Kerala High Court
Thahira.P.K vs United India Insurance Company Ltd on 4 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 4TH DAY OF APRIL 2024 / 15TH CHAITHRA, 1946
MACA NO. 3695 OF 2019
AGAINST THE AWARD DATED 30.10.2018 IN OPMV NO.597 OF 2015
OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY.
APPELLANT/PETITIONER:
THAHIRA P.K.,
AGED 39 YEARS,
D/O. ABOOTTY, TAILOR, RESIDING AT THAHIRA MANZIL,
KOTTAYAMPOYIL P.O., KOTTAYAMPOYIL,
KANNUR DISTRICT, PIN - 670 691.
BY ADV M.V.AMARESAN
RESPONDENT/RESPONDENT NO.3:
UNITED INDIA INSURANCE COMPANY LTD.,
KANNUR, PIN - 670 001.
BY ADV SRI.P.K.MANOJKUMAR,SC,UNITED INDIA
INSURANCE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 04.04.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
M.A.C.A. No.3695 of 2019
2
C.S. SUDHA, J.
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M.A.C.A. No.3695 of 2019
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Dated this the 04th day of April 2024
JUDGMENT
This appeal under Section 173 of the Motor Vehicles Act,
1988 (the Act), has been filed by the claimant in O.P.(MV)
No.597/2015 on the file of the Motor Accidents Claims Tribunal,
Thalassery, (the Tribunal), aggrieved by the amount of
compensation granted by Award dated 30/10/2018. The
respondent herein is the third respondent before the Tribunal. The
parties and the documents will be referred to as described in the
original petition.
2. According to the petitioner, on 21/03/2015 while
travelling as a pillion rider of the motorcycle ridden by her
husband, from Thalassery to Kannur, autorikshaw bearing
registration No. KL-13/U-4674, driven by the second respondent
in a rash or negligent manner dashed against the motorcycle and
in the impact, the petitioner was thrown on to the road whereby
she sustained serious injuries. The first respondent owner, the
second respondent driver and the third respondent insurer of the
offending vehicle are jointly and severally liable to compensate
the petitioner. Hence the petitioner claimed an amount of
₹10,00,000/- as compensation under various heads.
3. The second respondent driver remained ex parte.
4. The first respondent filed written statement admitting
that he was the owner of the offending vehicle, but denied the
allegation that the accident was caused due to the negligence of
the second respondent. The third respondent insurer filed written
statement admitting the insurance coverage of the autorikshaw,
but denied the allegation that the accident was caused due to the
negligence of the second respondent.
5. Before the Tribunal, no oral evidence was adduced by
either side. Exts.A1 to A5 and Ext.X1 were marked on the side of
the petitioner. No documentary evidence was produced by the
respondents.
6. The Tribunal on a consideration of the documentary
evidence and after hearing both sides, found negligence on the
part of the second respondent driver resulting in the accident and
hence awarded an amount of ₹91,500/- with interest @ 8% per
annum from the date of the petition till realisation along with
proportionate costs. Aggrieved, the petitioner has come up in
appeal.
7. The only point that arises for consideration in this
appeal is whether there is any infirmity in the findings of the
Tribunal calling for an interference by this Court.
8. Heard both sides.
9. The learned counsel for the appellant challenges the
Award of the Tribunal under the following heads-
Loss of income
The learned counsel for the petitioner/injured submitted that
the petitioner, a housewife and a tailor, had sustained a fracture on
her right wrist due to which she was unable to attend her daily
chores for a period of atleast 10 months. The Tribunal awarded
loss of income only for a period of three months, which is too
short a period, during which time recovery was not possible.
Hence loss of income ought to have been granted at least for a
period of 10 months.
9.1. As per Ext.A2 wound certificate, the injuries sustained
by the petitioner are tenderness, deformity and colles fracture
-right wrist. Ext.X1 disability certificate issued by the District
Medical Board, Kannur, says - "Physical disability of 1% (one
percentage) as per Mc Bride Scale." Therefore, even going by the
medical evidence adduced by the petitioner, the percentage of
disability sustained by her is only 1% and therefore the loss of
income for three months awarded by the Tribunal appears to be
just and reasonable.
10. Extra Nourishment - It is further submitted that the
extra nourishment of ₹3,000/- granted is too low and an amount of
₹10,000/- ought to have been granted by the Tribunal. Per contra,
it is submitted by the learned counsel for the third
respondent/insurer that the petitioner was hospitalised for a period
of two days only and therefore the amount of ₹3,000/- granted as
extra nourishment is adequate compensation. The amount of
₹3,000/- granted in this background is reasonable and hence calls
for no interference.
11. Bystander's expenses - The learned counsel for the
petitioner/injured submitted that the petitioner being a housewife
and a tailor, the fracture sustained by her on the wrist made it
extremely difficult for her in discharging her duties as a housewife
as well as for carrying out her professional avocation. She
required the assistance of a third person for quite a long time and
hence bystander expenses at the rate of ₹2,000/- per month for a
period of one year ought to have been granted. Per contra it is
submitted by the learned counsel for the third respondent insurer
that it would have at best taken about six to seven weeks for the
injury to heal and since hospitalisation was only for a period of
two days, bystander expense of ₹600/- per day for a period of two
days is adequate compensation.
