Allowed

Sivan @ Binu v. Omana

Kerala HC11 Jun 2010MACA/734/2003

Case brief

AI extract

What is this about?

An appeal against the Motor Accidents Claims Tribunal award. The Court accepted a disability certificate issued by a Medical College Hospital confirming 5% disability. Upon recalculating compensation based on this finding and the correct multiplier, the Court directed the insurer to deposit an additional amount to the claimant.

What did the court decide?

Tribunal award modified; insurer directed to deposit additional compensation of Rs.15,400 with interest.

Sivan @ Binu Vs Omana — 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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FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932

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MACA.No. 734 of 2003()

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-----------------------------------OPMV.105/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA

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APPELLANT/APPLICANT

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

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SIVAN @ BINU, VENGANINNAVILA VEEDU, KAZHUVOOR, NELLIMOODU P.O., KANJIRAMKULAM, NEYYATTINKARA.

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BY ADV. SRI.G.P.SHINOD, SRI.RAM MOHAN.G., SRI.MANU V.

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RESPONDENTS/RESPONDENTS

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

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1. OMANA, THERIVILA PUTHEN VEEDU, (NO.256/XI), NELLIMOODU P.O., KANIRAMKULAM, THIRUVANANTHAPURAM.

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2. ANDRUZ, PARUTHIVILA PUTHEN VEEDU, VENKULAM, KAZHUVOOR P.O., NELLIMOOD, KANJIRAMKULAM.

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3. THE NEW INDIA ASSURANCE COMPANY LTD., SREE HARI BUILDINGS, NEAR BUS STAND JUNCTION, NEYYATTINKARA.

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R1 BY ADV. SRI.G.SUDHEER. R3 BY ADV. SRI.A.C.DEVY.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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

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=================

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M.A.C.A. No. 734 of 2003 ================= Dated this the 11^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.105 of 2001 of Motor Accidents Claims Tribunal,Neyyattinkara challenges the judgment and award of the Tribunal dated March 6, 2003 awarding a compensation of Rs. 23,000/- for the loss caused to him on account of the injuries sustained by him in a motor accident.

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The facts leading to this appeal, in brief, are these:- On July 14, 2000 the claimant was travelling in a car bearing registration No. KL-01-J-9619 from Thiruvananthapuram to Parassala and when the car reached at Aralummoodu, it hit against a mini lorry, parked on the side of the road, and then hit an auto-rickshaw and overturned. The claimant sustained serious injuries. According to him, the accident occurred due to the rash

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MAA 734/2003

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and negligent driving of the offending car by the second respondent. Respondents 1 to 3 as the owner, driver and insurer of the offending car are jointly and severally liable to pay compensation to the claimant.

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The first respondent, owner of the offending car, filed a written statement, admitting the accident and further contended that the auto-rickshaw bearing registration No. KL-01-J-9619 came at a high speed from the opposite direction and dashed against the car and that there was no negligence on the part of the second respondent and that the accident occurred due to negligence the part of the driver of the auto-rickshaw. The third respondent, insurer of the offending car, filed a written statement, admitting the policy and further contended that the accident occurred due to the negligence on the part of the driver of the auto-rickshaw involved in the accident.

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Claimant was examined as PW1 and Exts.A1 to A12 (series) were marked on the side of the claimant before

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MAA 734/2003 3

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the Tribunal. No evidence was adduced on the side of the respondents. The Tribunal, on an appreciation of evidence, found that the accident occurred due to the rash and negligent driving of the offending car by the second respondent and awarded a compensation of Rs.23,000/with interest at 9% per annum from the date of petition till realization. The claimant has now 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 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 second 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 from Ext.A5 copy of the wound certificate and

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MAA 734/2003

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Exts.A6 and A7 referral O.P. cards, and A8 and A10 C.T. can

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reports:-

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Head injury.

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Haemorrhagic contusion of both temporal

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lobes.

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Mild diffuse cerebral oedema.

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Mucosal thickening both mixillary sinus.

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He was admitted in the hospital on 14-7-2000 and discharged on 14-8-2000.

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The Tribunal awarded a total compensation of

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Rs.23,000/-. Break up of the amount awarded is as under :-

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Loss of earning	:	Rs. 4,000/-
Transportation expense	:	Rs. 1,000/-
Treatment expense	:	Rs. 3,500/-
Bystander's expense	:	Rs. 1,000/-
Damage to clothing	:	Rs. 500/-
Pain and sufferings	:	Rs. 8,000/-
The injuries caused discomfort and inconvenience.	:	Rs. 5,000/- --------------------
Total	:	Rs.23,000/- ========

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The learned counsel for the claimant sought

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enhancement of compensation for the disability caused.

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MAA 734/2003

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Ext.A11 certificate of disability issued by the doctor from Medical College Hospital, Thiruvananthapuram shows that the petitioner has suffered 5% disability. The Tribunal did not accept the said certificate, as the doctor who issued the same was not examined and awarded Rs.5,000/- as compensation for the discomfort and inconvenience caused. As the said certificate was issued by a doctor from Medical College Hospital, we are inclined to accept the disability certificate and held that the claimant has suffered a disability of 5%. The income of the claimant was taken as Rs.2,000/- per month by the Tribunal, which appears to be correct, as there was no document to prove the claim that as a coolie he used to earn more than Rs.5,000/- per month. As the claimant was aged 23 at the time of the accident, the proper multiplier that can be adopted in this case is 17. Thus, for the disability caused, the claimant is entitled to Rs.20,400/- (Rs.2000/- x 12 x 17 x 5%). As the compensation is awarded for the disability caused, the claimant is not entitled for a further compensation for the discomfort and

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MAA 734/2003 6

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inconvenience caused. Regarding the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same.

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In the result, the claimant is found entitled to an additional compensation of Rs.15,400/-. He is entitled to interest @ 9% per annum from the date of petition till realization and proportionate cost. The third respondent being the insurer of the offending car shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment with notice to the claimant. 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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mn.

Sivan @ Binu v. Omana

Case brief

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Sivan @ Binu v. Omana

Case brief

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