Kerala High Court
Sajnas vs Magma General Insurance Company ... on 29 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 29TH DAY OF MARCH 2023 / 8TH CHAITHRA, 1945
MACA NO. 4052 OF 2019
AGAINST THE AWARD IN OPMV 1565/2017 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL, KOZHIKODE
APPELLANT/PETITIONER:
SAJNAS, AGED 36 YEARS, W/O.MUMTHAZ ALI,
RESIDING AT SHERINS MANSION, KALATHINGAL P.O. FEROKE,
CHUNGAM, KOZHIKODE 673 631.
BY ADV AVM.SALAHUDIN
RESPONDENT/3RD RESPONDENT:
MAGMA GENERAL INSURANCE COMPANY LIMITED
2ND FLOOR, ANJU CHAMBER, 24 PARK STREET,
KOLKATTA, WEST BENGAL 700 016.
BY ADV RAJAN P.KALIYATH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 29.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA NO. 4052 OF 2019
2
JUDGMENT
On 15.05.2016, while the appellant was travelling in a
car, the offending pickup lorry rammed into it, causing her
grave injuries. She was subjected to long treatment,
including as an inpatient for 20 days, and she, thereupon,
filed OP(MV) No.1565/2017 before the Motor Accidents
Claims Tribunal, Kozhikode, seeking compensation of
Rs.13,65,000/-; but which has been allowed only to a sum of
Rs.4,45,000/-. She impugns the Award as being inadequate.
2. Smt.A.D.Divya - learned counsel for the appellant,
argued that the primary reason why the compensation has
been fixed low by the Tribunal is because, it has adopted the
notional income of her client to be Rs.8,000/-, even while she
deposed as PW1, that she was a tailor earning Rs.20,000/-
per month. She argued that, in spite of this deposition being
uncontroverted, the learned Tribunal has not awarded any
amount under the head 'loss of earnings'; while it has
awarded very small amounts under the heads 'pain and
sufferings' and 'loss of amenities'. She thus prayed that this
appeal be allowed enhancing the compensation substantially.
3. Sri.Rajan P.Kaliyath - learned standing counsel for
MACA NO. 4052 OF 2019
the Insurance Company, on the other hand, submitted that
even though the appellant has claimed that she was a tailor,
there was absolutely no proof to either establish it, or that
she was earning Rs.20,000/- per month. He thus prayed that
this appeal be dismissed.
4. 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.
5. On the question of notional income adopted by the
Tribunal, I must say that I find favour with the appellant
because, even in a case where there is no proof to establish
the actual income, Ramachandrappa v. Manager, Royal
Sundaram Alliance Insurance Company Ltd. [(2011) 13
SCC 236] mandates that a person who is working as a
"coolie", or with an unascertainable income in the year 2016
- when the accident occurred - is entitled to have his/her
notional income to be reckoned at Rs.10,500/-.
6. As I have already said above, there is no
independent evidence to show that the appellant was
MACA NO. 4052 OF 2019
working as a tailor, though she deposed so; and therefore, I
do not propose to press to service the ratio in Rajani v.
Oriental Insurance Co. Ltd. [2022 (5) KLT Online 1012
(SC)], which would have permitted slightly higher figure, in
the case of a person engaged in a technical avocation.
7. However, that being said, since the appellant has
asserted that she was working as a tailor, she is certainly
entitled to at least two months being reckoned for loss of
earnings. This is because, even in the case of a housewife,
this Court has held that the person is entitled to loss of
earnings.
8. The medical evidence on record, particularly Ext.A3 -
Wound Certificate, establishes that the appellant suffered
from fracture of right acetabulum and dislocation of right
hip joint, consequent to the accident.
9. As indited above, the appellant was treated for a
long period of time, including as an inpatient for 20 days;
and I have no doubt that she must have gone through great
agony and pain, at least during the time when the treatment
lasted. The fact that she was a lady, having to take care of
her family, certainly enjoins me to grant slightly higher
MACA NO. 4052 OF 2019
amounts under the head 'pain and sufferings', though I do
not propose to increase the amount awarded under the head
'loss of amenities' by the Tribunal.
10. As far as the 'bystanders expenses' and 'extra
nourishment' are concerned, the learned Tribunal has taken
Rs.600/- as the per day expenses in the first head, but only
an amount of Rs.250/- per day under the second. I propose
to revise that to be Rs.300/-, taking note of the fiscal
standards of the year 2016.
11. Finally, as regards the percentage of disability
found in favour of the appellant, the Tribunal has taken it to
be 15%, though Ext.A16 - Disability Certificate certifies it
only to be 12%. The learned Tribunal has explained this,
saying that the functional disability suffered by the appellant
is more than 12%. I see no reason to disturb this,
particularly when the Insurance Company has not
challenged it.
In the afore circumstances, this appeal is allowed with
the following manner:
(a) The compensation under the head 'loss of earning
MACA NO. 4052 OF 2019
capacity' is enhanced to Rs.2,83,500/- from Rs.2,16,000/-
awarded now, reckoning the notional income of the appellant
to be Rs.10,500/- per month and the 'percentage of
disability' maintained as '15', as correctly found by the
Tribunal.
(b) An additional amount of Rs.21,000/- is awarded as
compensation for 'Loss of Earnings', reckoning two months
period for such purpose.
(c) The compensation under the head 'Pain and
Suffering' is enhanced to Rs.50,000/-, from Rs.30,000
awarded by the Tribunal.
(d) The compensation under the head 'Extra
Nourishment' is enhanced to Rs.6,000/-, from Rs.5,000
awarded by the Tribunal, reckoning the per diem expenses
of the same to be Rs.300/-, for 20 days of hospitalisation.
(e) 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%
MACA NO. 4052 OF 2019
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
