Allowed

Dhanesh v. Subramanian

Kerala HC5 Nov 2013MACA/1173/2009

Case brief

AI extract

What is this about?

The High Court enhanced compensation awarded in a motor accident claim by correcting the loss of earning capacity calculation using an accepted 10% disability and higher multiplier, adjusting other heads for extended recovery time and proper bystander rates, ordering the insurer to deposit the additional amount with interest.

What did the court decide?

Compensation enhanced by Rs. 46,850 over the Tribunal's award, carrying 9% interest per annum from the date of claim till payment.

Dhanesh Vs Subramanian — 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 & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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TUESDAY, THE 5TH DAY OF NOVEMBER 2013/14TH KARTHIKA, 1935

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MACA.No. 1173 of 2009 (B)

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AGAINST THE AWARD IN OPMV 337/2005 of MACT, THRISSUR, DATED 17-11-2008

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APPELLANT(S)/PETITIONER:

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DHANESH, 18 YEARS, S/O.GANESAN, KOLAZHY HOUSE, PERINGANNUR, MUNDAR P.O. PERAMANDALAM, THRISSUR.

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BY ADV. SRI.SHEJI P.ABRAHAM

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RESPONDENT(S)/RESPONDENTS:

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1. SUBRAMANIAN, S/O.NEELI, KAIKKOLLY HOUSE, KATTIKULAM, THRISSILERY MANANTHAVADY, VAYANADU.

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2. RAJEEVAN.C.K., CHERUVATTUKARA HOUSE, KATTIKULAM P.O., MANANTHAVADY, VAYANADU.

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3. UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, TAWTHAR BUILDING NEAR PINANAGODE JUNCTION, MAIN ROAD, VAYANAD.

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R3 BY ADV. SRI.P.M.M.NAJEEB KHAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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S. Siri Jagan & K. Ramakrishnan, JJ.

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M.A.C.A. No. 1173 of 2009

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Dated this, the 5^th day of November, 2013.

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J U D G M E N T

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Siri Jagan, J.

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Claimant in O.P.(MV) No. 337/2005 before the Motor Accidents Claims Tribunal, Trichur, is the appellant herein. He suffered injuries and consequential disability in an accident caused by the negligent driving of a vehicle owned and driven by respondents 1 and 2 and insured with the 3^rd respondent. He filed the O.P. claiming compensation for the same. The Tribunal, after finding negligence on the part of the driver of the vehicle, awarded compensation under various heads as follows:

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Loss of earning	Rs. 5,000/-
Expense for transportation	Rs. 1,000/-
Expense for extra nourishment	Rs. 5,000/-
Damages to clothing	Rs. 500/-
Expense for treatment	Rs. 7,800/-
Expense for bystander	Rs. 1,000/-
Compensation for pain and suffering	Rs. 15,000/-
Compensation for loss of amenities	Rs. 10,000/-
Compensation for disability	Rs. 38,400/-
Total	Rs. 83,700/-

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Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has filed this appeal seeking enhanced compensation.

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The accident was on 15.1.2005. At that time, the appellant was 18 years old. He claimed to be a carpenter by profession and according to him, he was earning Rs. 3,500/- p.m.

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M.A.C.A. No. 1173 of 2009 -: 2 :-

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The Tribunal fixed a notional income of Rs. 2,500/-. According to the appellant, this is on the lower side. It is submitted that the appellant suffered serious injuries to the abdomen and his spleen had to be removed. He was hospitalized for 15 days. The doctor who treated him certified 10% disability. The Tribunal adopted only 8%. Further, for calculating loss of earning capacity, the Tribunal adopted his income only as Rs. 2,000/- p.m. According to the appellant, taking into account these facts, the amounts of compensation awarded under the heads ‘loss of earning, expense for bystander, pain and suffering and loss of amenities in life as well as loss of earning capacity’, are on the lower side.

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We have considered rival contentions of the parties.

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Two discharge summaries have been proved in evidence. They show that the appellant was hospitalised for 15 days. There was no acceptable evidence on record to prove his avocation or income. In the above circumstances, we are not inclined to interfere with the notional income of Rs. 2,500/- fixed by the Tribunal.

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Ext. A7 is the disability certificate. The same shows that the appellant underwent laprotomy and splenoctomy and his spleen was removed, which resulted in disability for 10%. Although the appellant had not proved Ext. A7 disability certificate formally by examining the doctor, insofar as his spleen has been removed, we are inclined to accept the 10% disability for the purpose of

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M.A.C.A. No. 1173 of 2009

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-: 3 :-

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calculating loss of earning capacity. In this connection, we note that Ext. A10 shows the following injuries of the appellant:

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“1. Mild - moderate amount of intra abdominal free fluid.

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Minimal pleural effusion on left.

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Spleen shows inhomogeneously increased texture in the mid and interior part - this may be due to splenic contusion, coexisting laceration can not be excluded.

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Needs clinical correlation.”

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This is also a reason for us to accept the entire 10% as the disability for the purpose of calculating loss of earning capacity. As rightly pointed out by the counsel for the appellant, the Tribunal went wrong in adopting the income only as Rs. 24,000/- per annum after fixing the notional income of the appellant as Rs. 2,500/- p.m. Since the appellant was only 18 years old at the time of accident, the multiplier applicable is 18 as per the decision in Sarla Verma v. Delhi Transport Corporation , 2010 (2) KLT 802. Calculated thus, the compensation due to the appellant for loss of earning capacity is Rs. 54,000/- (2500 x 12 x 18 x 10%) instead of Rs. 38,400/- awarded by the Tribunal. The difference would be Rs. 15,600/-.

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Although the appellant was hospitalised only for 15 days, the fact that his spleen was removed and he underwent two operations as well, would go to show that the appellant was out of action for quite some time. Therefore, we are inclined to give 6 months’ loss of

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M.A.C.A. No. 1173 of 2009

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-: 4 :-

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earnings, which would come to Rs. 15,000/- instead of Rs. 5,000/- The appellant is entitled to Rs. 2,250/- as bystander’s expenses for 15 days at the rate of Rs. 150/- per day. We are inclined to enhance compensation for pain and suffering to Rs.25,000/- from Rs. 15,000/-. We are also inclined to enhance compensation for loss of amenities to Rs. 20,000/from Rs. 10,000/-.

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In all, the appellant would be entitled to additional compensation of Rs. 46,850/- over and above what has been awarded by the Tribunal. This amount would carry interest @ 9% p.a. from the date of the claim petition till the date of payment. The 3^rd respondent-Insurance Company is directed to deposit this amount also within two months.

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With the above modification of the impugned award of the Tribunal, this appeal is disposed of.

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Sd/- S. Siri Jagan, Judge.

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Sd/- K. Ramakrishnan, Judge.

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Tds/

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[True copy]

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P.S to Judge.

Dhanesh v. Subramanian

Case brief

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Dhanesh v. Subramanian

Case brief

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