Kerala High Court

Mrs. Sarala vs Mr. Rajeev on 21 May, 2024

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
  TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                     MACA NO. 4388 OF 2019
AGAINST THE ORDER/JUDGMENT DATED IN OPMV NO.1117 OF 2016 OF
         MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA
APPELLANT/PETITIONER:

           MRS. SARALA
           AGED 52 YEARS, W/O. SEKHARAN,
           THOTTAPPILLY HOUSE, VELLILAMKUNNU DESOM,
           MURIYAD VILLAGE AND P.O.
           THRISSUR DISTRICT, PIN-680 683
           BY ADV.
           SRI.V.BINOY RAM


RESPONDENTS/RESPONDENTS:

    1      MR. RAJEEV
           S/O. SREEDHARAN, NAVANEETHAM HOUSE,
           VELLANGALLUR DESOM AND P.O. VADAKKUMKARA
           VILLAGE, THRISSUR DISTRICT, PIN-680662
    2      MR. SANJEEV,
           S/O. SREEDHARAN, NAVANEETHAM HOUSE,
           VELLANGALLUR DESOM AND P.O. VADAKKUMKARA
           VILLAGE, THRISSUR DISTRICT, PIN-680 662
    3      THE MANAGER,
           UNITED INDIA INSURANCE CO. LTD,
           DIVISIONAL OFFICE, PARK HOUSE,
           ROUND NORTH, THRISSUR, PIN-680 001
           BY ADV.
           SMT.P.K.SANTHAMMA

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 21.05.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 M.A.C.A.No.4388 of 2019
                                     :2:



                  SHOBA ANNAMMA EAPEN, J.
               =========================
                    M.A.C.A.No. 4388 of 2019
              ==========================
               Dated this the 21st day of May, 2024


                              JUDGMENT

This appeal filed under Section 173 of the Motor Vehicles

Act, 1988, is filed by the petitioner in OP(MV) No.1117/2016 of

the Motor Accidents Claims Tribunal, Irinjalakuda. The appellant

is aggrieved by the quantum of compensation granted by the

Tribunal in the common award dated 26.07.2019. The

respondents herein are the respondents before the Tribunal.

2. According to the appellant, she was a pillion rider on

a motorcycle. The offending vehicle bearing registration number

KL-08-F-3806 Enfield Bullet motorcycle ridden by the 2 nd

respondent hit against the motorcycle in which the appellant was

travelling and she sustained injuries in the accident. The 1 st

respondent is the insured /owner and the 3 rd respondent is the

insurer of the offending vehicle. The appellant claimed an

amount of Rs.2,00,000/- (Rupees Two lakhs only) as

compensation under various heads.

3. Respondent Nos.1 and 2 filed a joint written

statement denying the allegations raised in the petition.

Respondent No.3 also filed a written statement admitting the

insurance policy but contended that the amounts claimed by the

claimants under various heads were excessive and further

contended contributory negligence on the part of the claimant.

No oral evidence was adduced before the Tribunal. Exts.A1 to

A21 were marked from the side of the appellant, and Ext.B1 is

marked from the side of the 3rd respondent.

4. The Tribunal, on consideration of the entire issue,

found that no contributory negligence can be attributed and

since the vehicle had a valid insurance policy, directed the

insurance company to pay an amount of Rs.1,83,280/- (Rupees

one lakh eighty three thousand two hundred and eighty only),

with interest at the rate of 8% from 05.10.2016 till realisation.

Aggrieved by the same, the appellant has approached this Court

with the above appeal.

5. Heard the learned counsel for the appellant as well as

the learned Standing Counsel for the insurance company.

6. The learned counsel for the appellant claimed

enhancement on the following heads:

7. Notional Income/Loss of earnings:

The learned counsel for the appellant submits that the

appellant was a coolie worker and her income ought to have

been fixed at the rate on the basis of the decision in

Ramachandrappa v. Manager, Royal Sundaram Alliance

Insurance Company Ltd. [(2011) 13 SCC 236]. The notional

income ought to have been taken as Rs.10,500/-per month on the

basis of the dictum laid down in Ramachandrappa (supra)

whereas the Tribunal had taken only Rs.8,000/- as the notional

income. The learned Standing Counsel also submits that, on the

basis of the judgment rendered in Ramachandrappa (supra),

the notional income can be taken as Rs.10,500/-. Accordingly, the

monthly income fixed by the Tribunal at Rs. 8,000/- is enhanced

to Rs.10,500/-. While reassessing the compensation under the

head, 'loss of earnings' the amount of Rs.32,000/- granted by the

Tribunal is enhanced to Rs.42,000/- and hence an additional

amount under the said head will come to Rs.10,000/-.

