Allowed

Smt.Usha v. P R Daison

Kerala HC16 Dec 2021MACA/471/2013

Case brief

AI extract

What is this about?

In a motor accident claim appeal, the High Court of Kerala allowed the appeal, setting aside the Tribunal's assessment of contributory negligence, disability percentage, and income. The Court awarded additional compensation of Rs.1,93,980/- including interest.

What did the court decide?

Appellant awarded additional compensation of Rs.1,93,980/- with interest at 9% per annum from the date of filing of the claim petition.

Smt.Usha Vs P R Daison — Motor Accident Claims | Kerala HC (2021)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE T.R.RAVI

¶4

THURSDAY, THE 16^TH DAY OF DECEMBER 2021 / 25TH AGRAHAYANA, 1943

¶5

MACA NO. 471 OF 2013

¶6

AGAINST THE AWARD IN OPMV 2699/2005 OF MOTOR ACCIDENT CLAIMS

¶7

TRIBUNAL, TRICHUR

¶8

APPELLANT/PETITIONER:

¶9

SMT.USHA W/O.VIJAYA KUMAR, RESIDING AT ADATT HOUSE, P.O.ADAT, THRISSUR DISTRICT.

¶10

BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD

¶11

RESPONDENTS/RESPONDENTS:

¶12

1 P.R.DAISON RESIDING AT X/303, AKKARAPATTY BUILDING, SOUTH BAZAR JUNCTION, THRISSUR-680001.

¶13

2 VIJAYA KUMAR S/O.MADHAVAN, RESIDING AT ADAT HOUSE, P.O.ADATT, THRISSUR-680554.

¶14

3 THE UNITED INDIA INSURANCE COMPANY LIMITED KURUPPAM ROAD, THRISSUR-680001.

¶15

R3 BY ADV SRI JOHN JOSEPH VETTIKKAD ADV SRI.M.A.AUGUSTINE

¶16

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 1.10.2021, THE COURT ON 16.12.2021 DELIVERED THE FOLLOWING:

¶17

M.A.C.A. No.471 of 2013

¶18

¶19

T.R. RAVI, J.

¶20

M.A.C.A.No.471 of 2013

¶21

Dated this the 16^th day of December, 2021

¶22

JUDGMENT

¶23

The appellant's husband, while travelling as a pillion rider in a motor cycle on 29.9.2005, fell down from the motor cycle due to negligent driving and got seriously injured. She was taken to Amala Hospital, Thrissur, and thereafter to Jubilee Mission Hospital, Thrissur where she was treated for her injuries. She suffered a fracture of the skull and the Assistant Professor, Neurosurgery, Medical College, assessed 22% disability. She claimed that she was working as a Tailor and earning Rs.6,000/- per month. In the claim petition filed by the appellant, the Tribunal fixed a notional income of Rs.4,000/- per month and scaled down the disability to 20% and awarded a compensation of Rs.2,64,200/-. The appeal has been filed claiming enhanced compensation.

¶24

Heard the counsel for the appellant and the respondents.

¶25

The first contention of the counsel for the appellant is that

¶26

the Tribunal went wrong in fixing 20% contributory negligence on the part of the appellant for the sole reason that she did not wear a helmet. A Division Bench of this Court in the decision in Jose P.J.

¶27

M.A.C.A. No.471 of 2013

¶28

¶29

and others v. Niyas and others reported in [2016 (1) KHC 485] has categorically held that not wearing a helmet may be an offence under the Motor Vehicles Act but it cannot be taken as a ground to fix contributory negligence on the part of the rider. There cannot be a different yardstick when it comes to a pillion rider like the appellant. The contention of the appellant is hence justified.

¶30

The next ground raised by the appellant is that for no reason the disability was scaled down to 20% from 22%. In fact the doctor was examined as PW1 before the Tribunal. It can be seen from the evidence that the appellant had suffered a head injury, fracture of right temporal bone, a lacerated wound in the occipital region and scalp, frontal contusion and left parietal sub arachnoid hemorrhage. Ext.A9 disability certificate shows 22% disability. It shows that her higher mental functions are affected, that her cranial nerve examination reveals visual impairment and sensory blunding over right frontotemporal region. She was treated as an inpatient for 30 days. The Tribunal has not stated any reason to scale down the disability to 20% and the finding in that regard has necessarily to be set aside.

