Arathy G.S. vs the Manager

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR. JUSTICE EASWARAN S. FRIDAY, THE 28TH DAY OF MARCH 2025 / 7TH CHAITHRA, 1947 MACA NO. 2362 OF 2021 AGAINST THE AWARD DATED 22.05.2018 IN OPMV NO.376 OF 2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM APPELLANT/PETITIONER:

ARATHY G.S. AGED 29 YEARS D/O. SATHEESAN NAIR, SREE BALAKRISHNA, KRA B-222, KULANGARA LANE, NEAR MARY GIRI SCHOOL, KUDAPPANAKUNNU P.O., THIRUVANANTHAPURAM. BY ADVS. R.T.PRADEEP M.BINDUDAS K.C.HARISH RESPONDENT/3RD RESPONDENT: THE MANAGER THE ORIENTAL INSURANCE COMPANY LTD., PADMASREE, NEAR KSRTC BUS STAND, NEYYATTINKARA P.O., THIRUVANANTHAPURAM-695 121. BY ADV S.K.AJAYAKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: EASWARAN S., J ..................................... MACA No.2362 of 2021 ...................................… Dated this the 28th day of March, 2025

JUDGMENT

The claimant has approached this Court dissatisfied with the award passed by the Motor Accidents Claims Tribunal, Thiruvanathapuram in OP(MV)No.376/2013.

2. The brief facts necessary for the disposal of the

appeal are as follows: On 24.12.2012 at about 5.15 p.m., while the appellant/claimant was riding a scooter bearing Reg.No.KL-01/AX-2639 through Kowdiar - Peroorkada road and when she reached Ambalamukku Junction, a tanker lorry bearing Reg.No.KL-21-E-8322 came in a rash and negligent manner and hit against the appellant’s scooter. The claimant contended that she was a student and was also doing fabric painting and earning an amount of Rs.8,000/- per month. In support of her contention, Exts.A1 to A12 documents were produced and claimant was examined as PW1. No oral or documentary evidence was adduced on the side of the Insurance Company. The Tribunal, on appreciation of evidence, found that the claimant, though was not able to prove her avocation, still was entitled to have the income fixed at Rs.8,000/-. As regards the permanent disability suffered by the appellant in the accident, the Tribunal after taking note of Ext.A8 Disability Certificate , reduced the percentage of disability to 14% and granted the following compensation:

Sl. Head of Claim                    Amount     Amount Basis/vital detils in a
No.                                  Claimed    Awarded nutshell
1    Loss of earnings for 6 months   48,000     32,000     Considering the nature

and gravity of the the duration of the hospitalisation and 2 Transport to hospital 10,000 3,500 Nominal amount 3 Extra Nourishment 5,000 3,000 Considering the nature and gravity of the the duration of

4    Damages to clothings and other 5,000       500        Reasonable on a rough
     articles                                              estimate
5    Medicine-Cum-Treatment          2,00,000   1,63,700   As per admissible

medical bills produced 6 Charges for Bystander 5,000/- 3,750 Considering the nature and gravity of the duration of hospitalisation

7    Compensation for future                25,000       15,000     Nominal Amount
8    Compensation for pain and              50,000       20,000     Considering the nature
     sufferings                                                     and gravity of the

the duration of hospitalisation and

9    Compensation for continuing or 20,000               2,41,920   Rs.8,000x12x18x
     permanent disability, if any                                   14/100
10   Compensation for the loss of           2,50,000     Nil        Disallowed

earning power

11   Compensation for mental                1,50,000     72,600     Considering the nature
     shock, shortened expectations                                  and gravity of the
     in life, loss of amenities in life,                            injuries sustained on
     etc.                                                           the personal life of the

petitioner Total 7,68,000/- 5,55,970 Rs.5,55,970/- with interest 8% per (Claim is limited to 7,00,000/- only) annum from 11.04.2013 till the date of realisation

3. Aggrieved by the insufficiency in the grant of compensation, the appellant has approached this Court.

4. Heard, Sri.R.T.Pradeep - learned counsel appearing for the appellant and Sri.S.K.Ajaykumar - learned counsel appearing for the Insurance Company.

5. On a consideration of the rival submissions raised across the Bar, this Court finds that the appellant is entitled to succeed.

6. In Ramachandrappa v. Manager, Royal

Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the Hon'ble Supreme Court has laid down the principles governing the fixation of notional income. Even going by the said decision, the appellant is entitled to have her income fixed at Rs.8,500/-. However, considering the fact that she being a student and the avocation stood unequivocally proved in the absence of contra-evidence of the Insurance Company, this Court finds that the income of a student cannot be fixed in par with that of a Coolie Worker.

7. It is true that in the application before the Tribunal,

the appellant has claimed only Rs.8,000/- as income. However, in Oriental Insurance Company v. Martin Xavier [2024 KHC 7049], this Court held that the averments in the claim petition need not deter the Tribunal from fixing a higher notional income, if warranted in the facts and circumstances. Therefore, this Court is of the opinion that an amount of Rs.10,000/- can be fixed as the notional income.

8. As regards the percentage of permanent disability,

this Court finds that the Tribunal has reduced the percentage of disability without assigning any reason. In Manikantan G. v. K.Janardhanan Nair and Others [2021 (5) KHC 305], a learned Single Bench of this Court held that the Tribunal cannot reduce the percentage of disability without referring the claimant to the Medical Board. Therefore, this Court is of the view that the appellant is entitled to have the percentage of disability restored at 20%. As an upshot of these discussions, the appellant is entitled to succeed. The appeal is thus allowed and the appellant is entitled for enhanced compensation as follows:

Heads Amount awarded Total Enhanced amount by the Tribunal compensation of compensation awarded in appeal Notional income of appellant is fixed at Rs.10,000/-. Percentage of permanent disability of the appellant is restored to 20%.

Compensation for      20,000/-               30,000/-           10,000/-
pain and sufferings                                             [30000-20000]
Compensation for      2,41,920/-             4,32,000/-         1,90,080/-
continuing or                                [10000x12x18x20/   [432000-241920]
permanent                                    100]

disability, if any

Compensation for      72,600/-               1,44,000/-         71,400/-
mental shock,                                [1/3rd of
shortened                                    permanent
expectations in life,                        disability]

loss of amenities in life etc Total enhanced amount of compensation 2,71,480/- Accordingly, the appellants/claimants are awarded an additional compensation of Rs.2,71,480/- (Rupees Two lakhs seventy one thousand four hundred eighty only) over and above the compensation awarded by the Tribunal with interest @8% per annum from the date of petition till realization together with proportionate costs. The Insurance Company is directed to deposit the aforesaid amount within a period of two months from the date of receipt of a copy of this judgment. While, calculating interest, it is ordered that the appellants will not be entitled for interest for a period of 583 days, which represents the period of delay in filing the appeal. The appeal is ordered accordingly. Sd/- EASWARAN S. JUDGE ACR