Surayya vs Abdul Majeed
2023 Latest Caselaw 3339 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
 FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
                    MACA NO. 2068 OF 2015
AGAINST THE    AWARD IN OPMV 1111/2010 DATED 23.04.2010 OF
           MOTOR ACCIDENT CLAIMS TRIBUNAL VATAKARA
APPELLANT/PETITIONER:

           SURAYYA
           AGED 42 YEARS
           W/O.MUHAMMED NIYAS, RESIDING AT PARAMBATH
           HOUSE, TRIKKOTTUR AMSOM DESOM, THIKKODI P.O.,
           KOYILANDY TALUK, KOZHIKODE DT. PIN: 673 105.
           BY ADVS.
           SRI.U.P.BALAKRISHNAN
           SRI.K.R.AVINASH KUNNATH


RESPONDENTS/RESPODNENTS:

    1      ABDUL MAJEED
           S/O.KUNHALLY MASTER, ANANTHAROOR P.O.,
           THIRNNAVAYA, P.O.THIROOR, MALAPPURAM DISTRICT,
           PIN: 676 301.
    2      MUHAMMED AKBAR SO.ABDUL MAJEED
           AYYAPPALLIK, KALLUVALAPPU, NARIPPARAMBU P.O.,
           MALAPPURAM DISTRICT, PIN: 673 573.
           BY ADVS.
           SMT.ANJALI G.KRISHNAN
           SRI.C.M.MOHAMMED IQUABAL



        THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR ADMISSION ON 24.03.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 M.A.C.A No.2068 of 2015

                               2




                          JUDGMENT

The appellant was injured in a road accident on

07.09.2010 - when the offending vehicle hit her, while walking

on a public road near the International Airport, Karipur. She

was immediately taken to a hospital, being treated there as

an inpatient for several days; and thereupon, she filed

OP(MV) No.1111/2010 before the Motor Accidents Claims

Tribunal, Vatakara ('Tribunal' for short), seeking compensation

of an amount of Rs.5,00,000/-, but which has been allowed

only to an extent of Rs.3,18,656/-. She thus impugns the

compensation as being inadequate.

2. Sri.U.P.Balakrishnan - learned counsel appearing

for the appellant, vehemently argued that the primary reason

why the Tribunal has fixed the compensation so low in favour

of his client is because, it has taken her notional income to be

a mere Rs.3,500/-, even when there is clear evidence to show

that she was earning Rs.25,000/- per month, working in a

country outside India. He then pointed out that, the

compensation awarded by the Tribunal under the head M.A.C.A No.2068 of 2015

'Bystander Expenses' has been incorrectly computed, at the

rate of Rs.200/- per day, only for four days, when the actual

hospitalisation was for a period of 24 days. He then asserted

that the compensation under the head 'Extra Nourishment'

has been confined to Rs.1,500/-; while that under the head

'Pain and Suffering' and 'Loss of Amenities' to a mere

Rs.25,000/- and Rs.10,000/- respectively; and thus prayed

that this appeal be allowed.

3. Sri.C.M.Mohammed Iqbal - learned counsel

appearing for the respondents, in refutation, submitted that

the computations adopted by the Tribunal in arriving at the

compensation are without error particularly, because the

accident happened in the year 2010, when the fiscal

standards of today could not have been applied. He thus

prayed that this appeal be dismissed.

4. I have considered the afore rival submissions and

have also gone through the evidence on record - copies of

which have been handed over across the Bar by the learned

counsel for the parties, with the express consent that it can

be acted upon by this Court without dispute. M.A.C.A No.2068 of 2015

5. On the question of notional income of the

appellant, I find force in the submissions because, even

though the appellant had claimed Rs.25,000/- per month,

asserting that she was working abroad, there is no evidence

to prove it. Obviously, therefore, the Tribunal was bound to

her notional income, being guided by the postulations of the

Honourable Supreme Court in Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance Company

Ltd. [(2011) 13 SCC 236]. As per this judgment, even in

the case of a person without any unascertainable income, or

who is working as a 'Coolie', in the year 2010 - when the

accident occurred - the minimum figure to be adopted is

Rs.7,500/- per month. I see no reason why this has not been

taken in the case of the appellant.

6. That said, the medical evidence on record

particularly, Ext.A3 - Wound Certificate, establish that the

appellant has suffered "ligament injury and comminuted

fracture to her right clavicle" (sic). It is also without dispute

that she was hospitalised for a period of twenty four days

and had to continue her followup treatment thereafter.

Obviously, she must have gone through a great amount of M.A.C.A No.2068 of 2015

pain and agony; and am, therefore, of the firm view that the

compensation awarded under the heads 'Pain and Suffering'

and 'Loss of Amenities' requires to be marginally increased;

and that under the head 'Bystander Expenses' needs to be

enhanced at the rate of Rs.200/- per day for 24 days of

hospitalisation.

7. That being said, there is no dispute between the

parties as to the percentile of 'Permanent Disability' found by

the Medical Board in favour of the appellant, as being 5%,

which is also certified in Ext.C1 - Disability Certificate.

In the afore circumstances, this appeal is partly allowed

in the following manner:

a) The compensation under the head 'Loss of Future

Earning Power' is enhanced to Rs.67,500/-, reckoning the

notional income of the appellant to be Rs.7,500/- per month,

adopting the multiplier as '15' as per Sarla Verma v. Delhi

Transport Corporation [2010 (2) KLT 802] and accepting

his percentile of disability as 5%, as correctly found by the

learned Tribunal based on Ext.C1 - Disability Certificate.

b) Axiomatically, the compensation under the head

'Loss of Earnings', will stand enhanced to Rs.45,000/-, again, M.A.C.A No.2068 of 2015

reckoning the notional income of the appellant to be

Rs.7,500/-, for six months as correctly found by the learned

Tribunal.

c) The compensation under the head 'Pain and

Suffering' is enhanced to Rs.30,000/-, from Rs.25,000/- as

awarded by the Tribunal.

d) The compensation under the head 'Loss of

Amenities' is enhanced to Rs.15,000/-, from Rs.10,000/- as

awarded by the Tribunal.

e) The compensation under the head 'Bystander

Expenses' is enhanced to Rs.4,800/-, from Rs.800/- as

awarded by the Tribunal, reckoning the per diem expenses for

such purpose to be Rs.200/-, for twenty four days of inpatient

treatment.

In all other heads, the compensation awarded by the

Tribunal remains unaltered.

Consequently, the appellant will be at full liberty to

recover the compensation, as enhanced by this Court, from

the Insurance Company, along with interest at the rate of 8%

(reducing the rate of interest of 9%, as awarded by the

Tribunal in view of the escalation granted by this Court) from M.A.C.A No.2068 of 2015

the date of claim, until it is recovered. She will also be

entitled to proportionate costs on the enhanced amount as

ordered by the Tribunal before it.

In view of the afore, the amount as fixed above shall be

deposited by the Insurance Company before the learned

Tribunal, within a period of two months from the date of

receipt of a copy of this judgment.

Sd/- DEVAN RAMACHANDRAN, JUDGE lsn