Kerala High Court
Radha vs United India Insurance Company on 27 October, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
FRIDAY, THE 27TH DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945
MACA NO. 3616 OF 2022
AGAINST THE AWARD DATED 27.01.2022 IN O.P(M.V) NO.732/2018 OF MOTOR ACCIDENTS
CLAIMS TRIBUNAL, PALAKKAD
APPELLANT/PETITIONER:
RADHA,
AGED 61 YEARS,
W/O KALAN,KARIPPADYI HOUSE,
ELAVANCHERY P O, KARINKULAM,
CHITTUR TALUK, PALAKKAD DISTRICT, PIN - 678508
BY ADV.
BABY MATHEW
RESPONDENT/3RD RESPONDENT:
UNITED INDIA INSURANCE COMPANY LIMITED,
REP BY ITS BRANCH MANAGER, I G TOWERS, NEAR BUS STAND,
NEMMARA P O, CHITTUR TALUK, PALAKKAD, KERALA-678508
INSURER OF MOTORCYCLE BEARING REG NO KL/70/3042) ( POLICY NO
1012043116P112810965, VALID FROM 29/12/2016 TO 28/12/2017,
COMMUNICATION ADDRESS
UNTIED INDIA INSURANCE CO LTD, 3RD FLOOR, MALABAR FORT BUILDING,
OLD KANDATH COMPLEX, G B ROAD, PALAKKAD, KERALA, PIN - 678001
BY ADV.
PREETHY R. NAIR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON
27.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NO. 3616 OF 2022
2
JUDGMENT
Dated this the 27th day of October, 2023.
This appeal is directed against an award passed by Motor
Accidents Claims Tribunal, Palakkad (for short, 'the Tribunal')
on 27.01.2022 in O.P (M.V) No.732/2018.
2. For the sake of convenience, the parties to this
appeal will hereinafter be referred to as the petitioner and
respondents 1 to 3 in accordance with their status in the
Original Petition.
3. As per the averments in the Original Petition filed as
above, the petitioner sustained injuries in a motor accident
occurred at 10.30 a.m on 15.11.2017. She was walking along the
side of Panagattiri - Kollengode public road and a Motorcycle
bearing Registration No.KL-70-3042 hit her down near
Venkiteswara Garden at Payyallur in Kollengode. She sustained
serious injuries and was treated as inpatient from 15.11.2017 till
22.11.2017 at Sai Medical Center Hospital, Kollengode. The
MACA NO. 3616 OF 2022
motor accident was allegedly occurred due to the rash and
negligent riding of the Motorcyle by its rider.
4. The registered owner, the driver and the insurer of
the Motorcycle bearing Registration No.KL-70-3042 were
arrayed as respondents 1 to 3 in the Original Petition and
`3,00,000/- was the compensation claimed in total.
5. All respondents were served with notice. Notice
issued to respondent No.1 was returned with endorsement
'expired' and therefore, his legal representatives were brought
on record as supplemental respondents 4 to 6. They were
served with notice but, they did not turn up to contest the
Original Petition and were declared as ex parte. Respondent
Nos.2 and 3 were served with notice and filed written
statement. Admittedly respondent No.2 was holding a valid
driving licence and a certificate of insurance was issued by the
3rd respondent, for the vehicle driven by him at the relevant
time of the motor accident. Admittedly, a valid policy was also
MACA NO. 3616 OF 2022
issued for the Motorcycle bearing Registration No.KL-70-3042
covering the date of the motor accident.
6. Based on the evidence on record, the Tribunal found
that the motor accident was occurred due to the rash and
negligent riding of the Motorcycle by the 2 nd respondent. Based
on the medical evidence on record, the Tribunal also found that
the petitioner had sustained serious injuries in the motor
accident. Thus, a sum of `1,36,000/- was arrived at as the
compensation payable to the petitioner. Interest at the rate of
7.5% per annum was also ordered for that sum from the date of
filing of the Original Petition till the date of realisation.
Proportionate cost was also allowed.
7. It is submitted by the learned counsel that petitioner
is satisfied of Rs.11,000/- considered by the Tribunal as his
monthly income but, dissatisfied with the period for which loss
of earning was considered by the Tribunal. According to him,
the Tribunal has considered loss of earning only for one month
and when viewed in the backdrop of the serious injuries
MACA NO. 3616 OF 2022
sustained by him, the compensation stood awarded is found
inadequate. According to the learned counsel, the victim of the
motor accident sustained compression fracture of L1 in the
motor accident and rest at least for a period of 5 months is
required for complete cure. The learned counsel contended
furthermore that though a certificate issued by the Doctor who
treated the petitioner was marked in evidence as Ext.A11,
where, her permanent disability was certified as 10%, the
Tribunal had considered only 5% for the purpose of calculation
of compensation. The learned counsel urged for
consideration of a higher percentage as the permanent
disability and calculation of compensation on its basis.
8. The injury sustained by the petitioner being
compression fracture of L1, she may not be able to attend the
avocation engaged by her effectively atleast for a period of four
months and therefore, compensation is calculated for that
period and thus, `44,000/- (`11,000/- x 4) is arrived at.
MACA NO. 3616 OF 2022
`11,000/- stood awarded by the Tribunal when adjusted against
that sum, the petitioner will get `33,000/- (`44,000/- -
`11,000/-) as additional compensation under that head.
9. True that the permanent disability of the petitioner
was assessed by an individual doctor and certified as 10% in
Ext.A11, but the petitioner failed to examine the doctor, who
had issued it. Therefore, in a context, when Ext.A11 was not put
to proof, the Tribunal was constrained to have a consideration
of 5% as her permanent disability. Having due regard to the
serious nature of the fracture sustained and the difficulties
faced by her consequently, this Court finds it reasonable to
consider 6% as the permanent disability of the petitioner.
10. Compensation when calculated afresh on the basis of the
modified percentage of permanent disability for the petitioner,
`55,440/- (`11,000 x 12 x 7 x 6/100) is arrived at. `46,200/-
stood awarded by the Tribunal when adjusted against the sum
now arrived at, the petitioner will get `9,240/- as additional
compensation under that head.
MACA NO. 3616 OF 2022
11. The compensation stood awarded by the Tribunal
towards pain and suffering and loss of amenities and
enjoyments in life also is found inadequate and therefore, this
Court is inclined to enhance those to `40,000/- and `30,000/-
respectively. When compensation already stood awarded by the
Tribunal adjusted against, the petitioner will get `20,000/-
[(`40,000/- + `30,000/-) - (`30,000/- + `20,000/-)] as
additional compensation under the respective heads.
Compensation stood awarded by the Tribunal under other
heads being reasonable, are not interfered with.
12. In the above manner of calculation afresh, the
petitioner will get `62,240/- (Rupees Sixty two thousand two
hundred and forty only) (`33,000/- + `9,240/- + `20,000/-) as
additional compensation. The said amount will carry interest at
the rate of 7.5% per annum from the date of filing of the
Original Petition till the date of realisation excluding 170 days,
being the period of delay occurred in filing the appeal on hand.
MACA NO. 3616 OF 2022
3rd respondent shall pay the additional compensation with
interest accrued on it within a period of two months from the
date on which a certified copy of this judgment is received, in
accordance with the directions issued by this Court in Circular
No.03/2019 dated 06.09.2019.
M.A.C.A stands allowed accordingly.
Sd/-
MARY JOSEPH
JUDGE
JJ
