, the High Court of Kerala allowed appeals against Motor Accidents Claims Tribunal awards. It enhanced compensation for two claimants by correcting the assessment of disability percentage from 5% to 8% and recalculating loss of earnings based on Rs. 2,000/month income, granting additional sums to both appellants.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI
FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932
MACA.No. 720 of 2004()
---------------------OPMV.323/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA
APPELLANT(S): APPELLANT/PETITIONER IN M.V(OP):
----------------------------------------------
KOCHAPPAN, S/O. ANTHONY, KOLEKUNNIL HOUSE, INCHAKUNDU, MATTATHUR VILLAGE, MUKUNDAPURAM TALUK.
BY ADV. SRI.P.V.BALAKRISHNAN
RESPONDENT(S): RESPONDENTS IN M.V(OP):
--------------------------------------
1. SIVAN, S/O. VELAYUDHAN, CHINNANGAN HOUSE, PUTHANOLY DESOM, MATTATHUR VILLAGE, MUKUNDAPURAM TALUK.
2. P.I. IBRAHIM, S/O. BAVA, PALLICHANKUDY HOUSE, THRIKKAKARA, KAKKANAD, P.O. THENGODU.
3. THE BRANCH MANAGER, ORIENTAL INSURANCE CO. LTD., EDAPPALLY BRANCH, EBENEXER GARDEN, 1ST FLOOR, NEAR GOVT.H.S., EDAPPALLY, COCHIN.
ADV. SRI.SAJU J.VALLYARA FOR R1 SRI.VPK.PANICKER FOR R3
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18/06/2010 ALONG WITH M.A.C.A.NO.722/04, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
M.A.C.A.Nos.720 & 722 OF 2004
JUDGMENT
Barkath Ali, J.
Both these appeals under Section 173 of Motor Vehicles Act arise out of a common award passed by the Motor Accidents Claims Tribunal, Irinjalakkuda dated March 10, 2003 in O.P.(MV) Nos.320/1998 and 323/1998. In M.A.C.A.No.720/04, the claimant challenges the judgment and award of the Tribunal in O.P.(MV) No.323/1998. In M.A.C.A.No.722/2004, the claimant challenges the judgment and award of the Tribunal in O.P.(MV)No.320/1998.
On May 7, 1997 at about 5.30 p.m., the claimant in O.P.(MV) No.323/1998 was riding his motor cycle along Kodali-Mupliyam public road . The claimant in O.P.(MV)No.320/1998 was pillion riding on the motor cycle. When they reached at Pathilkulangara, a lorry bearing Reg.No.KRK 4462 came at a high speed from the opposite side and dashed against the motor cycle of the claimants. Claimants
MACA.Nos.720/04& 722/04 2
sustained serious injures. According to the claimants, the accident occurred due to the negligence of the driver of the lorry, the first respondent. First respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending lorry are jointly and severally liable to pay compensation to the claimants.
MACA.Nos.720/04& 722/04 3
On an appreciation of evidence, the Tribunal awarded a compensation
of Rs. 50,000/- in favour of the claimant in O.P.(MV)No.320/1998 and Rs. 35,000/- in favour of the claimant in O.P.(MV)No.323/1998 with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal.
MACA.Nos.720/04& 722/04 4
PW2 before the Tribunal. He sustained fracture of shaft of femur right
as seen from Ext.A12, the treatment-cum-discharge certificate issued from the hospital. Open reduction and internal fixation were done. Ext.A13, the certificate of disability, shows that he has suffered a disability of 16%. The doctor who issued the certificates was examined as PW3.
M.A.C.A.No.722/1998
compensation of Rs. 50,000/-. The break up of the compensation
awarded is as under :
| Loss of earnings | - Rs. 9,000/- |
|---|---|
| Transportation expenses | - Rs. 1,500/- |
| Medical expenses | - Rs.13,500/- |
| Bystanders expenses | - Rs. 1,000/- |
| Pain and suffering | - Rs. 6,000/- |
| Disability | - Rs. 14,400/- |
| Loss of amenities and | |
| enjoyment of life | - Rs. 4,600/- |
compensation for the disability caused.
MACA.Nos.720/04& 722/04 5
Rs. 1500/- and took the multiplier of 16 and accepted the percentage of disability as 5% and awarded Rs. 14,400/- for the disability caused. Ext.A11, the certificate issued by the Orthopaedic Surgeon attached to St.James Hospital, Chalakudy and Ext.A13 disability certificate shows that the claimant as a permanent disability of 16%. But the Tribunal took the percentage as only 5%. Taking into consideration the nature of the injury sustained, we feel that the percentage of disability can be assessed at 8%. Claimant as PW2 testified that he was a Mason earning Rs.4,000/- per month. In the absence of any evidence regarding the income of the claimant, we feel that his monthly income can be reasonably fixed at Rs. 2,000/-. The multiplier adopted by the Tribunal as 16 is not seriously challenged. Thus for the disability caused, the claimant is entitled to a compensation of Rs. 30720/( 2,000x12x16x8%). Thus on this count, the claimant is entitled to an additional compensation of Rs.16,320/-.
MACA.Nos.720/04& 722/04
6
of Rs. 12,000/- towards loss of earnings. Thus on this count, the
claimant is entitled to an additional compensation of Rs. 3,000/-.
M.A.C.A.No.720/1998
compensation of Rs. 35,000/-. The break up of the compensation
awarded is as under :
| Loss of earnings | - Rs. 9,000/- |
|---|---|
| Transportation expenses | - Rs. 1,000/- |
| Medical expenses | - Rs. 8,200/- |
| Bystanders expenses | - Rs. 500/- |
| Pain and suffering | - Rs. 4,000/- |
| Disability | - Rs. 9,900/- |
| Loss of amenities and | |
| enjoyment of life | - Rs. 2,400/- |
compensation for the disability caused.
MACA.Nos.720/04& 722/04 7
injury sustained, we feel that the percentage of disability can be assessed at 8%. Claimant as PW1 testified that he was a Mason earning Rs.4,000/- per month. In the absence of any evidence regarding the income of the claimant, we feel that his monthly income can be reasonably fixed at Rs. 2,000/-. The multiplier adopted by the Tribunal as 11 is not seriously challenged. Thus for the disability caused, the claimant is entitled to a compensation of Rs. 21,120/( 2,000x12x11x8%). Thus on this count, the claimant is entitled to an additional compensation of Rs.11,220/-.
MACA.Nos.720/04& 722/04 8
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 the copy of this judgment. The award of Tribunal is modified to the above extent.
The Appeals are disposed of in the above terms.
A.K.BASHEER, JUDGE
P.Q.BARKATH ALI, JUDGE
sv.
MACA.Nos.720/04& 722/04 9
2 issues framed by the court
Whether the appellants are entitled to enhanced compensation given the injuries sustained.
Whether the Tribunal erred in underestimating the percentage of permanent disability and the monthly income of claimants.
1 provisions across 1 enactments
Kochappan, S/o. Anthony
Sivan, S/o. Velayudhan
P.I. Ibrahim, S/o. Bava
The Branch Manager, Oriental Insurance Co. Ltd.
A.K. Basheer
P.Q. Barkath Ali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
