Allowed

E.A. Philipose v. Raju

Kerala HC22 May 2013MACA/2200/2012

Case brief

AI extract

What is this about?

The High Court allowed the motor accident claims appeal, finding the Tribunal's award of Rs. 35,600 insufficient. The Court enhanced the compensation to Rs. 46,700 (an additional Rs. 11,100 plus interest) by raising awards for medical expenses, bales, transport, pain and suffering, and loss of amenities.

What did the court decide?

Appellant awarded an additional compensation of Rs. 11,100 with interest at 7.5% per annum, bringing the total compensation to Rs. 46,700.

E.A. Philipose Vs Raju — 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 V.K.MOHANAN

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WEDNESDAY, THE 22ND DAY OF MAY 2013/1ST JYAISHTA 1935

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MACA.No. 2200 of 2012 ()

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AGAINST THE ORDER/JUDGMENT IN OPMV 1792/2003 of ADDL.D.C.-II & MACT, MAVELIKKARA DATED 31-07-2012

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APPELLANT/PETITIONER IN O.P.(M.V) NO.1792/2003:

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E.A. PHILIPOSE

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S/O.ABRAHAM, PULIPPARA PUTHEN PURACKAL NARANGANAM PANCHAYATH WARD-1, NARANGANAM VILLAGE.

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BY ADVS.SRI.R.LAKSHMI NARAYAN

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SMT.R.RANJANIE

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RESPONDENTS/RESPONDENTS IN O.P.(M.V)NO.1792/2003:

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RAJU

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S/O.DANIEL, PULIYAM MADATHIL VEEDU THUMBAMON PANCHAYATH WARD - 8, NADUVILE MURI PANDALAM THEKKEKARA VILLAGE. 689 501.

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THE MANAGER

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NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE PATHANAMTHITTA. 689 645.

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R2 BY ADV. SRI.K.C.SANTHOSHKUMAR

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R2 BY ADV. SRI.A.A.ZIYAD RAHMAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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M.A.C.A.No.2200 of 2012

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Dated this the 22^nd day of May, 2013

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JUDGMENT

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Aggrieved by the award dated 31.07.2012 in O.P. (M.V.)No.1792/2003 of the court of the Motor Accidents Claims Tribunal, Mavelikkara, claimant therein preferred this appeal stating that he is entitled to get the entire compensation as sought for in the claim petition.

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

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O.P.(M.V.)No.1792/2003 was filed before the

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Motor Accidents Claims Tribunal, Mavelikkara under Section 166 of the Motor Vehicles Act, by the claimant claiming a total compensation of `.1,00,000/- for the injuries sustained by him on 16.08.2003. According to the claimant, as a result of the rash and negligent driving of the first respondent, the car driven by him hit against the motorcycle of which the appellant was the rider. During the trial before the Tribunal, the claimant was examined as PW1 and Annexures A1 to A8 were marked. No evidence was adduced from the

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M.A.C.A.No.2200 of 2012

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side of the respondents. The vehicle bearing registration No.KLY/261 driven by the first respondent is covered by the insurance policy issued by the second respondent. The accident was taken place at about 11.30 a.m. on 16.08.2003 while the claimant riding motorcycle bearing registration No.KL-4B/115. Immediately after the incident, the claimant was taken and admitted at Pushpagiri Hospital, Thiruvalla and treated there. It is relevant to note that the accident is not disputed and as there was a valid policy issued by the second respondent, the second respondent is liable to indemnify the insured. Though in the claim petition, the claim was for a total sum of .1,00,000/-, what awarded is only an amount of .35,600/- and therefore, the present appeal is filed, dissatisfied with the compensation amount fixed by the Tribunal.

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As the accident is admitted, I am of the view that this Court need not go into other aspects of the case and the question to be considered is whether the compensation fixed by the Tribunal under various heads is sufficient or not. Thus

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M.A.C.A.No.2200 of 2012

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it can be seen that towards the loss of earning, in the absence of any evidence, following the decision reported in Laxmi Devi and Otrs v. Muhammad Tabbar and Otrs (2008 ACJ 1488), the Tribunal has fixed .3,000/- as the monthly income of the claimant. Though the counsel for the appellant contended that the appellant was conducting catering service as self employment, no recognised or legal evidence is adduced to prove his earnings. Therefore, I find no reason to interfere with the amount awarded by the Tribunal under the head of loss of earnings. Ext.A7 is the discharge summary which shows that the claimant had undergone treatment for a period of six days from 16.08.2003 to 22.08.2003 for the injuries including zygoma fracture as endorsed in Ext.A7. Ext.A8 series of medical bills produced are covering a total sum of .22,954/-. The Tribunal has specifically found that out of the medical bills, bill Nos.1 to 15 are for .4,553/- alone bears the paid/cash received seal. As far as detailed bill No.16 for an amount of .9,425/-is

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M.A.C.A.No.2200 of 2012

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concerned, it shows the entire expense covered by bill Nos.1 to 15 and bill No.17. Thus the court below fixed only .9,425/- altogether towards the medical expenses and extra nourishment. According to me, considering the nature of injuries sustained by the appellant, the said amount requires modification and a sum of .12,000/- is fixed instead of .9,500/-. Thus on that account the appellant is entitled to get enhancement of .2,500/-. Considering the present cost of living, according to me, the bystanders expenses fixed by the court below are inadequate and the sum can be fixed as .200/- per day and thus in this regard the appellant is entitled to get an additional compensation of .600/-. Similarly transportation charges fixed are not fare, which requires enhancement and the same can be fixed as .750/-. For pain and sufferings, Tribunal fixed only .15,000/-, which according to me is insufficient and to meet the ends of justice, the amount is enhanced to the tune of .20,000/-. Under the head of loss of amenities and the convenience, etc. the court below fixed only .5,000/-, which according to me,

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M.A.C.A.No.2200 of 2012

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is insufficient. Considering the zygoma fracture, the said amount can be enhanced to the tune of .7,500/-. Similarly, item number 11 requires enhancement and the same can be fixed as .750/-. Thus according to me, the appellant is entitled to get a total compensation of .46,700/-. But the Tribunal has fixed only a sum of .35,600/-.

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In the result, the appeal is allowed modifying the award which is challenged in this appeal and declared that the appellant is entitled to get an additional compensation of .11,100/- with the interest at the rate of 7.5%. Accordingly the second respondent is directed to deposit an additional compensation amount of .11,100/- with 7.5% interest per annum in the Tribunal, within three months from today.

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The appeal is disposed of accordingly.

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Sd/-

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V.K.MOHANAN, JUDGE

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M.A.C.A.No.2200 of 2012

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E.A. Philipose v. Raju

Case brief

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E.A. Philipose v. Raju

Case brief

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