Partly allowed

John Joseph v. Abraham

Kerala HC13 Nov 2013MACA/1199/2009

Case brief

AI extract

What is this about?

This appeal challenged the low quantum of compensation awarded for injuries sustained in a motor vehicle accident. The High Court enhanced compensation for loss of earning capacity, loss of amenities, and medical expenses, awarding a total additional Rs.49,000/-.

What did the court decide?

Compensation enhanced by Rs.24,000/-, Rs.15,000/-, and Rs.10,000/- respectively, totaling Rs.49,000/- additional with 9% interest.

John Joseph Vs Abraham — Motor Accident Claims | 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 K.RAMAKRISHNAN

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WEDNESDAY, THE 13TH DAY OF NOVEMBER 2013/22ND KARTHIKA, 1935

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MACA.No. 1199 of 2009 (C)

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AGAINST THE AWARD IN OPMV 1818/2001 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA DATED 10-12-2008

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APPELLANT(S)/PETITIONER IN OP(MV)::

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JOHN JOSEPH, S/O.OUSEPH, MATTATHIL HOUSE, VETTOOR, ERNAKULAM NOW RESIDING AT C/O.SEBI ELECTRICALS, MAIN ROAD CHALAKUDY, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

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BY ADVS.SRI.P.V.BABY

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SRI.A.N.SANTHOSH

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RESPONDENT(S)/RESPONDENTS IN OP(MV)::

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1. ABRAHAM, S/O.PAILEE CHERIYA, NARIYELI HOUSE, VETTOOR, NELLAD P.O.

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2. MANAGER, UNITED INDIA INSURANCE CO.LTD., ERNAKULAM.

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R2 BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR)

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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shg/

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S.SIRI JAGAN & K. RAMAKRISHNAN, JJ.

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MACA No.1199 of 2009 =================

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Dated this the 13^th day of November, 2013

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J U D G M E N T

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K. Ramakrishnan, J

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The claimant in O.P.(MV) No.1818/2001 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda, is the appellant herein. The appellant filed the application seeking compensation for the injuries and consequential disabilities sustained by him in a motor vehicle accident caused on account of the rash and negligent driving of a vehicle owned and driven by the 1^st respondent and insured with the 2^nd respondent. After considering the evidence on record, the Tribunal found that the accident occurred due to the negligent driving of the vehicle by the 1^st respondent and awarded a total compensation of Rs.43,400/- on various

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heads as follows:

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By-stander's expenses	: Rs.2,400/-
Compensation for loss of income	: Rs.10,000/-
Transportation expenses	: Rs.1,000/-
Compensation for pain and suffering	: Rs.20,000/-
Discomfort and loss of amenities	: Rs.10,000/-
Total	: Rs.43,400/-

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MACA No.1199 of 2009

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Dissatisfied with the quantum of compensation

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awarded, the appellant has filed this appeal before this court seeking enhanced compensation.

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Heard the counsel for the appellant and the counsel for the insurance company.

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The counsel for the appellant submitted that the appellant was running an electrical shop and getting a monthly income of Rs.10,000/-. But the Tribunal has arbitrarily fixed his monthly income as Rs.2,500/- per month, which is very low. Further the disability certificate produced before the court was not considered at all by the Tribunal for the purpose of assessing compensation under the head 'loss of earning capacity'. So he filed an application before this court for referring him to the Medical Board and the same was allowed and as per examination, the Medical Board had assessed his disability for loss of earning capacity as 12%. So he is entitled to get compensation under the head 'loss of earning capacity' and also 'loss of amenities in life' as well, is his contention. Further though a consolidated medical bill was produced,

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MACA No.1199 of 2009

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the Tribunal has not considered the same and no amount was awarded under the head 'medical expenses'. So the appellant is entitled to get enhancement under all heads, is the claim of the appellant.

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On the other hand the counsel for the insurance company submitted that the disability certificate obtained from the Medical Board will go to show that it will not affect his earning capacity and as such he is not entitled to get compensation under the head 'loss of earning power'. The total compensation awarded, considering the injuries sustained and disability noted, is just and proper and no interference is called for at the hands of this court, is the contention of the insurance company.

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We have considered the rival contentions of both parties in detail.

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The appellant was referred to Medical Board on his application before this court, and after examining him, sent a report to this court, which is made part of the records of the case. Though the appellant had a case that he was conducting an electrical shop and getting

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MACA No.1199 of 2009

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Rs.10,000/- per month, he had not produced any document to prove his income as such. So under the circumstances the amount of Rs.2,500/- fixed by the Tribunal as his monthly income in the year 2001 cannot be said to be low. So we are not inclined to enhance his monthly income.

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The Medical Board had noted the following disabilities:

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Pain ® leg and ankle

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Keloid scar of thermal burns fully healed

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Terminal 5⁰ limitation of ankle dorsiflexion and plantar flexion.

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X-ray on 25.5.13 shows a) Malunited right fibula lower end with excess callus b) Minimal malunion of right tibia lower end with 5⁰ lateral angulation.

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c) Minimal traumatic arthritis right ankle. Functionally he is a)Able to squat with difficulty b)Little difficulty in climbing up and down the stairs.

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They have assessed the permanent disability at 6%. But assessed the loss of earning capacity as 12% on the basis of Workmen's Compensation Act and it was also stated that it will not affect his daily activities. But considering the fact that he is having a difficulty in squatting and climbing up and down the stairs, as a shop owner, he may have some difficulties and that may affect his earning capacity to some extent. So we are inclined to take 5% disability for the

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MACA No.1199 of 2009

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purpose of assessing compensation under the head 'loss of earning capacity'. If a calculation is made on this basis, he will be entitled to get an amount of Rs.24,000/- (2500 x 12 x 16 x 5%) under the head loss of earning capacity, and we award that amount under that head.

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Considering the nature of disabilities suffered by him, his age and the fact that he will have to be with this difficulty for the remaining period in his life, we feel that the amount of Rs.10,000/- awarded by the Tribunal under the head 'loss of amenities in life' is also on the lower side. So we enhance the same to Rs.25,000/-. The Tribunal has not awarded any amount under the head 'medical expenses' solely on the ground that the appellant had produced a consolidated bill without any supporting independent bills and vouchers. But that is not a ground for denying the entire amount towards medical expenses. The fact that he was treated as an inpatient for 16 days in a private hospital was taken into consideration by the Tribunal for the purpose of awarding compensation under the head medical expenses apart from awarding compensation under other

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MACA No.1199 of 2009

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heads like bystanders expenses, extra nourishment etc. So considering these aspects, we feel that a consolidated amount of Rs.10,000/- can be awarded under the head 'medical expenses' as well. Though persuasive arguments were made by the counsel for the appellant for getting enhancement under other heads also, we are not inclined to enhance any amount under the other heads, as the amounts awarded by the Tribunal on other heads is just and proper. In all, the appellant will be entitled to get an additional compensation of Rs.49,000/- over and above what has been awarded by the Tribunal, which the 2^nd respondent insurance company is liable to pay with 9% interest from the date of claim petition till date of payment. Two months' time is granted to the insurance company to deposit this amount as well.

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

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Sd/-

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S.SIRI JAGAN, JUDGE

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Sd/-

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K.RAMAKRISHNAN, JUDGE

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Shg/

John Joseph v. Abraham

Case brief

What is this about?

What did the court decide?

John Joseph v. Abraham

Case brief

What is this about?

What did the court decide?

What the court decided

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