Partly allowed

Mansoor .C. v. C.Aslam

Kerala HC15 Jun 2010MACA/213/2004

Case brief

AI extract

What is this about?

In an appeal against a Motor Accidents Claims Tribunal award, the High Court affirmed the driver's liability but enhanced the compensation awarded to the injured claimant. The court revised the assessment of loss of earning based on the claimant's actual income and granted additional relief for loss of amenities.

What did the court decide?

Additional compensation of Rs. 34,300/- granted for disability and loss of amenities; award modified; third respondent to deposit amount.

Mansoor .C. Vs C.Aslam — Motor Accident Claims | Kerala HC (2010)

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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 A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI

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TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932

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MACA.No. 213 of 2004()

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---------------------OPMV.777/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD ....................

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APPELLANT(S): APPELLANT/PETITIONER:

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-----------------------------------

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MANSOOR. C., S/O. E.K. HAMSA HAJI, BAITHUL RAHATH, NARAYANA NAGARAM, BADAGARA AMSOM DESOM, POST BADAGARA, KOZHIKODE DISTRICT.

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BY ADV. SRI.P.K.MUHAMMED SRI.P.K.MUHAMMED

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RESPONDENT(S)/RESPONDENTS/SUPPL. RESPONDENTS

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--------------1. C. ASLAM, S/O. ABDULRAHIMAN KUTTY, PAROR KANDIYIL HOUSE, NARAYANA NAGARAM, BADAGARA AMSOM DESOM, POST BADAGARA, KOZHIKODE DISTRICT.

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2. GAFOOR. K.U., S/O. UMMER, KARUDANKANDY HOUSE, POST PUTHANKUNNU, S. BATHERY, WYNAD.

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3. THE BRANCH MANAGER, ORIENTAL INSURANCE CO.LTD., CITY BRANCH OFFICE, SOUTH BAZAR, KANNUR-670 002.

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4. K. ABDULKHADER, S/O. ANDARU, RESIDING AT KARINAGAPPALAM HOUSE, NEKRAJE VILLAGE, NEKRAJE, KASARAGOD TALUK.

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5. MR. P. RAGHAVAN, S/O. KANDANKUNHI, CHEDIKANA HOUSE, ULLODI, KASARAGOD.

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6. THE BRANCH MANAGER, NATIONAL INSURANCE CO.LTD., BRANCH OFFICE (571101) BENDICHAL SHOPPING ARCADE, M.G. ROAD, KASARAGOD.

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ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R6 SRI.P.JACOB MATHEW FOR R6 SRI.A.R.GEORGE FOR R3

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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A.K.BASHEER & P.Q.BARKATH ALI, JJ.

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M.A.C.A.No.213 OF 2004

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Dated this the 15^th day of June, 2010

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JUDGMENT

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Barkath Ali, J.

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In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.777/1998 of Motor Accidents Claims Tribunal, Kasargod challenges the judgment and award of the Tribunal dated July 31, 2003 awarding a compensation of Rs. 1,56,900/- for the

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loss caused to him on account of the injuries sustained by him in a motor accident.

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2. The facts leading to this appeal in brief are these :

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The claimant was aged 28 the time of the accident and used to earn Rs. 25,000/- per month as a Sales Manager in a private firm. On July 25, 1998 at about 5.p.m., the claimant was travelling as a passenger in a Maruthi Car bearing Reg.No.KL 12/8708 from Vadakara to Mangalore which was driven by the first respondent. When they reached at Mailatty near Poinachi in National Highway 17, it collided head on with a lorry bearing Reg.No.14/6469 . The claimant sustained serious injuries. According to the claimant, accident occurred

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MACA.No.213/04 2

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due to the rash and negligent driving of the offending Maruthi car by first respondent. First respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending Maruthi car are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 10 lakhs.

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Respondents 1 and 2, the driver and owner of the offending car filed a joint written statement admitting the accident, but contended that the accident occurred due to the negligence on the part of the driver of the lorry. The third respondent, the insurer of the offending Maruthi Car filed a written statement admitting the policy.

