Partly allowed

Sofiya v. Rejila v.

Kerala HC2 Jul 2021MACA/2277/2015

Case brief

AI extract

What is this about?

Appellant appeals against Motor Accident Claims Tribunal award enhancing her compensation for injuries sustained in a 2005 autorickshaw accident. The court recalculated loss of earnings, disability percentage, and enhanced compensation for pain and sufferings and loss of amenities.

What did the court decide?

Enhanced compensation of Rs.66,860/- (over and above awarded amount) with 9% interest granted against the insurance company.

Sofiya Vs Rejila v. — Money Laundering | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE BADHARUDEEN A.

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FRIDAY, THE 2^ND DAY OF JULY 2021 / 11TH ASHADHA, 1943

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MACA NO. 2277 OF 2015

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AGAINST THE AWARD DATED 02.03.2015 IN OPMV 467/2006 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE, KOZHIKODE

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APPELLANT/PETITIONER:

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SOFIYA

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D/O. MUHAMMED, KUVAPPATTA HOUSE, P.O NARIKKUNI, KAVUMPOYIL, KOZHIKODE DISTRICT

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BY ADV SRI.A.V.M.SALAHUDDEEN

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RESPONDENTS/RESPONDENTS:

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1 RAJILA V. D/O. CHOYI, VEYATTUMMAL HOUSE, NARIKKUNI AMSOM DESOM,NARIKKUNI P.O, KOZHIKODE DISTRICT 673 015

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2 NATIONAL INSURANCE CO.LTD. NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE 673 001

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BY ADV SMT.RAJI T.BHASKAR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA NO. 2277 OF 2015

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A.BADHARUDEEN, J.

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===========================

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M.A.C.A.No.2277 of 2015

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===========================

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Dated this the 2^nd day of July, 2021

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JUDGMENT

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The petitioner in O.P. No.467 of 2006 on the file of the Principal Motor Accident Claims Tribunal, Kozhikode is the appellant herein. The challenge is against the award dated 02.03.2015 in the above case. The respondents herein are the respondents before the Tribunal.

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I would like to refer the parties in this appeal as to their status before the Tribunal for easy reference.

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Summary of the case.

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The petitioner filed the original petition claiming compensation

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for the injuries sustained to her in a road traffic accident on 15.09.2005 at about 2.30 PM while she was travelling in an autorickshaw from Narikkuni to Avilora. The specific allegation is that the autorickshaw overturned causing injuries to the petitioner. She was treated at Medical College Hospital, Kozhikode as inpatient for several days. Accident occurred due to the negligence on the side of the 1^st respondent who was the RC owner cum driver of the offending autorickshaw at the time of the accident. The Tribunal by the impugned award, directed the 2^nd respondent insurance company to pay a total compensation of Rs.43,500/- (Rupees forty three

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MACA NO. 2277 OF 2015

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thousand and five hundred only) with interest at the rate of 9% per annum from the date of petition till the realisation.

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Heard both sides.

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The learned counsel for the petitioner is aggrieved in the matter of fixation of income of the petitioner as Rs.1500/- as against her claim of 3000/-. She submitted further that as per the decisions in Ramachandrappa v. Manager, Royal Sundaram Alliance [(2011) 13 SCC 236] and Syed Saidq and others v. Divisional Manager, United India Insurance Co.Ltd. [(2014) 2 SCC 735] , in 2004 the Hon'ble Supreme Court held that Rs.4,500/- could be fixed as the notional i ncome. As such the income of the petitioner required to be refixed as Rs.4,500/-. While appreciating this contention, a distinction is to be drawn. To put it otherwise, while refixing the monthly income of the petitioner, she claimed Rs.3000/- as her income in the petition. Thus the crucial question is as to whether a claimant could be granted income in excess of his claim. In this context, I would like to observe that when a person admits his income as Rs.3000/-, it is neither fair nor proper for the Tribunal or the Appellate Authority to fix income more than what has been admitted rather claimed. The learned counsel for the insurance company also not opposed the same. Therefore, I refix the monthly income of the petitioner for the purpose of computing compensation as Rs.3000/-. In view of matter, the loss of earnings for 3 months granted by the Tribunal requires to be increased.

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MACA NO. 2277 OF 2015

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Therefore, the petitioner would get total Rs.9000/- as loss of earnings out of which Rs.4500/- was granted by the Tribunal and therefore, the petitioner will get Rs.4,500/- more under the head loss of earnings.

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Coming to the next challenge the petitioner is aggrieved in the matter of disability taken by the Tribunal as 6% as against 16% shown in Ext.C1 disability certificate issued by the Medical Board of Medical College Hospital, Kozhikode. In para No.11 of the award, the Tribunal discussed the issue of disability and held that Ext.C1 doesn’t suggest functional disability. In view of the matter, the Tribunal fixed disability as 6% alone.

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When considering the injuries sustained by the petitioner including surg ery & K wire fixat ion and its subsequent removal, 16% disability assessed by the Medical Board found to be on higher side, by the Tribunal and thereby the disability was reduced to 6%. Having considered the injuries sustained as stated in Ext.A4 and consequential treatment, I am inclined to refix disability at 10% as against 15% claimed and 6% fixed by the Tribunal. Consequently disability income is recalculated as

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3000x12x18 x10/100 = Rs.64,800/-.

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Learned counsel for the petitioner is aggrieved in the matter of inadequacy of compensation under the head pain and sufferings also. Going by the award, Rs.10,000/- alone was granted as pain and sufferings though the petitioner underwent inpatient treatment for 24 days and she was subjected

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MACA NO. 2277 OF 2015

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to surgery initially and again for implant removal. Therefore, I am inclined to increase the compensation under the head pain and sufferings by Rs.10,000/- more. Under the head loss of amenities, the Tribunal granted Rs.3000/- and I am inclined to raise the amount as Rs.10,000/-. Thus the

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petitioner is entitled to get an additional compensation as tabulated below:

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Item No.	Head of claim	Amount awarded by the Tribunal (in rupees)	Amount modified by this Court (in rupees)	Amoun enhan this Co (in rup	t ced by urt ees)
1	Loss of earnings	4,500/-	9000/-	4,500/- four and hundre	(Rupees thousand five d only)
2	Transport to hospital	300/-	-	-
3.	Damage to clothings and articles	200/-	-	-
4	Extra nourishment	5,00/-	-	-
5	Bystander’s expenses	2,400/-	-	-
6	Treatment expenses	2,830/-	-	-
7	Pain and sufferings	10,000/-	20,000/-	10,000 (Rupe thousa	/- es ten nd only)
8	Loss of future earning power	19,440/-	64,800/-	45,360 (Rupe five three and six	/- es forty thousand hundred ty only)
9	Loss of amenities	3,000/-	10,000/-	7,000/- seven only)	(Rupees thousand
	Total	43,170/-	1,03,800/-	66,860 (Rupe two eight and six	/- es sixty thousand hundred ty only)

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MACA NO. 2277 OF 2015

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Thus the appeal is allowed in part, by enhancing compensation to the tune of Rs.66,860/- (Rupees sixty six thousand eight hundred and sixty only) with interest at the rate of 9% per annum from the date of claim petition till the date of realisation on the enhanced compensation with proportionate costs. The 2^nd respondent insurance company shall deposit the enhanced compensation awarded in this appeal before the Tribunal together with interest and proportionate costs within a period of two moths from the date of receipt of a certified copy of this judgment. On deposit the petitioner can realise the same forthwith.

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Sd/A. BADHARUDEEN JUDGE

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scs

Sofiya v. Rejila v.

Case brief

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Sofiya v. Rejila v.

Case brief

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