Kerala High Court
Suseelamani vs Maryamma on 14 November, 2024
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M.A.C.A. No. 1638/2016 & batch : 1 :
2024:KER:84874
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
THURSDAY, THE 14TH DAY OF NOVEMBER 2024 / 23RD KARTHIKA, 1946
MACA NO. 1638 OF 2016
AWARD DATED 19.01.2016 IN OP(MV) NO.41 OF 2014 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL, PALA
APPELLANT/PETITIONER IN OP(MV):
SUSEELAMANI,
AGED 60 YEARS, W/O.LATE.CHANDRASENAN NAIR,PEENJANIYIL HOUSE,
PUNNATHURA WEST P.O.,ETTUMANOOR VILLAGE,
KOTTAYAM DISTRICT- 686 583.
BY ADVS.
SMT.JISEMOL THOMAS
SRI.VARUGHESE M EASO
RESPONDENTS/RESPONDENTS IN OP(MV):
1 MARYAMMA, W/O.AUGUSTINE,VALAVATHURUTHEL HOUSE, EDAPPALLY
P.O., ERNAKULAM DISTRICT, PIN 682 024.
2 UDAYAKUMAR
S/O.ARUMUKHAN, KARAKKATTU HOUSE,THANISSERY P.O., PERUVEMBA,
PALAKKAD DISTRICT - 678 531.
3 FUTURE GENERALI INDIA INSURANCE CO.LTD.
4TH FLOOR, MALABAR COCHIN ARCADE, M.G.ROAD, COCHIN,
KERALA-682 035.
BY ADVS.
SRI. THOMAS ANTONY
R3 BY SMT. K.J.LIMMY
SRI. K.B.RAMANAND
SRI. M.P.PRAKASH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
14.11.2024, ALONG WITH M.A.C.A. NOS. 1639 & 1640 OF 2016, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A. No. 1638/2016 & batch : 2 :
2024:KER:84874
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
THURSDAY, THE 14TH DAY OF NOVEMBER 2024 / 23RD KARTHIKA, 1946
MACA NO. 1639 OF 2016
AWARD DATED 19.01.2016 IN OP(MV) NO.44 OF 2014 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL PALA
APPELLANTS/PETITIONERS IN OP(MV):
1 SUSEELAMANI, AGED 60 YEARS, W/O.LATE CHANDRASENAN
NAIR,PEENAJNIYIL HOUSE, PUNNATHURA WEST P.O.,ETTUMANOOR
VILLAGE, KOTTAYM DISTRICT - 686 583.
2 ABHIJITH SENAN, AGED 32 YEARS, S/O.LATE.CHANDRASENAN NAIR,
PEENJANIYIL HOUSE, PUNNATHURA WEST P.O., ETTUMANOOR VILLAGE,
KOTTAYM DISTRICT -686 583.
3 ANJU SENAN, AGED 28 YEARS, D/O LATE.CHANDRASENAN NAIR,
PEENJANIYIL HOUSE, PUNNATHURA WEST P.O., ETTUMANOOR VILLAGE,
KOTTAYM DISTRICT - 686 583.
BY ADVS.
SMT.JISEMOL THOMAS
SRI.VARUGHESE M EASO
RESPONDENTS/RESPONDENTS IN OP(MV):
1 MARYAMMA, W/O.AUGUSTINE, VALAVATHURUTHEL HOUSE, EDAPPALLY
P.O., ERNAKULAM DISTRICT, PIN.682 024.
2 MR.UDAYAKUMAR, S/O.ARUMUKHAN, KARAKKATTU
HOUSE,THANNISSERY P.O., PERUVEMBA, PALAKKAD DISTRICT, 678 531.
3 FUTURE GENERAL INDIA INSURANCE CO. LTD., 4TH FLOOR,
MALABAR COCHIN ARCADE, M.G.ROAD,COCHIN, KERALA- 682 011.
BY ADVS.
