Rosamma Kurian vs Robin Xavier and Others

K. Ramakrishnan, J.—1. The claimant in O.P.(MV) No. 1815 of 2004 on the file of the Motor Accidents Claims Tribunal, Kottayam is the appellant herein. The claim petition was filed by the claimant for compensation for the personal injuries sustained by her in a motor vehicle accident occurred on 3.9.2003. She was travelling in a maruthi omni van driven by her husband, owned by the fourth respondent and insured by the fifth respondent and while it reached the place of occurrence, a mini lorry with No. KL-5/N-6388 driven by the first respondent, owned by the second respondent and insured by the third respondent, came from the opposite direction without observing the traffic rules, at a high speed and hit against the maruthi van and in that accident the appellant sustained severe injuries and her husband and grandson succumbed to the injuries sustained in the accident. She was aged 47 years and a housewife at the time of accident. She sustained severe injuries which resulted in permanent disability. She claimed a total compensation of Rs. 20,13,000/- on various heads.

Respondents 1 and 4 filed written statement. The second respondent remained absent. Respondents 3 and 5 also filed written statement admitting the insurance of the respective vehicles and alleging negligence against the drivers of the respective offending vehicles not insured with them and denying their liability. They have also contended that the amount claimed is exorbitant. Joint trial was allowed along with the claim petitions filed by other claimants, viz. O.P.(MV) Nos. 1929/2003, 1665/2004 and 1785/2004. The appellant herein was examined as PW1 and one witness was examined as PW2. Exts.A1 to A23 were marked on the side of the claimant. Ext. B1 driving licence of deceased K.J. Kurian, i.e. the husband of the appellant was also produced. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of both the vehicles and apportioned the negligence between the drivers of the mini lorry and omni van in the ratio 3:1. After considering the documentary evidence including the evidence regarding treatment in this case, the Tribunal awarded a total compensation of Rs. 5,36,000/- on various heads as follows:

The Tribunal directed respondents 3 and 5 to pay the amount in proportion to their liability. Dissatisfied with the quantum of compensation alone, the present appeal has been preferred by the appellant/claimant before the tribunal.

Heard Shri P.S. Appu, learned counsel appearing for the appellant and Smt. K.S. Santhi, learned counsel appearing for respondents 3 and 5.

Learned counsel for the appellant submitted that the court below was not justified in not awarding any amount under the head loss of earnings during the period of treatment, as even for a housewife a notional income ought to have been taken and awarded a reasonable amount under that head. Further, the tribunal has not considered the disability certificate and no amount was awarded under the head loss of earning capacity. The amounts awarded under the heads pain and suffering, loss of amenities in life, etc. are also on the lower side. So, learned counsel submitted that the appellant is entitled to an enhancement on all heads.

On the other hand, learned counsel for respondents 3 and 5, counsel appearing for the respective insurance companies submitted that the tribunal had liberally considered the claim and awarded a moderate, just and reasonable compensation including future medical expenses and attendant expenses, etc. and as such no enhancement is called for in this case.

Admittedly the appellant is a housewife aged 47 years at the time of accident. She had suffered segmented fracture humerus with radial nerve palsy (r), ulnar shaft fracture right, fracture tibia left and extensive comminuted fracture of nasal bone maxilla and mandible. She was treated as inpatient for 60 days in various hospitals and underwent several surgeries as well. It is seen from the award of the tribunal that she was undergoing treatment even at the time when she gave evidence as PW1.

It is true that as a housewife, it is very difficult to fix the monthly income of the appellant. In case of death the Supreme Court has taken a notional income of Rs. 3,000/- per month for assessing compensation under the head loss of dependency for legal heirs, as the monthly income of a housewife will have to be taken considering the monetary value of service to be rendered by her in the family. The same yardstick can be applied in this case also. Even assuming that she is not earning and no loss of earnings during the period of treatment as such can be quantified, due to the loss of service in the family, somebody will have to be engaged for that purpose and that could be the loss suffered by the family as well. So, considering these aspects, the tribunal ought to have awarded at least some reasonable amount under the head loss of earnings during the period of treatment. Taking a monthly income of Rs. 3,000/- and the period during which she could not attend the work and considering the nature of injuries sustained, we feel that 12 months can be taken as the period of treatment during which she could not do any work in the family. So, an amount of Rs. 36,000/- can be awarded under the head loss of earnings. We do so.

