Kerala High Court
Shygy Mathew vs Managing Director on 20 January, 2025
2025:KER:4623
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 20TH DAY OF JANUARY 2025 / 30TH POUSHA, 1946
MACA NO. 3099 OF 2014
AGAINST THE AWARD DATED 02.06.2014 IN OPMV NO.769 OF
2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA
APPELLANT/PETITIONER :-
SHYGY MATHEW, W/O.MATHEW.K.,
KALLUPURAYIL HOUSE,ANIKADUP.O.,MALLAPPALLY
BY ADV SRI.A.N.SANTHOSH
RESPONDENTS/RESPONDENTS 2 AND 3 :-
1 MANAGING DIRECTOR
KSRTC FORT,TRIVANDRUM-695 O23.
2 THE BRANCH MANAGER
NEW INDIA ASSURANCE CO.LTD,COLLEGE
ROAD,PATHANAMTHITTA-689 645
BY ADVS.
SRI.M.GOPIKRISHNAN NAMBIAR, SC, KSRTC
Dinesh Mathew J Murickan
ALEX ANTONY SEBASTIAN P.A.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 20.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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2
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JUDGMENT
The petitioner in O.P.(MV) No.769/2009 on the file of the Motor
Accidents Claims Tribunal, Pathanamthitta, is the appellant. The respondents 2
and 3 in the O.P. are the respondents herein. The petitioner filed the above
O.P. under Section 166 of the Motor Vehicles Act, 1988, claiming
compensation for the injuries sustained in a motor vehicle accident that
occurred on 03.01.2009.
2. According to the petitioner, on 03.01.2009 at about 06.40 pm,
while she was travelling in a Tata Sumo car bearing Registration No.KL-28-
290, a KSRTC bus bearing Registration No.KL-15-6723 driven by the 1 st
respondent in a rash and negligent manner, came from behind and hit against
her car. As a result of the accident, she sustained very serious injuries.
3. The 2nd respondent is the owner and the 3rd respondent is the
insurer of the offending vehicle.
4. The 3rd respondent filed written statement and contended that
there is no negligence on the part of the 1st respondent.
5. The evidence in the case consists of the oral testimonies of Pws
1 and 2 and documentary evidence of Exts.A1 to A22 on the side of the
petitioner.
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6. After evaluating the evidence on record, the Tribunal awarded a
compensation of Rs.22,87,152/-.
7. Being dissatisfied with the quantum of compensation awarded by
the Tribunal, the petitioner preferred this appeal.
8. Now the point that arises for considerations are the following:
Whether the quantum of compensation awarded by the Tribunal is just
and reasonable.
9. Heard Sri.A.N.Santhosh, the learned Counsel appearing for the
appellant, and Sri.Alex Antony Sebastian, the learned Standing Counsel
for the 1st respondent, and Sri.Dinesh Mathew J Murickan, the learned
Counsel appearing for the 2nd respondent.
10. One of the contentions raised by the learned counsel for the
petitioner is that though the petitioner was a qualified nurse, her notional
income was fixed by the Tribunal at Rs.4,500/- and it is too meager. The fact
that the petitioner was a qualified nurse is not in dispute.
11. The learned counsel for the 3rd respondent would argue that
during the relevant period she was not working as a nurse. It is true that
though the petitioner was a qualified nurse and she had worked prior to the
accident in various places, including abroad, during the relevant period she
was not working as a nurse. The explanation offered by her was that, during
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that period, she had to look after her baby. The above explanation offered by
the petitioner could not be disbelieved, as at the relevant time, she was the
mother of a baby.
12. As argued by the learned counsel for the petitioner, even the notional
income of a coolie during the year 2009 will come to Rs.7,000/- in the light of
the dictum laid down by the Hon'ble Supreme Court in Ramachandrappa v.
Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC
236]. Since the petitioner is a qualified nurse, and prior to the accident, she
worked in various hospitals, including abroad, her notional income is fixed at
Rs.8,000/-.
13. In the accident she sustained the following injuries :-
"parineal injury, degloving injury buttock left with sloughed skin."
14. Altogether she was treated as an inpatient for 155 days. As per Ext.A7
disability certificate issued by the Medical Board, her permanent physical
disability is 70%, and the Tribunal accepted the same as such. However, the
learned counsel for the petitioner would argue that though the permanent
physical disability of the petitioner is 70%, she is unable to do any job or earn
anything, and as such her functional disability is to be taken as 100%. During
the cross examination, PW2, one of the Doctor in the Medical Board explained
the impact of perineal injury as affecting the acts of urination and defecation.
According to him, the petitioner's defecation is incontinent and therefore she
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was put on a colostomy bag. According to him, the chance of the petitioner
going back to normalcy is absolutely nil. According to PW2, the petitioner
could not enjoy sexual intercourse or carry on her profession as a nurse. The
Tribunal after observing the petitioner noted in the impugned award that she
came in a walker carrying colostomy bag. She complained to the Tribunal that
she could not continuously sit and could not stand putting her legs on the
ground, without the help of a walker. Her thighs showed extensive surgical
scars. It was after observing the petitioner personally, the Tribunal accepted
her permanent physical disability at 70%, as assessed by the Medical Board.
