Kerala High Court
Ambika vs Sarangadharan on 6 November, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 6TH DAY OF NOVEMBER 2024 / 15TH KARTHIKA, 1946
MACA NO. 2308 OF 2021
AGAINST THE AWARD DATED 05.03.2021 IN O.P.(M.V.) NO.1103 OF
2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA
APPELLANT/PETITIONER:
AMBIKA
AGED 56 YEARS
W/O.SASIKUMAR, NIKARTHIL NEDIYANI HOUSE, KALAVOOR P.O.,
VALAVANADU, MANNACHERRY GPW-23, ALAPPUZHA DISTRICT,
KERALA STATE, PIN - 688 538.
BY ADVS.
A.T.ANILKUMAR
V.SHYLAJA
RESPONDENTS/RESPONDENTS:
1 SARANGADHARAN
S/O.KUNJUPANICKAN, SYAM NIVAS, MUTHUKULAM NORTH,
CHEPPAD, P.O.HARIPPAD, ALAPPUZHA DISTRICT,
PIN - 690 507 (OWNER).
2 DEVAKUMAR D.
S/O.DASAPPAN PILLAI, DEVALAYAM HOUSE, VETTUVENI P.O.,
HARIPPAD, ALAPPUZHA DISTRICT, PIN - 690 514.
3 ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED
REPRESENTED BY ITS MANAGER, SUNDARAM TOWERS,
46 WHITE ROAD, ROYAPETTAH, CHENNAI, PIN - 600 014.
4 SYAMKUMAR
S/O.SASIKUMAR, NIKARTHIL NEDIYANI HOUSE,
KALAVOOR, P.O., VALAVANADU, MANNANCHERY G.P.W.23,
ALAPPUZHA DISTRICT, PIN - 688 538.
MACA NO. 2308 OF 2021 -2-
2024:KER:83663
5 THE ORIENTAL INSURANCE COMPANY LIMITED
REPRESENTED BY ITS BRANCH MANAGER,
BRANCH OFFICE, OPP. SEEMATTI THEATRE,
NEAR YMCA BRIDGE, ALAPPUZHA, PIN - 688 001.
BY ADV
SRI.V.P.K.PANICKER, SC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 06.11.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
MACA NO. 2308 OF 2021 -3-
2024:KER:83663
JUDGMENT
The appeal is preferred by the claimant for
enhancement of the compensation awarded by the Motor
Accidents Claims Tribunal. The facts for disposal of the
appeal are as follows:
On 15.01.2013 when the applicant was travelling in a
motorcycle bearing Registration No.KL-04/AA-2507 as
pillion rider along Alappuzha-Kollam National Highway
from south to north. When the motor bike reached on
the south of Kappakada Junction, Punnapra a maruti car
bearing registration No.KL-29/D-8089 driven by the 2nd
respondent came in a rash and negligent manner from
south to north and hit against the motorcycle. As a
result of the accident, the claimant - appellant, who was
a pillion rider was thrown out and then sustained
injuries. The claimant-appellant contended that she was
an owner of a coir factory and was earning Rs.16,000/- as
monthly income. The claimant also contended that she
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suffered 25% disability on account of the injuries
sustained by her caused in the accident. In support of
her claim, the appellant produced Exts.A1 to A26 and
examined PW1 to PW6. The third respondent who is the
insurer of the offending vehicle and did not adduce any
evidence but however disputed the age, occupation and
income of the claimant-appellant. The tribunal on
appreciation of evidence proceeded to fix the notional
income of the claimant at Rs.10,500/- and granted
following compensations:
"
No. Head of claim Amount Amount
claimed Awarded
PART-I
a) Loss of earnings 1,60,000/- 63,000/-
b) Transport to hospital, 2,00,000/- 5,000+85,000
medical expenses, +15,000+
extra-nourishment 11,750=
charges and 1,16,750/-
bystander's expenses
c) Damage to clothing and 1,000/- 1,000/-
articles
PART-II
d) Compensation for pain 30,000/- 35,000/-
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& suffering
e) Compensation for 7,08,000/- 2,29,320/-
permanent disability,
disfiguration, and
consequential loss of
earning power
f) Expenses for future 1,00,000/- Not allowed
treatment
g) Compensation for loss 40,000/- 35,000/-
of amenities
12,39,000/- 4,80,070/-
Total (Claim is
limited to
₹.12,00,000/-)
"
While granting the compensation as aforesaid, the
tribunal did not advert to the evidence of PW2 who was
examined by the claimant - appellant to prove Ext.A25
Disability Certificate. The evidence of PW3 was also
ignored. PW3 was examined in order to sustain the claim
of Rs.1,56,000/- expended by the claimant towards
availing of services of home nurse. In view of the
aforesaid infirmities, the claimant has preferred the
present appeal.
