Allowed

Kunjurajan v. P.T.R.Arumugham

Kerala HC11 Nov 2013MACA/561/2005

Case brief

AI extract

What is this about?

The High Court enhanced compensation awarded by the Motor Accidents Claims Tribunal to the appellant for injuries sustained in a motor vehicle accident, modifying the amounts for pain and suffering, loss of amenities, future treatment, and loss of earning capacity based on 20% disability.

What did the court decide?

The appellant was awarded an additional compensation of Rs. 74,000/- with 9% interest on Rs. 64,000/- from the date of claim petition till payment.

Kunjurajan Vs P.T.R.Arumugham — Money Laundering | 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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MONDAY, THE 11TH DAY OF NOVEMBER 2013/20TH KARTHIKA, 1935

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MACA.No. 561 of 2005 (C)

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AGAINST THE AWARD IN OP(MV) 3048/2000 MACT,THRISSUR DATED 22.11.2004

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APPELLANT/PETITIONER:

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KUNJURAJAN, S/O.VELAYUDHAN, CHENGAL HOUSE, KARINKARAPPULLY P.O., PALAKKAD DISTRICT.

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BY ADV. SRI.P.V.CHANDRA MOHAN

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RESPONDENT(S)/RESPONDENTS:

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1. P.T.R.ARUMUGHAN, S/O.RAMASWAMI MUTHALIYAR, 24/685, KAYATHUPARAMBIL HOUSE NOORNI, PALAKKAD DISTRICT.

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2. NARAYANAN, S/O.MUTHU KARAPPAN, HOUSE NO. 2/79, ELAYAMPUTHUR, UDUMELPETTA COIMBATORE.

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3. THE NEW INDIS ASSURANCE COMPANY LIMITED, 238/239, POLLACHI ROAD, UDUMELPETTA.

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4. K.S.SURESH BABU, S/O.SWAMINATHN, KUTTUPATHA HOUSE, MUNDUR, PALAKKAD DISTRICT.

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R,R.3 BY ADV. SRI.A.C.DEVY

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

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S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.

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MACA.No. 561 of 2005

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Dated this the 11^th day of November, 2013

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JUDGMENT

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K.Ramakrishnan,J.

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The claimant in OP(MV) No.3048/2000 on the file of Motor Accidents Claims Tribunal, Thrissur is the appellant herein. The appellant filed the application for compensation for the injuries and consequential disabilities suffered by him in a motor vehicle accident caused on account of the rash and negligent driving of a vehicle by the 2^nd respondent, owned by the 1^st respondent and insured with the 3^rd respondent. After considering the evidence, on record, the Tribunal found that the accident was caused by the negligent driving of the vehicle by the 2^nd the respondent and awarded a total compensation of .96,400/- under various heads₹ as follows:-

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MACA.No. 561 of 2005

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: 2 :

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Loss of earnings	12,000/-
Medical expenses including allied expenses like transport to hospital and bystanders expense	11,000/-
Loss sustained due to damages tot he auto	10,000/-
Compensation forpain and suffering	13,000/-
Loss of amenities of life	12,000/-
Compensation for continuing permanent disability	38,400/-
Grand Total	96,400/-

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Dissatisfied with the quantum of compensation awarded, the appellant filed the above appeal before this court claiming enhancement.

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Heard counsel for the appellant and counsel for the

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insurance company.

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Counsel for the appellant submitted that the appellant was aged 35 years and working as manager cum tailor in a shop belonging to PW1 and he had produced Exhibit A18 to prove that he was getting .4000/- as his monthly₹ income, but the Tribunal has taken .2000/- which is palpably₹ low. Further he sustained severe injuries including three fractures and he was treated as in-patient for 52 days and suffered 20% disability, but the Tribunal has taken only 10%

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MACA.No. 561 of 2005 : 3 :

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disability for assessing compensation under the head of “loss of earning capacity” which is not correct. Considering the nature of the injuries sustained and the period of treatment undergone etc, the amounts awarded under the heads “pain and sufferings and loss of amenities in life” are also on the lower side. The appellant has produced medical bills for more than .11,000/-₹ but the Tribunal awarded .11,000/- under the head “medical₹ expenses” including miscellaneous expenses, bystander expenses etc which is also not correct. No amount was awarded for future treatment though he will have to undergone another operation for removing implants. So, according to him, the appellant is entitled to get enhancement on all heads.

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On the other hand, the counsel for the insurance company submitted that the evidence of PW1 is not sufficient to prove that the appellant was getting .4000/-per month.₹ Further, the Tribunal has considered all the aspects and rightly taken 10% as his occupational disability and the total amount of compensation awarded is just and proper. So, the appellant is not entitled to any enhancement, according to the counsel for

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MACA.No. 561 of 2005 : 4 :

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the insurance company.