¶31

The next contention put forward by the counsel for the appellant is that the Tribunal went wrong in fixing the notional monthly income as Rs.4,000/-. The case of the appellant is that she is

¶32

M.A.C.A. No.471 of 2013

¶33

¶34

a Tailor. Ext.A12 issued by the All Kerala Tailors Association will show that the appellant is a member of the Tailors Welfare Fund with membership No.TCR20778. Ext.A13 is the certificate issued by the Department of Technical Education, Kerala, showing that the appellant had passed the Kerala Government Technical Examination in Tailoring, Embroidery and Needlework (Lower) in the year 1990. Ext.A14 will show that the appellant has also studied Electric Embroidery in the year 1993. It can thus be seen that at the time of the accident, the appellant had at least 15 years experience as a Tailor. Ext.A15 will show that the appellant had availed of a tailoring loan from the State Bank of India in 2001 and there was regular repayment in the loan account and that it was closed in June, 2006. In the light of the evidence on record, there is no reason not to fix the monthly income at Rs.6,000/- which was claimed in the claim petition which is very reasonable. Going by the yardstick in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd., reported in [AIR 2011 SC 2951] , a coolie in 2005 would have been earning Rs.5,000/-. The Tribunal took the age of the appellant at the time of the accident as 39. It is contended that the age was 34. The Tribunal had however adopted a multiplier of 18. Even if the age is taken as 34, the multiplier to be adopted should have been 16 and not 18. The amounts awarded under the heads

¶35

M.A.C.A. No.471 of 2013

¶36

¶37

permanent disability and loss of earnings have to be modified.

¶38

The counsel for the appellant next submitted that the Tribunal did not award any amount towards extra nourishment and damage to clothing and amounts awarded under the heads pain and suffering and loss of amenities are very less. The appellant was in hospital for 30 days. She is to be awarded extra nourishment at Rs.150/- per day for the 30 days, which comes to Rs.4,500/-. A nominal sum of Rs.1,000/- is awarded towards damage to clothing. Having due regard to the nature of the injuries and the permanent disability and the long hospitalisation, the Tribunal should have awarded a sum of Rs.40,000/- towards pain and suffering and a like sum towards loss of amenities.

¶39

After deducting the amounts awarded by the Tribunal, the appellant is entitled to additional compensation of Rs.8,000/- (24000-16000) under the head loss of earnings, Rs.22,000/- (40000-18000) under the head pain and suffering, and Rs.25,000/- (40000-15000) under the head loss of amenities. The appellant is entitled to a sum of Rs.2,53,440/- (6000x12x16x22%) towards compensation for permanent disability. After deducting the amount of Rs.1,72,800/- awarded by the Tribunal, the appellant will be entitled to an additional compensation of Rs.80,640/- under that head. The appellant will also be entitled to a sum of Rs.4,500/- towards extra

¶40

M.A.C.A. No.471 of 2013

¶41

¶42

nourishment and Rs.1,000/- towards damage to clothing.

¶43

In the result, the appeal is allowed. The appellants are awarded additional compensation of Rs.1,41,140/- (Rupees One Lakh Forty One Thousand One Hundred and Forty only) with interest at the rate of 9% per annum from the date of filing of the claim petition (19.11.2005) till the date of realisation, with proportionate costs. The appeal was filed with a delay of 117 days. By order dated 09.03.2021, this Court condoned the delay in filing the appeal on condition that the appellants will not be entitled to interest on the enhanced compensation which may be awarded by this Court for the period of 117 days. The interest payable on the enhanced compensation shall be hence excluding the period of 117 days. The 3rd respondent insurer shall deposit the additional compensation granted in this appeal along with the interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the appellant is liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellant shall be

¶44

in accordance with law.

¶45

Sd/- T.R. RAVI JUDGE

¶46

dsn

¶47

M.A.C.A. No.471 of 2013

¶48

¶49

The judgment dated 16.12.2021 in MACA 471/2013 stands corrected as follows as per order dated 23.3.2022 in R.P.252/2022 in MACA 471/2013.

¶50

(i) The operative portion of the judgment dated 16.12.2021 in MACA 471/2013 is modified by holding that the appellant is awarded an additional compensation of Rs.1,93,980/-. Rest of judgment will remain the same.

¶51

Sd/-

¶52

Deputy Registrar

Smt.Usha v. P R Daison

Case brief

What is this about?

What did the court decide?

Smt.Usha v. P R Daison

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Suresh.S., Vs State of Kerala

Mohammed Sinan (Minor) Vs the Oriental Insurance Co. Ltd.

Asharafali Vs Raman Alias Raman Master

The Oriental Insurance Company Limited Vs Sunitha

Sunitha Vs Hema v.G., Managing Partner

Bimi Vs Rainalad.P.Perera