Sisily Mathew vs James Joseph
2025 Latest Caselaw 2904 Ker

Kerala High Court

Sisily Mathew vs James Joseph on 27 January, 2025

MACA.2477/2015 & 2936/2015




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                                                     2025:KER:13200

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
            THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
    MONDAY, THE 27TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946
                             MACA NO. 2477 OF 2015
          AGAINST THE AWARD DATED 19.02.2015 IN OPMV NO.1197 OF
2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA

APPELLANT/2nd RESPONDENT:

             THE BRANCH MANAGER, ICICI LOMBARD GENERAL
             INSURANCE CO.LTD, COCHIN, THROUGH THE LEGAL
             MANAGER, ICICI LOMBARD GENERAL INSURANCE CO,
             KANNANKERY ESTATE, 3RD FLOOR, SHANMUGHAM ROAD,
             MARINE DRIVE, KOCHI 682 031.

             BY ADV SRI.LATHEESH SEBASTIAN


RESPONDENTS/PETITIONER & 1ST RESPONDENT:

      1      SISLIY MATHEW
             W/O.MATHEW, LIMA BHAVAN, MANAKAYAM P.O.,
             CHITTAR SEETHATHODE VILLAGE,
             PATHANAMTHITTA DISTRICT 689 663.

      2      JAMES JOSEPH (DECESED, REMOVED)
             PARAKKAL HOUSE, CHITTAR P.O., KULATHUNKAL
             JUNCTION, CHITTAR, PATHANAMTHITTA DISRICT 689 663.

             (REMOVED FROM THE PARTY ARRAY AS PER ORDER DATED
             22/07/2024)

             BY ADV SRI.A.N.SANTHOSH

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 27.01.2025, ALONG WITH MACA.2936/2015, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 MACA.2477/2015 & 2936/2015




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                                                     2025:KER:13200


              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
            THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
    MONDAY, THE 27TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946
                             MACA NO. 2936 OF 2015
          AGAINST THE AWARD DATED 19.02.2015 IN OPMV NO.1197 OF
2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,PATHANAMTHITTA

APPELLANT/PETITIONER:

             SISILY MATHEW
             W/O. MATHEW, LIMA BHAVAN,
             MANAKAYAM P.O., CHITTAR SEETHATHODE VILLAGE.

             BY ADVS.
             SRI.A.N.SANTHOSH
             SMT.P.N.SINDHU


RESPONDENTS/RESPONDENTS:

      1      JAMES JOSEPH
             PARAKKAL HOUSE, CHITTAR P.O.,
             KULATHUNGAL JUNCTION, CHITTAR - 689 663.

      2      THE BRANCH MANAGER
             ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
             COCHIN -682 016.


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 27.01.2025, ALONG WITH MACA.2477/2015, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 MACA.2477/2015 & 2936/2015




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                                                       2025:KER:13200



                               JUDGMENT

Dated this the 27th day of January, 2025

The petitioner in O.P.(M.V.) No.1197/2007 on the file of the Motor

Accident Claims Tribunal, Pathanamthitta is the appellant in MACA No.2936

of 2015 and the 2nd respondent in the said OP is the appellant in MACA

No.2477 of 2015. (For the purpose of convenience, the parties are

hereafter referred to as per their rank before the Tribunal).

2. 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 30.6.2007. According to the

petitioner, on 30.6.2007, while she was travelling in a Tata Sumo car, owned

and driven by the 1st respondent, in a rash and negligent manner dashed first

against an authorickshaw and then hit against a tree and as a result of which

the petitioner sustained serious injuries.

3. The 2nd respondent is the insurer of the Tata Sumo. According to the

petitioner, the accident occurred due to the negligence of the driver of the MACA.2477/2015 & 2936/2015

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offending vehicle. The quantum of compensation claimed in the O.P. is

Rs.20,56,000/-.

4. The insurance company filed a written statement, admitting the

accident as well as policy, but disputing the negligence on the part of the

driver of the offending vehicle.

5. The evidence in the case consists of the oral testimony of PW1 and

documentary evidence Exts.A1 to A47 series and , B1 series.

6. After evaluating the evidence on record, the Tribunal awarded a total

compensation of Rs.8,69,588/-.

7. Aggrieved by the quantum of compensation awarded by the

Tribunal, the petitioner preferred this appeal.

8. Now the point that arises for consideration is 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

petitioner/appellant, and Sri. Latheesh Sebastian, the learned Standing

Counsel for the 2nd respondent.

10. The Point: In this case the accident as well as valid policy of the MACA.2477/2015 & 2936/2015

2025:KER:13200

offending vehicle are admitted. One of the contentions raised by the learned

counsel for the petitioner is that the notional income of the petitioner fixed

by the Tribunal at Rs.5,000/- is on the lower side. The learned counsel for te

2nd respondent would contend that towards future prospects, the Tribunal has

added 30% of the income, which is on the higher side. The petitioner was

aged 48 years on the date of the accident. Admittedly, she was a housewife.