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We have considered the rival contentions of both

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parties in detail.

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The fact that the appellant sustained injuries in the

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accident is not disputed. It is seen from the award of the Tribunal that he sustained comminutted fracture trochanter right, compound comminutted fracture shaft of femur right, fracture patella right, multiple comminutted fracture on right leg and other injuries . It is also seen from the records that he was treated as in-patient for 52 days on various occasions and underwent three operations. So considering these aspects, the amount of .13,000/- awarded by the Tribunal under the₹ head”pain and suffering”appears to be on the lower side and we enhance the same to .20,000/-. ₹

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It is true that the appellant has produced Exhibit A18 and examined PW1 to prove that the appellant was working as manager-cum-tailor in the establishment called “Chiffon Enterprises”. But the Tribunal has considered his evidence and come to the conclusion that it is insufficient to hold that he was

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MACA.No. 561 of 2005 : 5 :

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drawing a salary of Rs.4000/-per month. During 2000 a tailor of 35 years earning .2000/- per month cannot be said to be₹ low income. So, the Tribunal was perfectly justified in fixing the monthly income of appellant as Rs.2000/- and we do not propose to interfere with the same.

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The appellant had produced a disability certificate

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issued by the Doctor and marked as Exhibit A 21, which shows that he is having the following difficulties.

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He is walking with the limping towards the right side.

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“1. Adherent scar over the Trochanter and lateral

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aspect of the Thigh(Rt.) 2. Flexion of the Rt.Hip --------60⁰ 3. Abduction of the Rt.Hip --------30⁰ 4. Abduction of the Rt.Hip. --------20⁰ 5. External rotation of the Rt. --------15⁰ 6. Internal rotation of the Rt. --------15⁰ 7. Rt.Knee flexion. --------110⁰ 8. Rt.Knee extension 15⁰ short of full extension. 9. Shortening of the Rt.Lower limb ----------6cm. 10. abnormal mobility noted in the shaft of femur,

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indicating non union of the femur#

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He may require an open bone grafting/lliizarow method of

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fixation for the non union and for the shortening of the right lower limb.”

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MACA.No. 561 of 2005 : 6 :

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The Doctor has assessed 20% permanent disability. Considering the nature of disability mentioned in Exhibit A 21, for a tailor, it may have great impact. So, the Tribunal was not justified in reducing the disability to 10% for the purpose of assessing compensation under the head of “loss of earning capacity”. So, we are inclined to take 20% disability for the purpose of assessing compensation under the head “loss of earing capacity”. If a re-calculation is made by taking 20% occupational the appellant will be entitled to get .76,800/-₹ (2000x12x16x20%) instead of ₹.38,400/- awarded by the Tribunal and we award this amount under the head.

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The appellant had produced medical bills for more than Rs.11,000/- but the Tribunal has awarded only Rs.11,000/-under the head “medical expenses' including allied expenses like transport and bystander expenses etc. It is seen from the documents produced that he was treated as in-patient for 52 days and he was treated in a private hospital as well. So, considering these aspects, the amount of Rs.11,000/awarded under the head “medical expenses including allied

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MACA.No. 561 of 2005 : 7 :

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expenses like transport to hospital and bystander's expense” it appears to be on the lower side and we take this amount towards medical expenses alone. We award .2600/-, for₹ bystander's expenses .1000/-for transportations expenses₹ and .2000/- for extra nourishment. The appellant sustained₹ 20% disability and he was aged only 35 years and he will have to live with this difficulty for the remaining period of his life. This will have great impact on his personal life as well. So, considering these aspects the amount awarded under the head “loss of amenities” is on the lower side and we enhance the same to .25,000/-. It is seen from the document produced₹ that he has to undergo another operation for removal of implants. So he will have to naturally incur future treatment expenses as well. No amount was awarded under the head 'future treatment'. So, we are inclined to award .10,000/-₹ under the head of 'future treatment'. Though persuasive arguments were made by the counsel for the appellant for enhancing compensation under other heads, we are not inclined to enhance any amount under other heads as the amounts of

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compensation awarded by the Tribunal under this heads are just and proper.

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In all, the appellant will be entitled to get an additional compensation of .74,000/-over and above what has been₹ awarded by Tribunal which the 3^rd respondent insurance company is liable to pay with 9% interest on .64,000/-₹ (excluding .10,000/-awarded for future treatment) from the₹ date of claim petition till 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/- S.Siri Jagan , Judge.

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Sd/- K.Ramakrishnan, Judge

//True Copy//

PA to Judge

rmm

MACA.No. 561 of 2005 : 9 :

Kunjurajan v. P.T.R.Arumugham

Case brief

What is this about?

What did the court decide?

Kunjurajan v. P.T.R.Arumugham

Case brief

What is this about?

What did the court decide?

What the court decided

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