Though the permanent physical disability of the petitioner is 70% as assessed
by the Medical Board and as observed by the Tribunal, it can be seen that she
will not be able to do any work or earn anything because of the injuries
sustained in the accident and the disability suffered by her on account of the
same. In the above circumstances, I am of the considered view that her
functional disability is to be fixed at 100%.
15. Since the petitioner was aged 34 years on the date of the
accident, 40% of the income is to be added towards future prospects, and the
multiplier to be applied is 16. Therefore, the compensation for loss of
disability will come to Rs.21,50,400/-.
16. Since the petitioner requires the help of others, even to stand
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up, and she has no control over urination and defecation, she requires the
assistance of a bystanders 24x7. However, since she is not completely
bedridden, I hold that the service of one bystander will be enough in this case.
In the decision in Kajal v. Jagadeesh Chand & Others [2020 (4) SCC 413],
the expense of a bystander was fixed by the Hon'ble Supreme Court at
Rs.5,000/- per month. Taking into account the fact that, the minimum wage of
the skilled worker in the State of Haryana in the year 2004 was below
Rs.5,000/-. In the present case, the accident was in the year 2009. According
to the learned counsel for the petitioner in Kerala the minimum wages for a
skilled labourer during the year 2009 will be much more. However, he could
not produce any notification issued by the Government of Kerala in that
respect. Therefore, I am inclined to fix the expenses of a bystander on the basis
of the dictum laid down in Ramachandrappa (supra). As per the above
decision, the notional income of a coolie during the year 2009 will come to
Rs.7,000/-. In the above circumstances, I hold that towards bystander
expenses, the petitioner is entitled to get a sum of Rs.13,44,000/- (7,000 x 16
x12).
17. Towards pain and suffering, the Tribunal has awarded only
Rs.75,000/-. Towards loss of amenities Rs.1,00,000/- and towards extra
nourishment Rs.3,000/- was awarded. According to the learned counsel for the
petitioner, considering the nature of injuries sustained by the petitioner and
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percentage of disability suffered by her, compensation awarded on the above
heads are on the lower side. It is true that considering the nature of injuries
sustained by the petitioner, the percentage of disability suffered by her, and the
fact that she had undergone 8 major surgeries during the hospitalisation period
of 155 days, I hold that the compensation awarded on the head pain and
suffering is on the lower side. Similarly, due to the reason that she has no
control over her urination and defecation and she lost her marital life because
of the injuries sustained in the accident, I hold that the compensation awarded
on the head loss of amenities is also on the lower side. Therefore, the
compensation awarded under the head pain and suffering and loss of amenities
are enhanced to Rs.5,00,000/- each. Compensation awarded on the head extra
nourishment is also on the lower side, and the same is enhanced to Rs.20,000/-.
18. The Tribunal awarded a sum of Rs.54,000/- on the head loss of
earnings and another Rs.50,000/- on the head loss of life expectancy. Since the
functional disability of the petitioner is fixed at 100%, further compensation on
the head loss of earnings and loss of life expectancy are not required.
Therefore, those amounts awarded on the head loss of earnings and loss of life
expectancy will be deducted.
19. No change is required, in the amounts awarded on other heads,
as the compensation awarded on those heads appears to be just and reasonable.
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20. Therefore, the petitioner/appellant is entitled to get a total
compensation of Rs.54,89,952/-, as modified and recalculated above and given
in the table below, for easy reference.
Sl. No. Head of claim Amount awarded by The amount given
the Tribunal(Rs) in appeal (Rs.)
1 Loss of earnings 54,000 Nil
2 Transport to hospital 40,000 40,000
3 Extra nourishment 3000 20000
4 Damage to clothing 1000 1000
5 Medical expenses 934552 934552
6 Bystander expenses 72,400 13,44,000
7 Pain and suffering 75,000 5,00,000
8 Loss of amenities 1,00,000 5,00,000
9 Compensation for loss of earning 907200 21,50,400
capacity and disability
10 Loss of life expectancy 50,000 Nil
Total 22,87,152 54,89,952
Amount enhanced 32,02,800
21. In the result, this Appeal is allowed in part, and the 3rd
respondent is directed to deposit a total compensation of Rs.54,89,952/-
(Rupees Fifty Four Lakh Eighty Nine Thousand Nine Hundred and Fifty Two
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Only), less the amount already deposited, if any, along with interest @ 9% per
annum, from the date of the petition till realisation, with proportionate costs,
within a period of two months from today (interest for the enhanced amount is
limited to 8%).
22. On depositing the aforesaid amount, the Tribunal shall disburse
the entire amount to the petitioner, excluding court fee payable, if any, without
delay, as per rules.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
SMA