THOMAS ANTONY
R3 BY SMT.K.J.LIMMY
M.P.PRAKASH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
14.11.2024, ALONG WITH M.A.C.A. NO. 1638/2016 & BATCH, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A. No. 1638/2016 & batch : 3 :
2024:KER:84874
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
THURSDAY, THE 14TH DAY OF NOVEMBER 2024 / 23RD KARTHIKA, 1946
MACA NO. 1640 OF 2016
AWARD DATED 19.01.2016 IN OP(MV) NO.54 OF 2014 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL, PALA
APPELLANT/PETITIONER IN OP(MV)
ANJU SENAN, AGED 28 YEARS,
D/O.LATE CHANDRASENAN NAIR, PEENJANIYIL HOUSE, PUNNATHURA
WEST PO, ETTUMANOOR VILLAGE, KOTTAYAM DISTRICT - 686 583.
BY ADVS.
SMT. JISEMOL THOMAS
SRI.VARUGHESE M EASO
RESPONDENTS/RESPONDENTS IN OP(MV):
1 MARYAMMA
W/O.AUGUSTINE, VALAVATHURUTHEL HOUSE, EDAPPALLY PO,
ERNAKULAM DISTRICT, PIN 682 024.
2 UDAYAKUMAR
S/O.ARUMUKHAN, KARAKKATTU HOUSE, THANNISSERY PO,
PERUVEMBA, PALAKKADU DIST. 678 531
3 FUTURE GENERAL INDA INSURANCE CO. LTD., 4TH FLOOR,
MALABAR COCHIN ARCADE, MG ROAD, COCHIN, KERALA 682 011.
4 SUSEELAMANY, W/O.LATE CHANDRASENAN NAIR, PEENJANIYIL HOUSE,
PUNNATHURA WEST PO, ETTUMANOOR VILLAGE, KOTTAYAM DISTRICT,
PIN: 686 583.
5 ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD., SUNDARM TOWERS,
46 WHITES ROAD, ROYAPETTAH, CHENNAI 600 014.
BY ADVS.
SRI. THOMAS ANTONY
R3 BY SMT.K.J.LIMMY
R5 BY SRI. P. JACOB MATHEW
SRI. MATHEWS JACOB (SR.)
SRI. M.P.PRAKASH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON
14.11.2024, ALONG WITH MACA.1638/2016 & BATCH, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A. No. 1638/2016 & batch : 4 :
2024:KER:84874
JOHNSON JOHN, J.
---------------------------------------------------------
M.A.C.A Nos. 1638, 1639 & 1640 of 2016
--------------------------------------------------------
Dated this the 14th day of November, 2024.
JUDGMENT
The appellants are the petitioners in O.P.(MV) Nos. 41, 44 and 54
of 2014 on the file of the Motor Accident Claims Tribunal, Pala. They are
challenging the quantum of compensation fixed by the Tribunal under
various heads on the ground that the same is inadequate and requires
interference in appeal.
2. According to the appellants, while the deceased Chandrasenan
Nair, was driving maruti car bearing registration No. KL-05-AD-6479
along with his wife and daughter through Ettumanoor-Pala road on
12.08.2012 at 1 p.m., Bolero jeep bearing registration No. KL-07-BR-
8636 driven by the 2nd respondent in a rash and negligent manner
caused to hit the maruti car. The driver and passengers of the maruti car
sustained grievous injuries and subsequently, Chandrasenan Nair died on
16.08.2012.
3. O.P.(MV) No. 44 of 2014 is filed by the wife and children of
Chandrasenan Nair under Section 163A of the Motor Vehicles Act seeking
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compensation. O.P.(MV) No. 41 of 2014 is filed by the wife and O.P.(MV)
No. 54 of 2014 is filed by the daughter of the deceased seeking
compensation for the injury sustained by them in the accident.
4. Joint trial was conducted and from the side of the petitioner in
O.P.(MV) No. 41 of 2014, PW1 examined and Exhibits A1 to A17 were
marked. From the side of the petitioners in O.P.(MV) No. 44 of 2014,
Exhibits A1 to A9 were marked and from the side of the petitioner in O.P.
(MV) No. 54 of 2014, PW1 examined and Exhibits A1 to A18 were
marked. No oral or documentary evidence adduced from the side of the
respondents.
5. After trial and hearing both sides, the Tribunal awarded a total
compensation of Rs.1,68,500/- to the petitioners in O.P.(MV) No. 44 of
2014; Rs.1,88,775/- to the petitioner in O.P.(MV) No. 41 of 2014; and
Rs.1,61,750/- to the petitioner in O.P.(MV) No. 54 of 2014.
