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2021 DIGILAW 247 (KER)

Susy @ Lucy v. Suma Lalu

2021-03-09

C.S.DIAS

body2021
JUDGMENT : The appellant was the petitioner in O.P. (MV) No.1825/2009 on the file of the Additional Motor Accidents Claims Tribunal, Kottayam. The respondents in the appeal were the respondents in the claim petition. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The concise case in the claim petition, for the determination of the appeal, is: on 1.8.2009 when the petitioner was travelling in a bus bearing Reg. No.KL-5V 6757 (offending vehicle) from Vadavathoor to Kottayam, the bus stopped in-front of the Baselious College and the Conductor directed the passengers to alight from the bus. While the petitioner was alighting from the bus, the driver suddenly moved the bus forward. The petitioner fell down and back wheel of the bus ran over her and she sustained grievous injuries. The petitioner was treated at the Medical College Hospital, Kottayam. The accident occurred due to the rashness and negligence on the part of the respondents 3 and 4 – the driver and conductor of the bus. The 1st respondent was the owner of the bus and the 2nd respondent is the insurer. The petitioner claimed that she was a maid servant and drawing a monthly income of Rs.6,000/-. The respondents 1 to 4 – the owner, insurer, driver and conductor of the bus are jointly and severally liable to pay the petitioner a total compensation of Rs.3,67,106/-. 3. The respondents 1,3 and 4 remained absent and were set ex parte. 4. The 2nd respondent filed a written statement refuting the allegations in the claim petition. The 2nd respondent contended that the petitioner was only a house-wife at the time of accident. The allegations regarding the injuries, the period of treatment, the expenditure etc., were denied by the 2nd respondent. The 2nd respondent also contended that there was no rashness of negligence on the part of the respondents 3 and 4. However, the 2nd respondent admitted that the offending vehicle was insured by the 2nd respondent. The 2nd respondent prayed that the claim petition be dismissed. 5. The petitioner produced and marked Exts.A1 to A14 in evidence. Ext.X1 disability certificate was marked as a court exhibit. Neither party adduced any oral evidence. 6. However, the 2nd respondent admitted that the offending vehicle was insured by the 2nd respondent. The 2nd respondent prayed that the claim petition be dismissed. 5. The petitioner produced and marked Exts.A1 to A14 in evidence. Ext.X1 disability certificate was marked as a court exhibit. Neither party adduced any oral evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition in part by directing the 2nd respondent to pay the petitioner a compensation of Rs.3,68,000/-with interest at the rate of 7.5% per annum from the date of petition till the date of realisation along with the proportionate costs. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the 2nd respondent/Insurance Company. 9. Even though notice was served on the respondents 1,3 and 4, there is no appearance for them. 10. The sole question that emanates for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is just and reasonable? 11. A Constitution Bench of the Hon'ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi [ (2017) 16 SCC 680 ], has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability 12. Ext.A3 final report, Ext.A5 scene mahazar and Ext.A6 vehicle mahazar substantiate that the petitioner met with an accident as averred in the claim petition, on 1.8.2009 due to the rashness and negligence on the part of the 3rd respondent, the driver of the bus. Ext.A8 wound certificate and Ext.A12 discharge book proves that the petitioner was hospitalised for a period of 95 days in the Medical College Hospital, Kottayam. Ext.X1 disability certificate proves that the petitioner suffered a permanent disability of 24.9% as certified by the Medical Board. 13. The principal area of dispute in the appeal is with regard to the notional income and the disability of the petitioner fixed by the Tribunal at 20%. 14. Ext.X1 disability certificate proves that the petitioner suffered a permanent disability of 24.9% as certified by the Medical Board. 13. The principal area of dispute in the appeal is with regard to the notional income and the disability of the petitioner fixed by the Tribunal at 20%. 14. The petitioner had pleaded that she was a maid servant and getting a salary of Rs.6,000/-per month. The Tribunal, arrived at a finding that the petitioner was only getting a notional income of Rs.4,500/-per month. 