Allowed

N.v.Vally v. M.K.Thahanoon

Kerala HC13 Jun 2011MACA/1277/2007

Case brief

AI extract

What is this about?

In this motor accident appeal, the High Court increased the compensation awarded by the Tribunal. The Court enhanced the loss of earning capacity and added compensation for loss of amenities and higher actual medical expenses, totaling an additional 52,140 rupees, and raised the interest rate from 7% to 7.5%.

What did the court decide?

Award of additional compensation of 52,140 rupees and interest rate enhancement to 7.5% per annum.

N.v.Vally Vs M.K.Thahanoon — Motor Accident Claims | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933

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MACA.No. 1277 of 2007() ----------------------OPMV.1080/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY ....................

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APPELLANT(S): APPELLANT/PETITIONER

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N.V. VALLY, D/O. KONDAPPAN, W/O LATE PADMANABHAN, AGED 55 YEARS, 'SREEPADMAM', PAREKADAVU, DHARMADAM P.O.

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BY ADVS. SRI. M.SASINDRAN SRI. M.V.BIPIN

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RESPONDENT(S): RESPONDENTS

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M.K.THAHANOON, S/O.HAMZA, RAMLATH MANZIL, P.O. DHARMADAM.

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V.SHAMSHEER, S/O.C.H.MAMMU, ASHA MANZHIL,

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DHARMADAM AMSOM, OZHAYIL BHAGOM, THALASSERY.

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THE UNITED INDIA INSURANCE COMPANY LTD., KANNUR.

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R3 BY ADV. SMT.K.SHERIN MOHAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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MACA.No. 1277 of 2007

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A.K.BASHEER & P.Q. BARKATH ALI, JJ. ================== M.A.C.A. No. 1277 of 2007

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

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Dated this the 13^th day of June, 2011

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JUDGMENT

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Barkath Ali, J.

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Appellant is the claimant in O.P.(MV) No.1080/2001 on the file of the Motor Accidents Claims Tribunal, Thalassery. In this appeal she challenges the judgment and award of the Tribunal dated November 4, 2006 awarding a compensation of ` 75,750/- for the loss caused to her on account of the injuries sustained by her in a motor accident.

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The accident happened on February 5, 2001 at 11 a.m. near Dharmadam Bridge at Thalassery. While the claimant along with another lady were travelling in an autorickshaw bearing registration No.13E/4853 from Meethilapeedika to Venue Corner, Thalassery, it dashed against a mini lorry bearing registration No.KL-13/6937. She sustained serious injuries in the accident. Alleging negligence against the driver of the auto-rickshaw (the

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MACA 1277/2007 2

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second respondent), the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of ` 2,00,000/-.

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Respondents 1 and 2, the owner and the driver of the offending auto-rickshaw, remained absent and they were set ex parte by the Tribunal. The third respondent, the insurer of the offending auto-rickshaw, filed a written statement admitting the policy, but attributed negligence to the driver of the lorry. This O.P. was tried along with O.P. (MV) No.1081/2001 filed by the other injured in the same accident and a common award was passed. PWs.1 to 4 and Exts.A1 to A18 and Ext.X1 were marked on the side of the claimant. No evidence was adduced by the contesting third respondent. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of the second respondent and awarded a compensation of ` 75,750/- with interest @ 7% p.a. from the date of petition till realization and proportionate costs. The claimant has come up in appeal challenging the quantum of

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MACA 1277/2007 3

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compensation awarded by the Tribunal.

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Heard the counsel for the claimant and the

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counsel for the Insurance Company.

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The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the second respondent is not seriously 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 Tribunal awarded a total compensation of ` 75,750/-. Break up of the compensation awarded is as

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under:-

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Loss of earning	:	`4,500
Transportation expenses	:	`3,000
Medical expenses	:	`10,682
Bystander's expenses	:	`2,350
Extra nourishment	:	`1,500
Pain and suffering	:	`25,000
Loss of earning capacity	:	`28,710
		------------------
Total	:	`75,742
Rounded to	:	`75,750 =======

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The counsel for the claimant sought enhancement

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MACA 1277/2007

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of compensation for the disability caused and on other heads.

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The claimant sustained the following injuries in the

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accident:-

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1. Multiple fracture ribs on the left side (4 to 8) and left clavicle.

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1. Injuries on legs.

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Ext.X1 certificate of disability issued by the Medical Board,

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General Hospital, Thalassery shows that the claimant has now the following disabilities:-

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1. Healed multiple fracture ribs on left side (4 to 8)

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1. Healed fracture left clavicle with partial ankylosis left shoulder 90 degree abduction.

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1. Terminal restriction of flexion of left middle finger at metacarpo phalangeal joint.

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PW3 doctor attached to the Medical Board also testified to that effect.

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The Tribunal took the monthly income of the claimant as ` 1,500/-, took the percentage of disability as 14.5%, as certified by the Medical Board in Ext.X1, adopted

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MACA 1277/2007 5

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multiplier of 11 and awarded a compensation of 28710/for the loss of earning capacity. The claimant was a lady aged 50 earning 4,000/- per month, according to her. She has testified to that effect as PW1 before the Tribunal. Taking into consideration the above aspect, we feel that her monthly income can reasonably be fixed at 2,500/-. Percentage of disability assessed by the Tribunal as 14.5% and multiplier adopted as 11 appear to be reasonable. Thus calculated for the disability caused, the claimant is entitled to a compensation of 47,850/-. (2,500/- x 12 x 11 x 14.5%). Thus the claimant is entitled to an additional compensation of 19,140/- on this count.

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The Tribunal awarded a sum of 4,500/- for loss of earning for three months at the rate of 1,500/- per month. As we have fixed monthly income of the claimant as 2,500/-, she is entitled to a compensation of 7,500/- on this count.

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No compensation was seen awarded for loss of amenities and enjoyment in life. Taking into consideration

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MACA 1277/2007 6

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the nature of the injuries sustained, we feel that a compensation of ` 15,000/- would be reasonable on this count.

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There is another aspect in this case. 10,682/was awarded for medical expenses. In I.A. No.853/2011 in this appeal the appellant produced medical bills worth 15,542.34 for having incurred medical expenses, which are marked as Ext.X1 series. Taking into consideration the above aspect, we feel that an additional compensation of ` 15,000/- would be reasonable towards treatment expenses. As regards 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 ` 52,140/-. The Tribunal awarded interest @ 7% per annum, which appears to be very low. She is entitled to interest @ 7.5% per annum for the compensation already awarded and also for the enhanced compensation from the date of petition till

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MACA 1277/2007

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realization. The third respondent being the insurer of the offending vehicle shall deposit the amount 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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N.v.Vally v. M.K.Thahanoon

Case brief

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N.v.Vally v. M.K.Thahanoon

Case brief

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