6. Heard both sides and perused the records.
7. The learned counsel for the appellants in M.A.C.A No. 1639 of
2016 argued that the deceased Chandrasenan Nair was a driver having a
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monthly income of Rs. 3300/- and the Tribunal has taken his annual
income as Rs.36,000/- and the same is on the lower side. Considering
the occupation of the deceased and the monthly income claimed, I find
that the annual income of the deceased can be taken as Rs.40,000/-.
Since the age of the deceased was between 60-65 years, the amount
provided in the second schedule corresponding to the said annual
income is Rs.2,40,000/-, from which one-third has to be deducted for
the personal expense of the deceased to arrive at the loss of dependency
of the appellants which will come to Rs.1,60,000/- [2,40,000/- - 1/3].
The amount granted by the Tribunal towards loss of dependency is
Rs.1,44,000/-. Therefore, the appellants are entitled for an additional
compensation of Rs.16,000/- towards loss of dependency.
8. Accordingly, the appellants are entitled to the enhanced
compensation as given below:
Particulars Compensation awarded Additional
by the Tribunal (Rs.) amount
granted by this
Court (Rs.)
Loss of dependency 1,44,000/- 16,000/-
Total enhanced compensation 16,000/-
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9. Thus, a total amount of Rs.16,000/- (Rupees Sixteen Thousand
only) is awarded as enhanced compensation. The said amount shall
carry interest at the rate of 9% per annum from the date of the
application till realization. The appellants are also entitled to
proportionate costs in the case.
10. The appellant is the wife of the deceased Chandrasenan Nair
and she also sustained injuries in the accident. At the time of
occurrence, she was travelling in the maruti car driven by the deceased.
The Tribunal found 50% composite negligence on the part of the
deceased who was driving the maruti car and 50% composite negligence
on the part of the 2nd respondent, driver of the jeep. Therefore, the
Tribunal found that the appellant/petitioner is entitled to realize only half
of the total compensation of Rs.3,77,550/-, which will come to
Rs.1,88,775/-. The finding of the Tribunal regarding composite
negligence is not under challenge. At the time of the accident, the
appellant was aged 56 years. The Tribunal reckoned Rs.6,000/- as her
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monthly income and granted loss of earnings for 4 months. The accident
in this case occurred in the year 2012.
11. The principles laid down by the Honourable Supreme Court in
the decisions in Ramachandrappa v. Royal Sundaram Alliance
Insurance Co. Ltd. [(2011) 13 SCC 236] and Syed Sadiq and Others
v. Divisional Manager, United India Insurance Company [(2014) 2
SCC 735 = 2014 KHC 4027], shows that even in the absence of any
evidence, the monthly income of an ordinary worker has to be fixed as
Rs.4500/- in respect of the accident occurred in the year 2004 and for
the subsequent years, the monthly income could be reckoned by adding
Rs.500/- each per year. Considering the facts and circumstances, I am of
the view that the monthly income of the appellant can be calculated by
adopting the said method and therefore, the monthly income of the
appellant in the year 2012 can be fixed as Rs.8500/-.
12. After considering the treatment records and nature of injuries,
the Tribunal has accepted 10% functional disability for calculating the
compensation for loss of earning power. The appellant has sustained
multiple fracture of ribs in both bones, bilateral pneumothorax, soft
tissue loss right eyebrow, fracture lower end radius and ulna left.
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13. The decisions of the Honourable Supreme Court in National
Insurance Co. Ltd. v. Pranay Sethi [(2017) 16 SCC 680] and
Jagdish v. Mohan [(2018) 4 SCC 571] shows that an addition of 10%
of the established income can be made towards future prospects where
the victim was between the age of 50-60 years and that the benefit of
future prospects should not be confined only to those who have a
permanent job and would extend to self employed individuals.