11.1. Admittedly, the petitioner sustained a fracture on her
right wrist, which apparently is a grievous injury. The injury on
the right wrist would certainly have affected the discharge of the
petitioner's duty as a housewife as well as in carrying out her
tailoring operations. It would have taken at least six to seven
weeks for her to recover. A housewife as everyone is aware
works 365 days a year and cannot afford to take any sick leave or
other leave from her household chores. In such a situation, she
would certainly have required the assistance of a third person to
carry out her normal routine chores both of herself and of the
family, for which she would certainly have required to engage a
third person/help. Bystander assistance for two days has been
granted by the Tribunal on the ground that the petitioner was
hospitalised for a period of only two days. In the light of the
injury sustained by her and as she would have required the help of
a third person at least for about 30 days, bystander expenses at the
rate of ₹200/- for 28 days, can be granted. 28 days has been taken
because two days' expenses has already been granted. Therefore
for a period of 28 days, the assistance should be granted which
would be ₹5,600/- (₹200 x 28).
12. Medical expenses - An amount of ₹10,000/- has been
granted towards medical bills. According to the learned counsel
for the petitioner, the petitioner had to undergo treatment
thereafter also and that she had undergone prolonged ayurveda
treatment and therefore an amount of ₹25,000/- ought to have
been granted by the Tribunal. There is no evidence on record to
show that any future treatment was required or that she had
undergone any future treatment. At this juncture, the learned
counsel for the petitioner submitted that it was impossible to get
bills showing that the petitioner had undergone ayurveda
treatment. If that be so, the petitioner could have atleast mounted
the box and given a sworn statement to the effect that she had
undergone future treatment, in which case her testimony would
have been tested in cross examination. As there is no material on
record to show that the petitioner had undergone further treatment,
the claim cannot be allowed.
13. Pain and suffering - An amount of ₹30,000/- has been
granted towards pain and suffering. This again is challenged by
the learned counsel for the petitioner who contends that at least an
amount of ₹75,000/- ought to have been granted. In the light of
Ext.X1 disability certificate which shows that the petitioner had
sustained only 1% permanent disability and in the light of the
nature of injury sustained by her, I think the amount of ₹30,000/-
granted by the Tribunal is just compensation.
14. Loss of future earnings - An amount of ₹10,080/- has
been granted by the Tribunal relying on the dictum of the Apex
Court in Sarla Verma v. Delhi Transport Corporation, (2009)6
SCC 121 and National Insurance Co. Ltd v. Pranay Sethi,
(2017)16 SCC 680. Therefore I find no infirmity warranting an
interference.
15. The compensation awarded under other heads for the
aforesaid reasons are appropriate and adequate and so I find no
reasons to interfere with the same also.
16. The impugned Award is partly modified thus -
Sl. Head of claim Amount Amount Modified in
No. claimed awarded by appeal
Tribunal
1. Loss of earning ₹5,00,000/- ₹18,000/- ₹18,000/-
(No
(₹6,000x3) modification)
2. Partial loss of - - -
earning (No
modification)
3. Transport to ₹10,000/- ₹3,000/- ₹3,000/-
hospital (No
(₹600x5) modification)
4. Extra ₹10,000/- ₹3,000/- ₹3,000/-
nourishment (No
(₹1,000x3) modification)
5. Damage to ₹50,000/- ₹1,000/- ₹1,000/-
clothing and (No
articles modification)
6. Bystander's ₹1,200/- ₹5,600/-
expenses
₹50,000/- (₹600x2) (₹200 x 28)
7. Medical ₹10,000/- ₹10,000/-
expenses (No
modification)
8. Pain and ₹5,00,000/- ₹30,000/- ₹30,000/-
suffering (No
modification)
9. Compensation ₹5,00,000/- ₹10,080/- ₹10,080/-
for permanent (No
disability modification)
10. Compensation ₹6,00,000/- ₹15,000/- ₹15,000/-
for loss of (No
amenities modification)
Total ₹10,00,000/- ₹91,280/- ₹95,680/-
Claim amount
₹10,00,000/-
In the result, the appeal is allowed in part by enhancing the
compensation by a further amount of ₹4,400/- (total compensation
₹95,680/-, that is, ₹91,280/- granted by the Tribunal + ₹4,400/-
granted in appeal) with interest at the rate of 7.5% per annum
from the date of petition till date of realization and proportionate
costs. The third respondent/insurer is directed to deposit the
enhanced compensation with interest and costs before the
Tribunal within a period of 60 days from the date of receipt of a
copy of the judgment. On deposit of the compensation amount,
the Tribunal shall disburse the amount to the petitioner/appellant
at the earliest in accordance with law.
Interlocutory applications, if any pending, shall stand closed.
SD/-
C.S.SUDHA
JUDGE
ak