15. In Ramachandrappa v. Manager, Royal Sundaram Alliance [ (2011) 13 SCC 236 ] and in Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd [ (2014) 2 SCC 735 ], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in year 2004 at the rate of Rs.4,500/-per month and that of a vegetable vendor at the rate of Rs.6,500/-per month in the year 2006, respectively. Recently, this Court in Soman v. Jinesh James and others [ILR 2020 (3) Kerala 1003] has fixed the notional income of a coolie worker in the year 2010 at Rs.7,500/-per month. 16. Following the parameters laid down by the Hon'ble Supreme Court in the aforecited decisions, I am of the considered opinion that, the petitioner who claimed herself to be a maid servant and the accident having occurred in the year 2009, the petitioner's notional income can safely be re-fixed at Rs.6,000/--per month. Accordingly, I re-fix the notional income of the petitioner at Rs.6,000/-per month. 17. In view of the re-fixation of the notional income of the petitioner, I hold that the petitioner is entitled for loss of earnings for a period of nine months at the rate of Rs.6,000/-per month. Consequently, the petitioner is entitled for enhancement of compensation under said head of claim “ loss of earnings' at Rs.54,000/-. 18. The Medical Board, as per Ext.X1 had certified that the petitioner had suffered a permanent disability at 24.9%. The Tribunal, after seeing the petitioner came to the conclusion that the petitioner had a disability of only 20%. 19. The Hon'ble Supreme Court in Union of India and another v. Talwinder Singh [ 2012 (5) SCC 480 ] has laid down the law that Courts should not ordinarily interfere with the opinion of experts. 20. The Tribunal, after seeing the petitioner came to the conclusion that the petitioner had a disability of only 20%. 19. The Hon'ble Supreme Court in Union of India and another v. Talwinder Singh [ 2012 (5) SCC 480 ] has laid down the law that Courts should not ordinarily interfere with the opinion of experts. 20. When the competent Medical Board, as per Ext.X1, after examining the petitioner assessed her disability at 24.9%, the Tribunal ought to have accepted the said assessment certified by the expert body, instead of scaling down the percentage of disability to 20% by guess work. In the said circumstances, I set aside the finding of the Tribunal that the petitioner suffers from only a disability of 20% instead of 24.9%. Due to the re-fixation of the permanent disability of the petitioner at 24.9% and her notional income at Rs.6,000/-, enhance the compensation under the head 'loss due to disability' at Rs.4,03,200/-instead of Rs.1,72,800/-as fixed by the Tribunal. 21. With respect to other heads of claim, namely, Transport to hospital, Clothing, Bystander expenses, Extra nourishment, Medical expenses, Pain and sufferings and Loss of amenities, I find that the Tribunal has awarded just and reasonable compensation. 22. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court and this Court in the aforecited decisions, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. Sl. No. Head of claim Amount awarded (in rupees) Amounts modified and recalculated by this Court 1. Loss of earnings 40,500 54000 2. Transport to hospital 3,000 3,000 3. Extra nourishment 3,000 3,000 4. Damages to clothings 1,000 1,000 5. Medical expenses 27,806 27,806 6. Bystander's expenses 19,000 19,000 7. Pain and sufferings 50,000 50,000 8. Compensation for loss of amenities 50,000 50,000 9. Compensation for continuing permanent disability 1,72,800 4,03,200 Total Rs.3,67,106 6,11,006 In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.2,43,900/-with interest at the rate of 7.5% per annum on the enhanced compensation from the date of petition till the date of realisation with proportionate costs. Compensation for continuing permanent disability 1,72,800 4,03,200 Total Rs.3,67,106 6,11,006 In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.2,43,900/-with interest at the rate of 7.5% per annum on the enhanced compensation from the date of petition till the date of realisation with proportionate costs. The 2nd respondent/Insurance Company shall deposit the additional compensation with interest and proportionte costs awarded in this appeal before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting the liability of the appellant/petitioner towards the balance court fee and legal benefit fund. The disbursement of enhanced compensation to the appellant/petitioner shall be done by the Tribunal, in accordance with law. It is made clear that the appellant/petitioner would not entitled for interest for a period of 363 days due to the delay in filing this appeal and as ordered by this court on 3.4.2019 in C.M.Appli.No.850/2014.