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In the light of the contentions raised by respondents 1 to 3, the driver, owner and the insurer of the lorry involved in the accident were impleaded as additional respondents 4 to 6 in the O.P. Respondents 4 and 5, the driver and the owner of the lorry remained absent before the Tribunal. The 6^th respondent, the insurer of the lorry filed a written statement admitting the policy, but contended that the accident occurred due to the negligence on the part of the driver of the Maruthi Car.

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This O.P. was jointly tried along with O.P.(MV)

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MACA.No.213/04 3

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No.721/1998, filed by another injured passenger and a common award

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was passed. PW1 was examined and Exts.A1 to A14 series and Ext.X1 disability certificate of the claimant were marked on the side of the claimant before the Tribunal. No evidence was adduced by contesting respondents. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending Maruthi Car by first respondent and awarded a compensation of Rs. 1,56,900/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal.

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Heard the counsel for the appellant/claimant and the counsel for the third respondent/Insurance Company.

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The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the first respondent is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimant is entitled to any enhanced compensation.

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The claimant sustained the following injuries as revealed

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MACA.No.213/04

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from Ext.A3, the copy of the wound certificate and Ext.A4, discharge

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summary issued from the hospital.

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Lacerated wound over the left eyebrow 2 x 1 cm.

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Laceration over the lower lip on the right side 1.5 cm. x ½ cm.

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Lacerated wound of 3x 3 cms. on the right forearm middle 1/3^rd .

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Degloving injury to left forearm on the dorsal aspect.

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Deformity over the right thigh with contusion.

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Swelling over the left knee with tenderness

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Swelling and tenderness over the left ankle.

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Lacerated wound of 5 x 2 cm. over the left leg.

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X - ray revealed fracture of radius of left forearm with dislocation.

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He was admitted in the hospital on July 25, 1998 and was

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discharged on August 16, 1998. Ext.A8, the certificate of disability issued by the Doctor shows that claimant has now a permanent disability of 30%. Ext.X1, the certificate issued by the District Medical Board shows that he has a permanent disability of 25%.

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The Tribunal awarded a total compensation of

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Rs.1,56,900/-. The break up of the compensation awarded is as under :

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Loss of earning	- Rs. 7,200/-
Extra nourishment	- Rs. 2,500/-
Treatment expenses	- Rs.35,000/-
Pain and suffering	- Rs.15,000/-
Disability	- Rs.97,200/-

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MACA.No.213/04 5

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Counsel for the claimant sought enhancement of the compensation for the disability caused, loss of amenities and enjoyment of life and for the disfigurement caused.

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The Tribunal took the monthly income of the claimant as Rs. 1800/- and adopted a multiplier of 18 and accepted the percentage of disability as 25% as mentioned in Ext.X1 and awarded Rs. 97,200/for the disability caused. The claimant was aged 28 at the time of the accident and was working as a Sales Manager in a private firm earning Rs. 25,000/- per month as seen from Ext.A9 and Ext.A10. Taking into consideration the above aspect, we feel that his monthly income can be reasonably fixed at Rs. 2,250/-. The multiplier adopted by the Tribunal as 18 and the percentage of disability as 25% as assessed by the Medical Board in Ext.X1 are not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs.1,21,500/- ( 25% x 2250 x 12 x 18). Thus on this count, the claimant is entitled to an additional compensation of Rs. 24,300/-.

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No compensation was awarded for the loss of amenities and enjoyment of life. The Tribunal has noticed that his left lower arm is disfigured and there were scar marks of the operation on the same. His

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left foot was also swelling. Taking into consideration all these aspects, we feel that for the loss of amenities and enjoyment of life, a compensation of Rs. 10,000/- would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same.

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In the result, the claimant is entitled to an additional compensation of Rs. 34,300/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to the above extent.

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The Appeal is disposed of as found above.

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A.K.BASHEER, JUDGE

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P.Q.BARKATH ALI, JUDGE

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sv.

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MACA.No.213/04 7

Mansoor .C. v. C.Aslam

Case brief

What is this about?

What did the court decide?

Mansoor .C. v. C.Aslam

Case brief

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