Partly allowed

Lissy & Ors. v. Inasu & Anr.

Kerala HC12 Sept 2013MACA/1963/2011

Case brief

AI extract

What is this about?

In this motor accident claims appeal, the High Court allowed the appellants (legal heirs of the deceased) to continue the appeal under the Kerala Torts Act. The Court enhanced the compensation from Rs. 34,700 to Rs. 51,700 by awarding additional compensation for loss of service, permanent disability, and loss of amenities of life, with interest at 9% per annum.

What did the court decide?

Appeal allowed in part; compensation enhanced by Rs. 17,000 with 9% interest; Respondent II directed to deposit the amount in the Tribunal.

Lissy & Ors. Vs Inasu & Anr. — Specific Performance | 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 THOMAS P.JOSEPH

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THURSDAY, THE 12TH DAY OF SEPTEMBER 2013/21ST BHADRA, 1935

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MACA.No. 1963 of 2011

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AGAINST THE AWARD IN OPMV 903/2007 of M.A.C.T OTTAPPALAM DATED 02-09-2010

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APPELLANTS:

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ANTONY T.I (DIED ON 11.10.10) 2. LISSY INASU, W/O.INASU, MUTHUKKAL HOUSE, KURIYACHIRA THALORE THRISSUR 3. INASU T.A, THALOKKARAN HOUSE, CHITTISSERY P.O, THRISSUR 4. VARGHESE T.A THALOKKARAN HOUSE,OLLUKKARA P.O, THRISSUR 5. THIMOTHY, THALOKKARAN HOUSEKURIACHIRA P.O, THRISSUR BY ADVS.SRI.SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN

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RESPONDENTS:

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INASU. M.A., S/O. ANTONY, MUTHUKKAL HOUSE, KURIYACHIRA, NEAR ST. MARY'S SCHOOL, THRISSUR – 680 520 THRISSUR (OWNER-CUM-DRIVER OF KL 8 P 5972 autorickshaw) 2. UNITED INDIA INSURANCE CO.LTD; IVTH FLOOR, PATHAYAPURA NEAR RAGAM THEATRE, ROUND SOUTH, THRISSUR – 680 003 (POLICY NO. 100606/31/07/01/00002961)VALID FROM 24.5.2007 TO 23.5.2008 ) R2 BY ADVS. SRI.V.JAYAPRADEEP SRI.JOHN JOSEPH VETTIKAD

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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========================= M.A.C.A. No. 1963 of 2011

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============================ Dated this the 12^th day of September, 2013

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J U D G M E N T

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Appellants are the legal heirs of the deceased claimant

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who died of some other reason after the award. In view of Sections 2 and 9 of the Kerala Torts (Miscellaneous Provisions) Act, 1977 as explained in Anuradha Varma V. State of Kerala (1993(2) KLT 777), the appellants who are legal heirs of the deceased claimant are entitled to proceed with the appeal for enhanced compensation.

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First appellant remained absent. Second respondent appears through counsel.

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This appeal arises from the award dated 02.09.2010 in O.P.(MV) No. 903 of 2007 of the Motor Accident Claims Tribunal, Ottapalam (for short, “the Tribunal”).

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The deceased claimant, aged about 83 years at the relevant time, stated to be coolie suffered injuries in a motor

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M.A.C.A No.1963 of 2011 2

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accident on 15.07.02007. He was riding on the pillion of a motor cycle on which the autorickshaw belonging to and driven by the first respondent hit. The Tribunal found that the accident occurred due to the negligence of the first respondent and assessed compensation payable to the appellant at Rs. 34,700/- accepting contention of the second respondent regarding violation of policy condition. While the Tribunal directed the second respondent to pay compensation, it was given the right of recovery. Appellants are aggrieved by the quantum of compensation.

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The learned counsel submits that the Tribunal has not awarded loss of earnings. According to the learned counsel, when the claim is made under Sec.163A of the Motor Vehicles Act, 1988 (for short, “the Act”) even when there is no loss of earning notional income has to be taken as Rs.1,500/- per month. It is also argued that compensation was not awarded for disability and loss of earning power in spite of proof. Compensation awarded on other heads is also low.

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M.A.C.A No.1963 of 2011

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Learned counsel for the second respondent has contended that since the deceased - claimant was aged 83 years at the relevant time and his claim that he was earning cannot be accepted. It is also argued that there is no reason to interfere with the compensation awarded.

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Even if its is assumed that the deceased claimant was not earning, there is no evidence to show that he was laid up during the relevant time. On the other hand he was riding on the pillion of a motor cycle which shows that he was healthy. His service to the family can be taken into account. Bearing the income that has to be taken for assessment of compensation under Sec. 163A of the Act also in mind, value of services of the deceased - claimant can be taken as Rs.1,500/- per month.

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Paragraph 8 of the award states the injuries suffered by the deceased claimant. It includes fracture of neck of left femur. Deceased - claimant underwent inpatient treatment for 10 days, followed by O.P. treatment.

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Having regard to the above, I am inclined to award

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M.A.C.A No.1963 of 2011 4

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loss of service for three months which comes to Rs.4,500/-. Treatment expenses awarded as per the medical bills as Rs.11,200/-. It is likely that the deceased claimant was not able to procure and produce all the medical bills. Hence a further sum of Rs.1,000/- is awarded on that account. Having regard to the number of visits the deceased claimant may have to make at the hospital a further sum of Rs.1,000/- is awarded for transportation charges.

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Ext.A10 is the certificate produced by the deceased - claimant to prove permanent disability. There, it is stated as 8.59%. The Tribunal did not accept Ext.A10 for the reason that neither the deceased claimant nor the Medical Officer who issued the certificate was examined. On principle, it is necessary that the Medical Officer has to be examined. But the fact that the deceased claimant must have suffered some disability having regard to his age, also from the fracture of the neck of femur cannot be disputed. Having regard to all relevant circumstances, the permanent disability can be taken as 5%. The multiplier to be adopted

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M.A.C.A No.1963 of 2011 5

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is '5'. Compensation payable for disability comes to Rs.4,500/- (1500x12x5x5/100). Since the deceased claimant was in a advanced age, it is likely that the fracture may not have united. Possibility of recurrence of fracture at the same site in case of any untoward incident cannot be ruled out. The injuries are likely to affect enjoyment of amenities of life. Hence Rs.6,000/- is allowed as compensation for loss of amenities. The additional compensation payable to the deceased claimant comes to Rs. 17,000/-. That amount will carry interest at the rate 9% per annum from the date of application till realisation.

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Resultantly, the appeal is allowed in part as under:-

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In modification of the award dated 02.09.2010 in O.P.(MV) No. 903 of 2007 of the Motor Accident Claim Tribunal, Ottapalam, the appellants are allowed to recover a further sum of Rs.17,000/(Rupees Seventeen thousand only) with interest at the rate of 9% per annum from the date of application till recovery from the respondents 1 to 3.

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1. Second respondent is directed to deposit the said

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M.A.C.A No.1963 of 2011 6

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amount in the Tribunal within 2 (Two) months from this day.

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It is also directed that so far as permission granted by the Tribunal for recovery of the amount from the first respondent stands, the second respondent can recover the additional compensation awarded by this court from the first respondent with interest on payment of same to the appellants.

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1. Parties shall suffer their cost in the appeal.

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1. Direction regarding deposit/withdrawal of the amount shall be issued by the Tribunal.

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Sd/-

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THOMAS P.JOSEPH, JUDGE

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//true copy//

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P.A. to Judge

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Smv

Lissy & Ors. v. Inasu & Anr.

Case brief

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Lissy & Ors. v. Inasu & Anr.

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