Kerala High Court
Mumtaz Muhammed vs National India Insurance Co. Ltd on 24 March, 2023
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
CO NO. 86 OF 2015
AGAINST THE AWARD IN OPMV 250/2011 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL, NORTH PARAVUR
CROSS OBJECTOR/RESPONDENT IN MACA 498/2015:
MUMTHAS MUHAMMED, W/O.KOCHUMUHAMMED, MATHIAYATH HOUSE,
C.C.XIII/46 PANAYAPPILLY KARA, MATTANCHERRY VILLAGE,
NOW RESIDING AT MATHIYEDATH HOUSE, MAKKANAI, MANNAM
P.O. PARAVUR VILLAGE, PIN-683 520
BY ADVS.
SRI.REJI GEORGE
SMT.ANUPAMA JOHNY
SRI.N.SANTHOSH
RESPONDENT/APPELLANT IN MACA NO.498/2015:
THE NATIONAL INSURANCE CO. LTD
KOTTAYAM, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL
OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI-35
SRI.GEORGE CHERIAN (SR.)
SMT.K.S.SANTHI
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 24.03.2023, ALONG WITH MACA.498/2015, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
CO NO. 86 OF 2015
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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. 498 OF 2015
AGAINST THE AWARD IN OPMV 250/2011 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL, NORTH PARAVUR
APPELLANT/2ND RESPONDENT:
THE NATIONAL INSURANCE CO. LTD
KOTTAYAM, REPRESENTED BY ITS DEPUTY MANAGER,
REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING,
M.G.ROAD, KOCHI-35
BY ADVS.
SRI.GEORGE CHERIAN (SR.)
SMT.K.S.SANTHI
RESPONDENT/CLAIMANT:
MUMTHAS MUHAMMED, W/O.KOCHUMUHAMMED,
MATHIYADATH HOUSE, C.C.XIII/46 PANAYAPPILLY
KARA, MATTANCHERRY VILLAGE, NOW RESIDING AT
MATHIYEDATH HOUSE, MAKKANAI, MANNAM P.O.
PARAVUR VILLAGE, PIN-683 520
SRI.REJI GEORGE
SMT.ANUPAMA JOHNY
SRI.N.SANTHOSH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR ADMISSION ON 24.03.2023, ALONG WITH CO.86/2015, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CO NO. 86 OF 2015
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JUDGMENT
[CO Nos.86/2015, 498/2015]
This appeal and the Cross Objection emanate from the
Final Award of the Motor Accidents Claims Tribunal, North
Paravur, in OP(MV) No.250/2011.
2. The Cross Objector was involved in a road accident
on 16.01.2011, when she was knocked down by the offending
car while walking on a public road, thus sustaining very
serious injuries. She had to be treated for long periods of
time, including 12 days as an inpatient, and was asked to take
rest for six months. She, thereupon filed the afore Original
Petition seeking compensation for an amount of
Rs.6,95,000/-, limited to Rs.3,00,000/-; but which has been
allowed only to a sum of Rs.2,12,000/-.
3. The Insurance Company, which insured the offending
vehicle, has filed the afore appeal, asserting that the
compensation awarded is excessive; while the Cross Objector
has filed the cross objections, seeking its escalation on the
ground that it is inadequate.
4. Smt.K.S.Santhi - learned standing counsel for the
Insurance Company, argued that the compensation awarded
CO NO. 86 OF 2015
by the Tribunal under the heads 'pain and suffering' and 'loss
of amenities' is egregiously improper and excessive because,
as per Ext.X1 Disability Certificate, the cross objector has
suffered only 2% permanent disability. She argued that the
further amount granted by the Tribunal under the head
'compensation for disfiguration' is also untenable, since there
is no evidence to show that any such had been suffered by the
Cross Objector. She thus prayed that this appeal be allowed.