14. The Tribunal granted compensation for loss of earnings for a
period of 4 months at the rate of Rs.6,000/- per month. Since the
monthly income has been revised to Rs.8,500/-, the appellant would get
additional compensation for loss of earnings. Accordingly a further sum
of Rs.5,000/- is awarded towards loss of earnings [(8500 x 4)-24,000) -
½]. When the compensation for loss of earning power due to permanent
disability is calculated as per the revised norms, the appellant would get
an additional compensation of Rs.18,090/- [(8500 + 10%) x 12 x 9 x
10/100)- 64,800/- ½]. The Tribunal has not granted any amount to
damage to clothing and I find that Rs.500/- can be awarded under this
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head. Considering the nature of injuries and the period of treatment,
bystander's expenses can be enhanced by Rs.2500/-.
15. Considering the nature of injuries, period of treatment and
disability, enhancement of Rs.10,000/- each can be allowed under the
head 'pain and suffering' and 'loss of amenities'. In view of the
composite negligence, the appellant will be entitled for an additional
amount of Rs.250/- towards damage to clothing, Rs.1,250/- towards
bystander's expenses and Rs.5,000/- each towards pain and suffering
and loss of amenities.
16. Accordingly, the appellant is entitled to the enhanced
compensation as given below:
Particulars Additional amount
granted by this Court
(Rs.)
Loss of earnings 5,000/-
Compensation for loss of
earning capacity due to 18090/-
permanent disability
Damage to Clothing 250/-
Bystander's expenses 1250/-
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Pain and sufferings 5000/-
Loss of amenities 5000/-
Total enhanced compensation 34,590/-
17. Thus, a total amount of Rs.34,590/- (Rupees Thirty Four
Thousand Five Hundred and Ninety only) is awarded as enhanced
compensation to the appellant in M.A.C.A No. 1638 of 2016. The said
amount shall carry interest at the rate of 9% per annum from the date
of the application till realization. The appellant would also be entitled to
proportionate costs in the case.
18. The appellant is the daughter of the deceased Chandrasenan
Nair, who sustained injuries in the accident. At the time of the accident,
she was travelling in the maruti car driven by the deceased. The owner,
driver and insurer of the vehicle which caused to hit the maruti car are
respondents 1 to 3. The owner and insurer of the maruti car are
respondents 4 and 5.
19. The Tribunal granted a total compensation of Rs.1,61,750/-.
The learned counsel for the appellant argued that the Tribunal has not
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granted any amount under the head 'damage to clothing', and that only
Rs.1500/- was granted under the head 'bystander's expenses'. It is in
evidence that the appellant has sustained comminuted depressed
fracture left syzomatic maxillary complex and bone loss from orbital floor
and intra orbital margin. Considering the treatment records and the
nature of injuries, I find that an additional amount of Rs.10,000/- each
can be granted towards pain and suffering and loss of amenities.
Considering the facts and circumstances I find that Rs.500/- can be
granted towards damage to clothing and an additional amount of Rs.
1000/- towards bystander's expenses.
20. The learned counsel for the appellant pointed out that the
appellant was aged only 24 years at the time of the accident and a
perusal of Exhibit A13 would show that there is wound scarring of right
upper eyelid and forehead. There is also malocclusion of teeth. Even
though 10% disability as per Mc Bride scale was assessed in Exhibit A13,
the Tribunal has not granted any compensation towards loss of earning
power, as there is no functional disability. It is also pointed out that the
Tribunal has not granted any compensation for facial disfiguration.
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Considering the fact that the appellant was an unmarried girl aged 24
years at the time of accident and taking note of the wound scarring of
right upper eyelid and forehead, I find that Rs.15,000/- can be granted
under the head of facial disfiguration. In the absence of any functional
disability, there is no reason to interfere with the finding of the Tribunal
regarding compensation under the head of loss of earning capacity.
21. Accordingly, the appellant is entitled to the enhanced
compensation as given below:
Particulars Additional amount granted by
this Court (Rs.)
Pain and suffering 10,000/-
Loss of amenities 10,000/-
Damage to clothing 500/-
Bystander's expenses 1,000/-
Facial disfiguration 15,000/-
Total enhanced compensation 36,500/-
22. Thus, a total amount of Rs.36,500/- is awarded as enhanced
compensation to the appellant in M.A.C.A No. 1640 of 2016. The said
amount shall carry interest at the rate of 9% per annum from the date
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of the application till realization. The appellant would also be entitled to
proportionate costs in the case.
The claimants shall furnish the details of the bank account to the
insurance company for transfer of the amount.
The appeals are allowed as above.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