11. As per the dictum laid down by the Hon'ble Supreme Court in the

decision in Ramachandrappa v. Manager, Royal Sundaram Alliance

Insurance Co. Ltd. [2011 (13) SCC 236], the notional income of a coolie, in

the year 2007 will come to Rs.6,000/-. Since the petitioner could not prove

her job or income as claimed in the OP, in the light of a dictum laid down in

the decision of the Hon'ble Supreme Court in Ramachandrappa (supra) ,

his notional income is liable to be fixed as that of a coolie, at Rs.6,000/-.

12. In the accident the petitioner sustained illiac wing with pubic ramus

right, trochentar comminuted and sub-trohantric extension right, lumbar

vertebrae body, eranvirs process right, retro peritonial hemetoma. She was

treated as inpatient for 52 days.

13. Ext. A35 disability certificate shows that the petitioner suffered MACA.2477/2015 & 2936/2015

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60% permanent physical disability. It was issued by the medical board. The

Tribunal, however, scaled down the percentage of disability of the petitioner

to 40%, without assigning valid and cogent reasons. The law is settled that, if

the Tribunal is not satisfied with the disability certificate produced by the

petitioner, the remedy is to refer him to a medical board or higher Authority.

(See Manikantan G. v. Janardhanan Nair and Others, 2021 (5)KHC 305).

Having not done so, the Tribunal was not justified in scaling down the

percentage of disability from what is shown in the disability certificate. I do

find any grounds to disbelieve the said disability and as such the permanent

physical disability of the petitioner is fixed as 60%.

14. On the date of accident, the petitioner was aged 48 years.

Therefore, 25% of the monthly income is to be added towards future

prospects, as held in the decision in National Insurance Co.Ltd v Pranay

Sethi [(2017) 16 SCC 680] and the multiplier to be applied is 13, as held in

Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121. In

the above circumstances, the loss of disability will come to Rs.7,02,000/-.

15. Towards loss of earning, the tribunal has awarded only Rs.30,000/-

being the income for 6 months @Rs.5,000/-. Since the notional income of the MACA.2477/2015 & 2936/2015

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petitioner is re-fixed at Rs. 6,000/-, towards loss of earning she is entitled to

get a sum of Rs. 36,000/- (6000x 6 months).

16. Towards the head 'pain and sufferings', the Tribunal has awarded

Rs.60,000/-. Towards 'loss of amenities of life' Rs.50.000/- was awarded and

towards 'extra nourishment' Rs.3,000/- was awarded. According to the learned

counsel for the petitioner, the compensation awarded on those heads are on

the lower side.

17. The petitioner sustained very serious injuries in the accident and

was treated as inpatient for 52 days. Because of the injuries sustained, the

percentage of disability suffered and the length of treatment undergone by the

petitioner, I hold that the compensation awarded by the Tribunal on the heads

'pain and sufferings', 'loss of amenities of life' and 'extra nourishment' are on

the lower side and hence they are enhanced to Rs.85,000/-, Rs.60,000/- and

Rs.7,000/- respectively.

18. No change is required, in the amounts awarded on other heads, as

the compensation awarded on those heads appears to be just and reasonable.

19. Therefore, the petitioner is entitled to get a total compensation

of Rs.12,10,988/-, as modified and recalculated above and given in the MACA.2477/2015 & 2936/2015

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table below, for easy reference:

Sl.

 No.           Head of Claim         Amount awarded by      Amount Awarded in
                                       Tribunal (in Rs.)              Appeal
                                                                   (in Rs.)
   1 Loss of earning                30,000/-                36,000/-
   2 Transportation                 20,000/-                20,000/-
   3 Extra nourishment              3,000/-                 7,000/-
   4 Damage to clothing             1,000/-                 1,000/-
   5 Medical Bills                  2,93,988/-              2,93,988/-
   6 Bystander expenses             6,000/-                 6,000/-
   7 Loss of disability             4,05,600/-              7,02,000/-
   8 Pain and sufferings            60,000/-                85,000/-
   9 Loss of amenities              50,000/-                60,000/-
       Total                        8,69,588/-              12,10,988/-
       Enhanced Rs.3,41,400/-

21. In the result, this Appeal is allowed in part, and Respondent No.2

is directed to deposit a total sum of Rs. 12,10,988/- (Rupees twelve lakh ten

thousand nine hundred and eighty eight Only), less the amount already

deposited, if any, along with interest at the rate ordered by the Tribunal, from

the date of the petition till deposit/realisation, with proportionate costs, within

a period of two months from today. (enhanced compensation will carry

interest @8%).

MACA.2477/2015 & 2936/2015

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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 sou.