Partly allowed

Krishnakumar v. Prithvi Raj

Kerala HC3 Apr 2013MACA/115/2005

Case brief

AI extract

What is this about?

This appeal challenged the Motor Accidents Claims Tribunal's findings of contributory negligence and quantum of compensation. The Court vacated the negligence finding, found no loss of salary during leave, but enhanced compensation for pain and suffering and disability, directing the insurer to deposit the additional amount with interest.

What did the court decide?

Contributory negligence finding vacated; compensation for pain and suffering enhanced to Rs.15,000; compensation for disability and amenities increased by Rs.8,000; total additional compensation of Rs

Krishnakumar Vs Prithvi Raj — Medical Negligence | Kerala HC (2013)

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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 S.SIRI JAGAN

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THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH

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WEDNESDAY, THE 3RD DAY OF APRIL 2013/13TH CHAITHRA 1935

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MACA.No. 115 of 2005 ( )

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AGAINST THE JUDGMENT IN OPMV.127/2002 of M.A.C.T OTTAPPALAM

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APPELLANT/PETITIONER:

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KRISHNAKUMAR, AGED 44 YEARS, S/O.K.G.NAIR, SREEKRISHNA SADANAM, KULAPPULLY SHORANUR-11.

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BY ADV. SRI.RAJIT

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RESPONDENTS/RESPONDENTS:

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PRITHVI RAJ, AGED 52 YEARS, S/O.PARAMESWARAN, KOLAZHY HOUSE, NEDUNGOTTUR SHORNUR (OWNER-CUM-DRIVER).

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UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, FAIZAL BUILDING MAIN ROAD, OTTAPALAM.

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R1 BY ADV. SRI.GRASHIOUS KURIAKOSE R1 BY ADV. SRI.GEORGE SEBASTIAN R2 BY ADV. SRI.P.V.JYOTHI PRASAD

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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S. SIRI JAGAN &

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BABU MATHEW P. JOSEPH, JJ.

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M.A.C.A. No. 115 of 2005

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Dated this the 3^rd day of April, 2013

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JUDGMENT

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Siri Jagan, J.

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The claimant in O.P.(MV) No.127 of 2002 before the Motor Accidents Claims Tribunal, Ottappalam, has come up in appeal against the award of the Tribunal in that O.P., claiming enhanced compensation for the injuries and disabilities suffered by him on account of an accident caused by the negligent driving of a motor vehicle owned by the 1^st respondent and insured with the 2^nd respondent. The Tribunal found that the appellant also contributed to the accident to the extent of 30% and, therefore, the compensation amount due to the appellant is liable to be reduced to that extent. Thereafter, the Tribunal assessed the compensation under various heads as follows:

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[M.AC.A.No.115/2005]

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Pain and suffering : Rs.10,000/Expenses for by-stander : Rs. 600/Loss of income during treatment period : Rs.18,000/Transportation expenses : Rs.1,000/Expenses for extra nourishment: Rs.2,000/-

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Loss of income due to disability in future and loss of amenities : 12,000/-

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Medical bills : Rs. 2,100/-

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-----------------------Total : Rs.45700/==========

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The appellant is challenging the finding regarding contributory negligence as well as the reasonableness of the quantum of compensation fixed.

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According to the appellant, there was evidence available with the Tribunal for finding contributory negligence on the part of the appellant. No reasons were also mentioned in the award as to why the appellant is held to be negligent to the extent of 30% in causing the accident. Regarding the quantum of compensation, the appellant submits that, although the appellant was bedridden for 88 days, compensation for corresponding loss of earnings

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[M.AC.A.No.115/2005]

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have not been given to the appellant, despite having accepted that his salary is Rs.17,154/-. The compensation amounts for pain and suffering, disability and loss of amenities are also on the lower side is the contention raised.

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We have heard the counsel for the Insurance company also.

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The accident occurred while the appellant was travelling in his motor cycle. He was travelling from north to south on a road having 6 mtres. width. The accident occurred 1.20 metres from the eastern tar end which is the right side of the appellant. The appellant slowed down the vehicle and was about to park the same by the side of the road. Then the offending motor cycle came from behind and hit the appellant. The police chargesheeted only the driver of the other vehicle for negligence which is proved by the criminal court records. The respondents have not adduced any evidence also. In the above circumstances, we are of opinion that the Tribunal could not have entered a finding of contributory negligence on the part of the appellant, by any stretch of imagination. In the above circumstances, we vacate the finding regarding contributory negligence on the part of the appellant and hold that the appellant is entitled to the entire compensation payable.

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[M.AC.A.No.115/2005]

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Although the appellant claims loss of earnings for the entire 88 days, the appellant has no case that on account of taking leave he has lost any salary. He is a Deputy General Manager of the State of Bank of Travancore. Unless he proves that on account of the leave taken he had to forgo any part of his salary, he cannot claim loss of earnings on that account. Of course, the appellant lost leave on account of the same. But, we find that the Tribunal has granted an amount of Rs.18,000/towards loss of income during the treatment period. As such the appellant is not entitled to any further compensation under that head.

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The appellant suffered fracture of fibula (R) and fracture medial cuneiform (R). He must have suffered considerable pain on account of the injuries. Therefore, we are inclined to increase the compensation for pain and suffering to Rs.15,000/- from Rs.10000/-. The appellant claims enhanced compensation on account of disability and loss of earning power. The appellant has no case that after the accident he ceased to be in employment. But, it is an admitted case that he continued to be in the former employment without any reduction in the salary. That being so, at least till the date of retirement, the appellant will not have any loss of earning power as such. But, after retirement, the appellant

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[M.AC.A.No.115/2005] 5

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may suffer some difficulty because of the permanent disability of 8% certified by the doctor. He will also have loss of amenities in life. For both together, the Tribunal has awarded Rs.12,000/- as a lump sum payment. We are inclined to increase it to Rs.20,000/-. Thus, altogether, the appellant would be entitled to additional compensation of Rs.13,000/- over and above what has been awarded by the Tribunal. This amount would carry interest at the rate of 9% per annum from the date of the claim petition till the date of payment. The 2^nd respondent insurance company shall deposit the entire amount assessed by the Tribunal if not already deposited and the additional amount awarded by us within two months.

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The appeal is disposed of as above.

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Sd/S. SIRI JAGAN, JUDGE.

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Sd/- BABU MATHEW P. JOSEPH, JUDGE.

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krs.

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// True Copy //

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P.S. to Judge.

Krishnakumar v. Prithvi Raj

Case brief

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Krishnakumar v. Prithvi Raj

Case brief

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