5. In refutation, Sri.N.Santhosh - learned counsel for
the Cross Objector, argued that the learned Tribunal has
erred in awarding compensation under the head 'permanent
disability', since it did not reckon the income of his client,
who was working as a tailor; and further in not awarding
adequate compensation under the head 'loss of earnings'
because it is on record that she was asked to take rest for six
months after her period of treatment of about one month. He
then added that, when one looks at the injuries sustained by
his client, the compensation awarded under the heads 'pain
and suffering', 'loss of amenities', 'bystanders expenses' and
'extra nourishment' is so exiguous, that it obtains no rational
nexus to her agony or strain. He thus prayed that the Cross
Objection be allowed and the appeal filed by the Insurance
CO NO. 86 OF 2015
Company be dismissed.
6. I have considered the afore rival submissions on the
touchstone of 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.
7. When I examine the impugned Award, it is without
doubt that the learned Tribunal has awarded 'compensation
for permanent disability' to a consolidated sum of
Rs.20,000/-. This was not proper because, the law has been
well settled that such compensation must be computed taking
into account the income of the injured, as also the permanent
disability suffered by him or her. In this case, the Cross
Objector asserts that she was working as a tailor, but there is,
admittedly, no evidence to prove her income. Obviously, the
Tribunal could have only reckoned her notional income, being
guided by Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Company Ltd. [(2011) 13 SCC 236],
which postulates that, in the case of a person who is a
"coolie", or with an unascertainable income, in the year 2011
- when the accident occurred - the minimum income to be
reckoned is Rs.8,000/-. I see no reason why this should be
CO NO. 86 OF 2015
denied to the Cross Objector.
8. As regards the percentile of disability, there is no
dispute between the parties because Ext.X1 - Certificate
issued by the competent Medical Board certifies it to be 2%.
9. Coming to the medical evidence on record,
particularly Ext.A3 - wound certificate, the Cross Objector
had suffered fracture of both her bones of her right leg, along
with injuries and swelling to her nail and other areas.
10. As I have said above, she was hospitalised for nearly
12 days and was asked to take complete rest for about six
months, as is evident from the discharge summaries and the
medical certificates.
11. I am, therefore, without doubt that the Cross
Objector must have suffered great agony and pain, at least
during the time when her bones were not united. Hence,
there can be little contest that she is entitled to be
compensated for 'loss of earnings', as well as to be granted
slightly more amounts under the head 'extra nourishment',
because the Tribunal appears to have taken only Rs.166/- as
income per day for such purpose. I propose to revise it to
Rs.300/- per day.
12. That said, the compensation awarded by the
CO NO. 86 OF 2015
Tribunal under the head 'pain and suffering' and 'loss of
amenities' does not require to be modified, since they are
apposite and the least that could be offered to the Cross
Objector.
13. Finally, as regards the compensation awarded by the
Tribunal under the head 'disfiguration', though there is no
specific evidence to show that the Cross Objector had
suffered any such, her unimpeached testimony is to the
effect that the fracture of both bones has led to the lack of
form of her leg. Since this assertion of hers remains firm, I
do not deem it necessary to disturb the findings of the
Tribunal in this regard.
In the afore circumstances, this appeal is allowed in the
following manner:
(a) The 'compensation for permanent disability' is
revised to Rs.26,808/- from Rs.20,000/- now awarded by the
Tribunal, reckoning the notional income of the Cross Objector
to be Rs.8,000/- per month and her percentile of disability to
be 2%, as correctly found by the learned Tribunal. The
multiplier adopted is '14' which is also right as per Sarla
Verma v. Delhi Transport Corporation [2010 (2) KLT 802
(SC)].
CO NO. 86 OF 2015
(b) An additional amount of Rs.56,000/- is awarded to
the appellant under the head 'loss of earnings', reckoning her
notional income to be Rs.8,000/- per month, for seven months
of treatment and rest.
(c) The compensation under the head 'extra
nourishment' is enhanced to Rs.3,600/-, from Rs.2,000/-
granted by the Tribunal.
(d) In all other respects, the Award of the Tribunal will
stand intact.
Needless to say, 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%
as awarded by the Tribunal, from the date of claim until it is
recovered. He will also be entitled to proportionate costs on
the enhanced amount as ordered by the Tribunal.
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
stu
