Kerala High Court
Rajasree vs Rajiv(Died) on 12 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
MACA NO. 444 OF 2013
AGAINST THE ORDER/JUDGMENT DATED 03.02.2011 IN OPMV NO.851 OF 2001
OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANT/PETITIONER:
RAJASREE
W/O.LATE.RAJIV,POVATHIL
HOUSE,THAMARAKULANGARA,THRIPUNITHURA.P.O,NOW RESIDING
AT NANDANAM HOUSE,PIDAVOOR KARA,VARAPETTY
VILLAGE,KOTHAMANGALAM TALUK.
BY ADV SRI.C.DILIP
SMT.ALICE THOMAS
RESPONDENTS/RESPONDENTS:
1 RAJIV(DIED)
SREENIVASA
NAMBEESAN,VAISHAK,CHEVAYOOR.P.O,KOZHIKODE(DIED).
2 HARI.S
S/O.SASISEKHARAN KARTHA,VALLAKKATTU
HOUSE,N.F.GATE,THRIPUNITHURA,PIN-682301.
3 THE MANAGER
UNITED INDIA INSURANCE CO.LTD,DIVISIONAL
OFFICE,NO.3,JOSE TRUST BUILDING,KOCHI-35.
BY ADV.
SRI.P.K.MANOJ KUMAR-R3
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA NO. 444 OF 2013 2
J U D G M E N T
This appeal is at the instance of the claimant
in OP(MV) No.851 of 2001 on the file of Motor
Accidents Claims Tribunal, Muvattupuzha
challenging the award on the ground of inadequacy
of compensation.
2. The appellant who was a PG student, while
riding pillion on KL-7F/5495 motorcycle ridden by
the 1st respondent, fell down on the road due to
the rash and negligent riding of the motorcycle by
the 1st respondent. She suffered serious head
injuries which resulted in hearing loss to her
right ear to the extent of 94%. Her whole body
disability was assessed by the medical board as
25.3%. She approached the Tribunal claiming
compensation of Rs.2,50,000/-, but the Tribunal
awarded only Rs.1,46,237/-, and hence this appeal.
3. The 1st respondent was the rider of the
offending motorcycle, the 2nd respondent was its
owner, and the 3rd respondent was its insurer.
4. Respondents 1 and 2 remained exparte before
the Tribunal. The 3rd respondent insurer contested
the case, but admitted the policy.
5. In the appeal notice to respondents 1 and 2
was dispensed with, as the 3rd respondent insurer
entered appearance through counsel, and admitted
the policy.
6. Heard learned counsel for the appellant and
learned counsel for the 3rd respondent insurer.
7. The main ground urged by the appellant is
that, though she was a postgraduate student aged 21
years, learned Tribunal fixed her notional income @
Rs.1,500/- only, without taking into account her
future prospects. She is relying on the decision
Ramachandrappa v. Manager, Royal Sundaram Alliance
Insurance Company Limited [AIR 2011 SC 2951], to
say that in the year 2001, notional income even for
a coolie would have been fixed @ Rs.3,000/- per
month. But on going through the claim petition
filed by the appellant, her claim was only
Rs.2,000/-per month. So this Court is inclined to
accept the monthly income, as claimed by the
appellant ie. Rs.2000 per month. Learned Tribunal
assessed loss of earnings for 3 months only. She
was hospitalized for 13 days in total. She suffered
head injury with hearing loss of right ear to the
extent of 94%. So this Court is inclined to take
loss of earning for 8 months @ Rs.2,000/- which
would be Rs.16,000/-. After deducting Rs.4,500/-
already awarded, she is entitled to get the
balance amount of Rs.11,500/- under the head loss
of earnings.
8. Towards pain and suffering, learned Tribunal
awarded Rs.15,000/- against her claim of
Rs.25,000/-. Considering the nature of injuries and
period of hospitalization, this Court is inclined
to award Rs.5,000/- more, towards pain and
suffering.
9. Towards loss of amenities, the Tribunal
awarded only Rs.10,000/- against her claim of
Rs.25,000/-. The appellant was a 21 year old girl
at the time of accident, and she suffered serious
head injuries which resulted in hearing loss of her
right ear. So this Court is inclined to award
Rs.15,000/- more, towards loss of amenities.
10. The medical board assessed her whole body
disability to the extent of 25.3% as per Ext.A12
disability certificate. Taking her monthly income
as Rs.2,000/-, the compensation for 25.3%
disability can be assessed as Rs.1,09,296/-
[2000x12x18x25.3%]. After deducting Rs.81,972/-
already awarded, she is entitled to get the balance
amount of Rs.27,324/-.
11. Learned counsel for the appellant would
submit that the appellant had to terminate her
pregnancy due to the injuries suffered in the
accident, and she is claiming compensation for her
medical termination of pregnancy. She would rely
on Exts A7 and A8 documents which would show that
as the appellant was taking drugs for post
traumatic psychosis, which may be hazardous for
the foetus, as advised by the Neurologist, she had
undergone termination of pregnancy on 27/10/2001.
It is true that no amount is seen claimed by the
appellant in the original claim petition for
terminating her pregnancy. But since Exts A7 and
A8 medical records will show that she had to
undergo MTP as she was taking drugs for post
traumatic psychosis, this Court is inclined to
award Rs.10,000/- under that head.
12. The compensation awarded under all other
heads seems to be reasonable, and hence it needs no
modification.
13. The compensation awarded under all other
heads seems to be just and proper and it needs no
interference.
14. The enhanced compensation awarded in this
appeal is stated in the table below:-
Amount Amount
Head of claim Difference to be
awarded by awarded in
drawn as enhanced
the Tribunal appeal compensation
16,000/-
Loss of earning 4,500/- 11,500/-
[2,000x8]
Pain and
15,000/- 20,000/- 5,000/-
suffering
Loss of
10,000/- 25,000/- 15,000/-
amenities
1,09,296/-
Permanent
81,972/- [2000x12x18 27,324/-
disability
x25.3%]
For medical
termination of
pregnancy [as - 10,000/- 10,000/-
per Exts.A7 and
A8]
TOTAL 68,824/-
15. So the appellant is entitled to get
enhanced compensation of Rs.68,824/- with 7%
interest per annum.
16. The 3rd respondent/insurer is directed to
deposit the enhanced compensation with 7% interest
per annum, from the date of petition till the date
of deposit (excluding 552 days of delay in filing
the appeal) before the Motor Accidents Claim
Tribunal concerned, within a period of two months
from the date of receipt of a copy of this
judgment. Learned Tribunal shall disburse that
amount to the appellant after deducting the
liabilities, if any, towards Tax, balance court
fee, legal benefit fund etc.
The appeal is allowed to the extent as above,
and no order is made as to costs.
Sd/-
SOPHY THOMAS,
JUDGE
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