Ext. A18 disability certificate shows the following:

"Today I examined her and she has the following problems.

- Shortening 2 cm (L) leg. 3cm � thigh, 2cm � arm

- Inability in squatting

- Tenderness of � & (L) knee � elbow

- Grade IV power wrist & finger extension

- Sensory deficit dorsum of � hand, reduced grip strength � head.

Restriction of movements

� Shoulder - Terminal 30� abduction and 20� rotations

� Elbow - Terminal 20� extension & flexion

� Hip - Terminal 20� flexion and rotations

� Knee - Flexion up to 90� only

(L) Knee - Flexion up to 110� only

� Wrist - Terminal 15� dorsiflexion and palmar flexion X-Ray

� humerus Union of fracture humerus with 10� lateral angulation - implant in situ

X-Ray knee union of fracture femur with 20� anterolateral angulation implant in situ, joint space narrowing (moderate)

X-Ray (L) leg Union of fracture tibia with 10� lateral angulation

Based on the above mentioned clinico radiological findings she has a permanent partial functional disability of 28% (Twenty Eight percent) only according to Mc Bride scale, taking body as a whole."

Being a housewife, there cannot be any loss of earning capacity as such. But the decision of the Supreme Court on this aspect clearly laid down that a person who has suffered permanent disability, may suffer loss of earning capacity as a result of the permanent disability. In such cases his loss of earning capacity has to be calculated in terms of monetary value by taking into account the percentage of disability, his monthly income and suitable multiplier and compensation will have to be awarded under that head. Even in cases where there is permanent disability resulting in earning capacity, the same person will have to suffer some discomfort in his remaining period of life and some reasonable amount has to be awarded under the head loss of amenities in life as well. But the yardstick being overlapping for computing compensation under the head loss of earning capacity and loss of amenities in life, the same yardstick should not be taken for the purpose of awarding compensation under both heads in such cases. In cases where permanent disability resulting in loss of earning capacity is percentage and the multiplier is taken for awarding compensation under that head, then only a reasonable amount can be granted under the head loss of amenities in life and not the same amount again. But in a case where a person suffers permanent disability and it does not result in loss of earning capacity, then a fair and reasonable compensation has to be awarded under the head loss of amenities in life which is likely to be caused on account of the disability suffered by him/her which he or she will have to face for the remaining period of his/her life.

In this case, it is seen from the disability certificate that there is shortening of 2cm (L) leg, 3cm (r) thigh and 2cm (r) arm. She is having difficulty in squatting and there are restrictions of movement of right shoulder, elbow, hip, knee, wrist and also left knee. All these will have some impact on the appellant for the remaining period of her life and that will affect her amenities and comfort in life as well. She was aged only 47 years and she will have to live with this difficulty for the remaining period of her life. The Tribunal awarded only an amount of Rs. 50,000/- under the head compensation for loss of amenities and for permanent disability. So, considering these aspects, we enhance the same to Rs. 1,25,000/- thereby she will be getting an additional amount of Rs. 75,000/-. The Tribunal awarded only an amount of Rs. 30,000/- under the head pain and suffering. Considering the nature of extensive injuries sustained by her, the period of treatment and the nature of treatment, number of surgeries undergone, etc., the amount awarded appears to be on the lower side and we enhance the same to Rs. 50,000/- thereby the appellant will get an additional amount of Rs. 20,000/- under the head pain and suffering. The Tribunal had liberally considered all the other aspects and awarded just and reasonable compensation including compensation for future treatment and expenses for appointing bystander even after treatment. So, we are not inclined to enhance any amount under other heads.

Accordingly, the appellant is entitled to an additional compensation of Rs. 1,31,000/- which respondents 3 and 5 are liable to pay in the proportion fixed by the Tribunal, viz. 3 : 1 together with interest at 9% per annum from the date of petition till payment. Three months time is granted to the insurance company to deposit the amount. If the amount is deposited, the appellant is permitted to withdraw the same.

With the above modification of the impugned award of the Tribunal, the appeal is allowed in part and disposed of accordingly. The parties are directed to bear their respective costs in the appeal.