Partly allowed

Yogeesh Rao.M. v. Ashok Kumar M.S.

Kerala HC13 Jun 2011MACA/1648/2005

Case brief

AI extract

What is this about?

The High Court enhanced the compensation awarded to the appellant claimant in a motor accident case. The Court modified the Tribunal's award regarding disability percentage, income loss, pain and suffering, and loss of amenities, ordering the insurer to deposit the increased amount.

What did the court decide?

Enhanced compensation of Rs. 75,200 granted along with modified interest rates; Tribunal award modified.

Yogeesh Rao.M. Vs Ashok Kumar M.S. — Motor Accident Claims | Kerala HC (2011)

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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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MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933

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MACA.No. 1648 of 2005() ----------------------OPMV.784/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD ....................

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APPELLANT(S): APPELLANT/PETITIONER

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YOGEESH RAO.M, S/O. LATE RAGHUVEERA RAO, SRIRAM PALACE, I.C.B.ROAD, KASARAGOD.

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BY ADV. SRI.P.V.KUNHIKRISHNAN

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RESPONDENTS/RESPONDENTS

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--------------1. ASHOK KUMAR.M.S., S/O.G.SHANKARAPPA, MANDABETTU, ADOOR, ADOOR VILLAGE AND POST, KASARAGOD TALUK.

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D.NARAYANA BHAT, S/O.VENKATARAMA BHAT, EARMARE HOUSE, BELA VILLAGE AND POST, KASARAGOD TALUK.

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THE BRANCH MANAGER, NEW INDIA ASSURANCE CO. LTD., BENDICHAL SHOPPING ARCADE, M.G.ROAD, KASARAGOD.

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G.SATHISH, S/O.J.GANESH, AMBIKA MOTOR DRIVING SCHOOL(MDS), MANGALORE, P.O.MANGALORE.

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SULOCHANA DAMODHAR, W/O.DAMODHAR, DELIGHT PHARMACY, UPPALA, KASARAGOD TALUK, P.O.UPPALA.

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THE BRANCH MANAGER, NATIONAL INSURANCE CO. LTD., HIGH LANE PLAZA, M.G.ROAD, KASARAGOD.

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ADV. SRI.SAJEEV KUMAR K.GOPAL FOR R5

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SRI.BINOY VASUDEVAN FOR R5

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SRI.THOMAS MATHEW NELLIMOOTTIL FOR R3

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

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M.A.C.A.No.1648 OF 2005

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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.784/2000 on the file of

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Motor Accidents Claims Tribunal, Kasargod. In this appeal, he challenges the judgment and award of the Tribunal dated June 30, 2005

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awarding a compensation of Rs.48,300/- for the loss caused to him on

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account of the injuries sustained by him in a motor accident. He

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sustained the following injuries in that accident that occurred on June

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30, 2000 at about 9.45 a.m. :

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Crush injury of ( R) hand finger tips with fracture of Terminal Phalynx of 2^nd , 3^rd , 4^th and 5^th fingers.

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Swelling and tenderness of right wrist joint with fracture of forearm bone ( styloid process radius)

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Pain and tenderness of right shoulder joint.

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Pain and tenderness all over the body.

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Traumatic amputation of tip of 3^rd , 4^th and 5^th fingers of right hand.

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The accident happened while the claimant was travelling in

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a bus bearing Reg.No.KL 14B/5277 from Mangalore to Kasargod.

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When he reached at Arikady-Bambrana junction, the bus collided head

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on with a Maruthi bus bearing Reg.No.KRC 207 driven by the first respondent. Alleging negligence against the first respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 2,50,000/-.

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Respondents 1 to 3 are the driver, owner and insurer of the offending Maruthi bus. Respondents 4 to 6 are the driver, owner and insurer of the bus in which the claimant was travelling. Respondents 1, 2 and 4 remained absent before the Tribunal. Fifth respondent filed a written statement admitting the accident, but attributed negligence to the first respondent. The third respondent, the insurer of the offending Maruthi bus though entered appearance before the Tribunal did not file any written statement. The sixth respondent, the insurer of the bus bearing Reg.No.KL 14B 5277 filed a written statement admitting the policy.

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Exts.A1 to A11 and Ext.X1 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the respondents. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending Maruthi bus by first respondent and awarded a compensation

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of Rs. 48,300/- with interest @ 9% per annum from the date of petition

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till realisation and proportionate cost. The claimant has now come up

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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 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 Tribunal awarded a total compensation of Rs.48,300/-.

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The break up of the compensation amount awarded is as under:

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Loss of income - Rs. 9,000/Transportation - Rs. 1,000/Extra nourishment - Rs. 1,000/Damage to clothing - Rs. 200/Medical expenses - Rs. 5,000/Bystander expenses - Rs. 1,500/Pain and suffering - Rs.10,000/Disability - Rs.20,600/-

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Counsel for the claimant sought enhancement of

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compensation for the disability caused and on other heads. He pointed

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out that no compensation has been awarded for loss of amenities and enjoyment in life.

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The Tribunal took the monthly income of the claimant as Rs.3,000/- and took the percentage of disability as 5% and adopted a multiplier of 11 and awarded Rs. 20,600/- for the disability caused. Claimant, PW1, was conducting a Jwellery shop and used to earn Rs.15,000/- per month, according to him. Ext.A6 is the copy of the Assessment order of Income-tax for the year 1998-99. Ext.A7 is the Acknowledgment Return Form No.2 showing his income for 1998-99. Ext.A9 is the tax receipt issued to the claimant for conducting a jwellery shop. As the claimant was conducting a jwellery shop and is proved by the documents produced by him, we feel that his monthly income can be reasonably fixed at Rs.3,500/-.

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As regards the percentage of disability, the Medical Board has certified in Ext.X1 that he has a permanent disability of 15%. The claimant was a goldsmith aged 50. There was traumatic amputation of tip of 3^rd , 4^th and 5^th fingers ( R). Taking into consideration all these aspects, we feel that the percentage of disability assessed by the Medical Board as 15 appears to be reasonable. The multiplier adopted

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by the Tribunal as 11 appears to be corrected as the claimant was aged 50 at the time of accident. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 69,300/- ( 15% x 3500 x 12 x 11). Thus on this count, the claimant is entitled to an additional compensation of Rs.48,700/-.

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The Tribunal did not award any compensation for loss of amenities and enjoyment in life. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of Rs. 15,000/- would be reasonable on this count.

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The Tribunal awarded Rs.10,000/- for pain and suffering endured by the claimant which appears to be very low. Having regard to the nature of the injuries sustained by the claimant, we feel that a compensation of Rs. 20,000/- would be reasonable on this count.

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There is another aspect in this case. The Tribunal awarded Rs. 9,000/- towards loss of income for 3 months @ Rs. 3,000/- per month. As we have fixed the monthly income of the claimant as Rs. 3,500/-, he is entitled to a compensation of Rs. 10,500/- towards loss of income. Thus on this count, the claimant is entitled to an additional compensation of Rs. 1,500/-. As regards the compensation

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

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The Tribunal awarded interest @ 9% per annum from the date of petition till 31/12/2004 and thereafter @ 6% per annum. In the circumstances of the case, the claimant is entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and for the enhanced compensation.

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In the result, the claimant is found entitled to an additional compensation of Rs. 75,200/-. He is entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation 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.1648/05 8

Yogeesh Rao.M. v. Ashok Kumar M.S.

Case brief

What is this about?

What did the court decide?

Yogeesh Rao.M. v. Ashok Kumar M.S.

Case brief

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What did the court decide?

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