8. Compensation for disability:

The learned counsel for the appellant submits that Ext.A8

disability certificate issued by Dr. Jose Kurian Katturkaran,

Orthopaedic surgeon, Palace Hospital, Chalakudy, shows that the

whole-body disability is 11.86%. However, the Tribunal has

considered only 7% of disability for fixing disability

compensation. However, I do not find any reason to interfere

with the assessment of disability of 7% by the Tribunal. It is

found to be reasonable. However, there will be an enhancement

of the amount calculated under the head 'disability

compensation' since there is an enhancement of notional income.

The amount granted by the Tribunal under the above head was

Rs.87,360/-. Hence, the total disability compensation will be

Rs.1,14,660/- (Rs.10,500x7/100x12x13 = Rs.1,14,660/-). Out of

the said amount, Rs.87,360/- already awarded by the Tribunal

has to be deducted. Accordingly, the additional amount under the

head disability compensation will come to Rs.27,300/-.

9. Compensation for Pain and Suffering and loss of

amenities:

The learned counsel for the appellant submits that, under

the head pain and suffering, though an amount of Rs.1,00,000/-

was claimed, the Tribunal has awarded only Rs.30,000/-. The

learned Standing Counsel for the insurance company submits

that since the injury is only the non union of ulnar styloid and

malunion of fracture radius and the disability assessed by the

Tribunal is only 7%, the amount of compensation granted by the

Tribunal is reasonable. In the light of the injuries sustained by

the appellant, the amount of Rs.30,000/- awarded by the

Tribunal for pain and suffering is found to be reasonable.

Similarly, for loss of amenities, the Tribunal has awarded an

amount of Rs.15,000/- which is found to be reasonable, and I am

not inclined to grant any enhancement of compensation under

those heads.

The impugned Award is modified thus:

Sl. Head of Claim Amount Amount Amount Total No. Claimed awarded by enhanced compensation (Rs.) the in Appeal (Rs.) Tribunal (Rs.) (Rs.)

1 Loss of 60,000 32,000 10,000 42,000 earnings (10,500x4 months)

2 Transportation 10,000 1,000 No 1,000 expenses modification

3 Extra 10,000 2,000 No 2,000 nourishment modification

4 Damage to 10,000 1,000 No 1,000 clothing modification

5 Bystander's 20,000 1,200 No 1,200 expenses modification

6 Medical 60,000 13,720 No 13,720 expenses modification

7 Pain and 1,00,000 30,000 No 30,000 suffering modification

8 Permanent 2,00,000 87,360 27,300 1,14,660 disability and loss of earning (Rs.8,000x7/ (Rs.10,500x7/ power 100x12x13) 100x12x13)

9 Loss of 50,000 15,000 No 15,000 amenities modification

Total 5,20,000/- 1,83,280/- 37,300/- 2,20,580/-

     (Rs.)                is limited to
                            2,00,000/-

In the result, the appeal is allowed. The Award dated

26.07.2019 passed by the Motor Accidents Claims Tribunal,

Irinjalakuda in O.P.(MV) 1117/2016 is hereby modified by awarding

an additional amount of Rs.37,300/- (The total compensation is

Rs.2,20,580/- that is Rs.1,83,280/- granted by the Tribunal +

Rs.37,300/- granted in appeal) with interest at the rate of 8% per

annum from 05.10.2016 till realisation and proportionate costs.

The 3rd respondent Insurance Company is directed to deposit the

enhanced compensation, together with interest and costs, within a

period of sixty days from the date of receipt of a certified copy of

this judgment. The claimant shall furnish copies of the PAN Card,

AADHAR Card and bank details before the respondent insurer

within a period of one month so as to enable the insurance company

to make the deposit as ordered above. In case of failure to furnish

details as above, it shall be open for the insurance company to

deposit the said amount before the Tribunal. Upon such deposit

being made, the entire amount shall be disbursed to the appellant

at the earliest in accordance with law.

Sd/-