IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 MACA.No. 627 of 2006() ---------------------- OPMV.643/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- MEENAKSHI G.NAYAK, W/O. GIRIDHARA NAYAK, SHANTHI NIVAS, KARANDAKKAD, P.O. KASARGOD. BY ADV. . SRI.K.MOHANA KANNAN RESPONDENT(S): RESPONDENTS IN OP(MV): ------------------------------------- 1. K. BALAKRISHNA,S/O.SHANKAPPA GOWDA, SONAMGERI HOUSE, POST JALSURE, SULLIA TALUK. 2. JASLY D.SILVA, S/O. R.D.SILVA, DIVYAKRIPA, R.K. COMPOUND, ADIYAR, MANGALORE. 3. THE MANAGER, M/S. ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, CITY BRANCH, PAILANDS BUILDING, II FLOOR, P.M. RAO ROAD, MANGALORE. ADV. SRI.S.MAMMU FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.A.C.A.No.627 of 2006 -------------------------------------- Dated this the 25th day of November, 2008. JUDGMENT Thomas P.Joseph, J. Appellant, a house wife aged about 46 years at the relevant time met with a motor accident on 6.3.2004 and suffered serious injuries. She alleged that while she was attempting to board a bus, the offending bus driven by the first respondent in rash and negligent manner came from behind and hit her. She claimed Rs.6 lakhs as compensation. Learned Tribunal found that the accident occurred due to the rashness and negligence of the first respondent and awarded Rs.1,87,900/- as compensation. Appellant is aggrieved by the quantum of compensation and has come up in appeal. 2. Heard counsel for the appellant and contesting respondent. 3. Point for consideration is whether the appellant is entitled to get enhanced compensation. 4. The Point. MACA No.627/2006 2 Finding of the Tribunal regarding cause of accident having become final, what remained for consideration is only whether the appellant is entitled to get enhanced compensation. It is contended by the learned counsel that compensation awarded on all counts are low. It is also contended that the monthly income of the appellant fixed by the Tribunal is low. 5. According to the appellant, she was helping her husband in his business and earning Rs.8,000/- per month. Tribunal was not inclined to accept that claim and fixed the notional monthly income of the appellant at Rs.1,500/-. Appellant was aged about 46 years at the time of accident. Even if it is assumed that there is no evidence to show that the appellant was helping her husband in his business and was getting monthly income as claimed, her services to the family cannot be ignored and has to be valued in terms of money for the purpose of assessment of compensation. Considering the age of the appellant, the extent of service she was doing to her family and also taking into account the wages payable even to unskilled labourers in Kerala during the relevant time, we are inclined to fix the value of her services to the family at Rs.2,000/- per month. MACA No.627/2006 3 6. Ext.A2 is the copy of the wound certificate. Appellant suffered the following injuries:- “1. 15 cm. x 17 cm. deglaring wound over the medial aspect of right side. 2. A full crush shine flap avulsion from the lateral aspect of doresum right foot, tendons and bones exposed. 3. Fracture of medial and lateral malleolus fractures right side. 4. Fracture of tibia right side.” It is revealed from the evidence that appellant underwent inpatient treatment for 70 days. Considering the nature of injuries and period of treatment, Tribunal awarded compensation towards loss of earning for a period of four months ( at the rate of Rs.1,500/- per month). We have found the notional monthly income of the appellant as Rs.2,000/-. Hence at that rate, appellant is entitled to get MACA No.627/2006 4 compensation towards loss of earnings for four months which brings the amount payable to Rs.8,000/- (Rs.2,000 x 4) and less the sum of Rs.6,000/- already awarded by the Tribunal, appellant will get a further sum of Rs.2,000/- on that count. 7. For treatment expenses, Tribunal awarded Rs.1,11,700/- taking into account Ext.A5 series, medical bills. Counsel contended that even after filing the application for compensation appellant had to undergo treatment and in support of that claim, produced Annexure-A3. In Annexure-A3 issued from KMC Hospital, Mangalore, it is stated that appellant underwent treatment in that hospital since 6.3.2002 for open fracture, dislocated right ankle with degloving injury right lower leg and that skin grafting was done. Annexure-A3 certificate was issued on 6.9.2006. Annexure-A2 is the discharge summary issued from that hospital. There also, details of the treatment are given. Considering these aspects and also taking into account the fact that the entire treatment expenses may not have been reflected by the bills produced, we are inclined to award a further sum of Rs.5,000/- towards treatment expenses. MACA No.627/2006 5 8. For pain and suffering, Tribunal awarded Rs.10,000/- as compensation. We found that appellant sustained serious injuries including fracture and underwent prolonged inpatient treatment (for about 70 days). Considering the nature of injuries and the period of treatment, we are inclined to think that compensation awarded for pain and suffering is on the lower side and hence, a further sum of Rs.5,000/- is awarded on that count. 9. So far as disability and loss of earning power are concerned, in Ext.X2 issued by the Medical Board the percentage of disability for the whole body is certified as 25% which the Tribunal accepted. Considering the age of the appellant, 13 was taken as multiplier which we find no reason to interfere and taking the notional monthly income as Rs.1,500/-, Rs .58,500/- was awarded as compensation. We have fixed the notional monthly income of the appellant as Rs.2,000/-. Hence appellant is entitled to get compensation for disability and loss of earning power on that basis ((2,000x12x13x25)/100) which comes to Rs.78,000/- and less Rs.58,500/- already awarded by the Tribunal, appellant will get Rs.19,500/- more on that count. 10. Though it is contended by the learned counsel that compensation awarded on other counts are also low, on going through the award and MACA No.627/2006 6 considering the evidence as well as all the relevant circumstances and factors we are not persuaded to accept that contention. Thus, the additional compensation payable to the appellant is Rs.31,500/-. That amount will carry interest at the rate of 7.5% per annum from the date of application till realization. This Appeal therefore, is allowed in part. Over and above the compensation awarded by the Tribunal, appellant is allowed to realise a further sum of Rs.31,500/- (Rupees Thirtyone thousand and five hundred only) with 7.5% interest per annum from date of application till realisation from respondents 1 to 3, jointly and severally. Third respondent being the insurer is directed to deposit that amount in the Tribunal and on such deposit, appellant is permitted to withdraw the same. J.B.KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. cks