Allowed

Kalesh Kumar v. George K. Varkey

Kerala HC5 Mar 2012MACA/411/2012

Case brief

AI extract

What is this about?

The Motor Accidents Claims Appeals Court allowed the appeal filed by a contractor suffering serious injuries. The court found the Tribunal's award inadequate and granted a further sum of Rs. 21,500 towards various heads of claim, including loss of earning.

What did the court decide?

Further amount of Rs. 21,500 awarded to the appellant towards loss of earning, extra nourishment, transportation, pain and suffering, and loss of amenities with interest.

Kalesh Kumar Vs George K. Varkey — Medical Negligence | Kerala HC (2012)

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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 PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI

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MONDAY, THE 5TH DAY OF MARCH 2012/15TH PHALGUNA 1933

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MACA.No. 411 of 2012 () -----------------------

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OP(MV).326/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM --------------

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APPELLANT/PETITIONER:

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KALESHKUMAR S/O. JANARDHANAN, KRISHNA NIVAS, MATTAKANDATHIL KEECHERY, MAMPUZHA DESOM, AMBALLOOR VILLAGE.

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BY ADVS.SRI.K.A.HASHIM SRI.M.I.ISMAIL

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RESPONDENTS / RESPONDENTS :

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1. GEORGE K. VARKEY KOLLAMKOTTU HOUSE, KANJIRAMATTOM, AMBALLOOR PIN - 682 315.

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2. K.P. SHAJI, H. NO. IV/131,KOLLARIL HOUSE, UDYAMPEROOR.P.O VAIKOM, PIN - 686 141.

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3. THE ORIENTAL INSURANCE CO. LTD., EDAPALLY, PIN - 682 024.

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R3 BY ADVS. SRI.MATHEWS JACOB (SR.)

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SRI.P.JACOB MATHEW

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BY ADV. SRI. GEORGE CHERIAN THIRUVALLA

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ. ===================== M.A.C.A. NO. 411 of 2012

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===================== Dated this the 5^th day of March 2012

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JUDGMENT

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Pius C.Kuriakose,J.

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A Contractor, who suffered serious injuries - compound depressed fracture on the right frontal region and orbit with injury to eyeball, bleeding profusely, contused abrasion on the right shoulder, clinically fracture of right scapula,fracture of mandible, multiple fracture of right maxillary sinus and was treated with wound debridement for comminuted fracture mandible and maxillary reduction with surgical interventions including evisceration of right eye, mandible reduction and fixation under general anasthesia, complains that the total amount of Rs.4,04,840/- which was awarded by the Tribunal against his claim of Rs.10,79,000 is inadequate. It is urged in the memorandum of appeal that the learned Tribunal did not award to him adequate compensation on any one of the heads under claim in the O.P.

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MACA 411/2012

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-2-

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Shri K.A.Hashim, learned counsel for the appellant submitted before us that the percentage of permanent disability assessed by the learned Tribunal for arriving at disability compensation is low. According to him, the report submitted by the Medical Board was not properly appreciated by the Tribunal in this regard. He submitted that towards loss of amenities and pain and suffering, the appellant was not awarded adequate compensation. He submitted that the appellant should have been awarded loss of earnings for at least 8 months as against 5 months allowed by the learned Tribunal.

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Shri Mathews Jacob, Senior counsel for the Insurance Company per contra would submit that the appellant cannot have any legitimate grievance regarding the amount awarded . According to him, the percentage of disability calculated by the learned Tribunal is erroneous. The learned Senior counsel submitted that it is the Insurance Company who should be aggrieved.

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Having regard to the rival submissions addressed at the Bar and having very carefully gone through the impugned award,

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MACA 411/2012

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-3-

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we are of the view that there is no warrant at all for interfering with the compensation awarded to the appellant under the head of permanent disability . We find force in the submission of the learned Senior counsel that the percentage of 35% arrived at by the learned Tribunal is excessive. But we do not propose to interfere with the finding of the Tribunal in the absence of memorandum of cross objection or appeal preferred by the Insurance company. Coming to the various heads of compensation awarded to the appellant, we feel that considering the visits which the appellant had to make for review to the hospital, the appellant can be awarded Rs.500/- more towards transportation charges. We award the said amount to the appellant. Towards extra nourishment, the Tribunal awarded Rs.1500/-- which is quite reasonable. Considering the gravity of injuries and the appellant had undergone treatment, we award Rs.1,000/- towards extra nourishment. We find force in the submission of the learned counsel for the appellant that the appellant should have been awarded loss of earning for eight months. As the monthly income has been correctly taken into

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MACA 411/2012

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-4-

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account by the Tribunal, the appellant will be eligible to get a further amount of Rs.10,500/-- for loss of earning. We award to the appellant the said amount towards loss of earning. Towards pain and suffering, we are inclined to grant Rs.3,000/- more which we award to the appellant. Towards loss of amenities also, we award to the appellant a sum of Rs.5,000/- more. Thus in all the appellant becomes eligible to get a further amount of Rs.21,500/- which will carry interest at the rate awarded by the Tribunal.

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The appeal is allowed . No order as to costs.

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PIUS C.KURIAKOSE, JUDGE

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A.V.RAMAKRISHNA PILLAI, JUDGE

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ks.

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MACA 411/2012 -5-

Kalesh Kumar v. George K. Varkey

Case brief

What is this about?

What did the court decide?

Kalesh Kumar v. George K. Varkey

Case brief

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