/-; "compensation for the permanent disability" -

Rs.75,900/-), along with the amounts already awarded by the

Tribunal to the claimant, to be paid by the 2 nd respondent -

Insurance Company.

Needless to say, all other findings and directions of the

Tribunal in the impugned Award, including the rate of interest, will

remain unaltered.

Sd/-

DEVAN RAMACHANDRAN JUDGE

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