IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 627 of 2006()
1. MEENAKSHI G.NAYAK, W/O. GIRIDHARA NAYAK,
... Petitioner
Vs
1. K. BALAKRISHNA,S/O.SHANKAPPA GOWDA,
... Respondent
2. JASLY D.SILVA, S/O. R.D.SILVA,
3. THE MANAGER,
For Petitioner :.
For Respondent :SRI.S.MAMMU
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :25/11/2008
O R D E R
J.B.KOSHY & THOMAS P. JOSEPH, JJ.
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M.A.C.A.No.627 of 2006
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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.
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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.
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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
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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.
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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
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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.
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