2. Heard Smt. V.Shylaja, learned counsel
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appearing for the appellant and Sri.V.P.K.Panicker
learned Standing Counsel for the fifth respondent
insurance company, who is the insurer of the vehicle on
which the claimant - appellant was a pillion rider.
3. As per the office report, notice to the third
respondent has been served and there is no appearance
for the third respondent and accordingly this Court
proceeds to consider the appeal on merits.
4. Smt.V.Shylaja, learned counsel appearing for
the appellant with reference to Exts.A18 and A19
contends that the ownership of the appellant over the
coir factory stood indisputedly proved. Although the
claimant-appellant did not produce any evidence to show
the exact income which she was earning out of the coir
factory, tribunal ought to have fixed a reasonable amount
other than what has been now fixed. She also pointed out
that the tribunal had completely ignored Ext.A25
Disability Certificate, which stood admittedly proved by
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examining PW2. Similarly as regards the claim for the
expenses incurred by the claimant for availing the
services of a home nurse, the entire bills were produced
before the tribunal which was also proved by examining
PW3.
5. I have considered the contentions raised
across the Bar.
6. Three issues are required to be addressed by
this Court in the present appeal.
(a) What should be the notional income of the
claimant - appellant.
(b) Whether the tribunal was justified and ignoring
Ext.A25, and
(c) whether the claimant is entitled for
compensation towards the expense incurred for
availing the services of the home nurse.
7. As regards the first issue, a reading of the
award shows that the tribunal also subscribed to the
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contentions raised by the claimant. Exts.A18 and A19 are
the documents produced by the appellant to show that
she was an owner of the coir factory. When the
ownership over the coir factory stood unequivocally
proved, the question before the tribunal would be what
should be the notional income to be fixed in the absence
of any concrete evidence produced by the claimant to
prove the income generated out of the coir factory. The
fixation of the notional income can thus only be on a
guess work. While doing the guess work, the tribunal
arrived at an amount of Rs.10,500/-, even going by the
principles laid down by the Supreme Court in
Ramachandrappa Vs. Manager, Royal Sundaram
Alliance Insurance Company Limited [(2011) 13
SCC 236], the notional income during the year 2013
would have been only Rs.9,000/-. Therefore, although
prima facie it may appear that the tribunal was justified
in fixing an amount of Rs.10,500/-, this Court is of the
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considered view that the appellant is entitled for a
slightly better amount being fixed as a notional income,
considering the avocation of the appellant. Thus, this
Court considering the peculiar facts and circumstances,
fixes the notional income of the claimant at Rs.13,500/-.
8. The claimant had produced two Disability
Certificates. Exts.A25 and A26. Both the Certificates
were proved by examining the author of the same.
Ext.A25 Disability Certificate is issued by the Medical
Board constituted by the Department of Health Services,
Government of Kerala. A reading of the certificate shows
that the claimant suffered permanent disability of 25%.
PW2 was examined by the claimant to prove the veracity
of Ext.A25 Disability Certificate. The perusal of the
award of the tribunal shows that there is no discussion as
regards the acceptability of Ext.A25. The tribunal
completely ignored Ext.A25 and proceeded only on the
single tangent that what was produced before is only
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Ext.A26 which fixed the disability at the rate of 14%.
Therefore, this Court has no hesitation to hold that the
award of the tribunal to that extent is unsustainable.
9. Lastly, the claimant - appellant contended that
an amount of Rs.1,56,000/- has been expended by her for
availing the services of a home nurse from 22.02.2013 to
03.05.2015. The aforesaid claim is also proved by
examining PW3 the proprietor of the firm, which
extended the services of the home nurse. The insurance
company had extensively cross-examined PW3 with
regard to the claim made by the claimant. However,
nothing substantial has been brought out, out of cross
examination of PW3 to discredit the evidence.
Surprisingly, reading of the award impugned in the
appeal shows that the tribunal has not even touched the
aforesaid claim. Therefore, there is a clear abdication.
10. As an upshot of the above discussion, the
appellant is entitled to succeed and entitled for the
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enhanced compensation as follows:
Head of claim Amount Enhanced
awarded amount
Loss of earnings 45000
63000 (13500 x 8 -
63000)
Compensation for
permanent disability, 2,29,320 297180
disfiguration, and (13500 x 12 x
consequential loss of 25/100 x 13 =
526500-229320)
earning power
Compensation towards
expenses for availing the 156000
home nurse
Total 4,98,180
Thus, a total amount of Rs.4,98,180/- (Rupees
Four lakh ninety eight thousand one hundred and eighty
only) is awarded as enhanced compensation. The said
amount shall carry interest at 9% per annum from
16.11.2013 till realization. The appellant would also be
entitled for proportionate costs in the case. The claimant
shall furnish the details of the bank account to the
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insurance company for transfer of the amount. The
appeal is ordered accordingly.
Sd/-
EASWARAN S.
JUDGE
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