Partly allowed

Sleeba Paul v. Unnikrishnan P.K. and Others

Kerala HC19 Nov 2013MACA/566/2011

Case brief

AI extract

What is this about?

Kerala HC enhanced motor accident compensation awarded by the Tribunal. The Court re-fixed monthly income to Rs. 3,500, treated 14% disability as occupational, included physiotherapy in medical expenses, and increased relief on loss of earning capacity, amenities, and attendant expenses to Rs. 76,500 additional.

What did the court decide?

Additional compensation of Rs. 76,500 awarded with 9% interest from date of petition; two months' time granted to insurance company to deposit the amount.

Sleeba Paul Vs Unnikrishnan P.K. and Others — 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 & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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TUESDAY, THE 19TH DAY OF NOVEMBER 2013/28TH KARTHIKA, 1935

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MACA.No. 566 of 2011 ( )

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[AGAINST THE AWARD IN OPMV 1640/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL,PERUMBAVOOR DATED 07-12-2010]

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APPELLANT/CLAIMANT:

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SLEEBA PAUL, S/O. T.P.PAULOSE, THURUTHUMMEL HOUSE, NJARALLUR, KIZHAKKAMBALAM, ERNAKULAM DISTRICT.

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BY ADV. SRI.M.P.MOHAMMED ASLAM

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RESPONDENT(S)/RESPONDENTS:

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1. UNNIKRISHNAN P.K., S/O. KRISHNAN, 11/385, PANAYACHERY HOUSE, KUMMANODEKARA PATTIMATTAM P.O., ERNAKULAM DISTRICT, PIN-683 562.

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2. SURESH KUMAR, S/O. NARAYANAN, KANIYATHI HOUSE, KUMMANODEKARA, PATTIMATTAM P.O., ERNAKULAM DISTRICT, PIN-683 562.

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3. THE ORIENTAL INSURANCE COMPANY LIMITED., BRANCH OFFICE, JEWEL ARCADE, LAYAM ROAD, COCHIN-682 811.

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R3 BY ADV. SRI.TITUS MANI

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.

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==================

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M.A.C.A.No. 566 of 2011

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==================

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Dated this the 19^th day of November, 2013 J U D G M E N T

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K.Ramakrishnan, J.:

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The claimant in O.P.(M.V).No.1640/2007 on the file of the Motor Accidents Claims Tribunal, Perumbavoor, is the appellant herein. The appellant filed the application for compensation for the injuries and consequential disability suffered by him in a motor vehicle accident caused on account of the rash and negligent driving of the 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 occurred due to negligent driving of the vehicle by the 2^nd respondent and awarded a total compensation of ` 1,35,117/on various heads as follows:

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	Head of claim	Amount awarded `
1	Loss of earnings	12,000.00
2	Transportation to hospital	1,500.00
3	Extra nourishment	2,000.00
4	Damage to clothing etc.	250.00
5	Attendant expenses	1,900.00
6	Medical expenses	50,187.00
7	Pain and sufferings	20,000.00
8	Loss of amenities etc.	12,000.00
9	Permanent disability	35,280.00
	Total	1,35,117.00

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m.a.c.a.566/11 - : 2 :-

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Dissatisfied with the quantum of compensation awarded, the appellant has filed this appeal before this Court seeking enhancement of compensation.

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

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The learned counsel for the appellant submitted that the appellant was aged 43 years and a welder-cum-contractor and getting 6,000/- per month. But the Tribunal has arbitrarily fixed his monthly income as 3,000/-, which is palpably low. Further, the doctor assessed his disability as 14%. But the Tribunal has reduced the same to 7% for the purpose assessing compensation under the head, 'loss of earning capacity', which is also unsustainable in law. Being a welder, he will have to squat and he is having difficulty to squat on account of the disability and this will affect his earning capacity to a great extent. So the Tribunal ought to have accepted the entire disability for the purpose of assessing compensation under the head, 'loss of earning capacity'. Similarly, the Tribunal has reduced ` 3,204/from the medical expenses on the ground that since it was paid for physiotherapy, it cannot be treated as medical expenses,

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m.a.c.a.566/11 - : 3 :-

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which is also not correct. The amount awarded under the heads, 'pain and suffering', 'loss of earning' and 'loss of amenities in life' are also on the lower side. So the appellant is entitled to enhancement on all heads is his contention.

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On the other hand, the learned counsel for the insurance company submitted that the Tribunal has considered all the aspects in the right perspective and awarded reasonable compensation under all heads. The total compensation awarded is also just and proper and it is in commensurate with the nature of injury and disability suffered by him. Therefore, no interference is called for at the hands of this Court is the contention raised by the learned counsel for the insurance company.

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

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The case of the appellant was that he was a weldercum-contractor and getting ` 6,000/- per month at the time of the accident. In the first information statement, it was specifically stated by him that he was a welder by profession and the accident occurred at the time when he was returning to his

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m.a.c.a.566/11 - : 4 :-

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house from the work place. That fact was not discarded by the Tribunal. So, the fact that he is a welder by profession has to be accepted. It is true that no evidence was adduced on the side of the appellant to prove his actual income. But considering the fact that the accident occurred in the year 2007 and he was a welder profession, it can only be presumed that he will be getting at least 3,500/- per month. So, we are inclined to re-fix the monthly income of the appellant as 3,500/-. It is seen from the documents produced that he was under treatment for nearly five months. But the Tribunal has taken three months for the purpose of assessing compensation under the head, 'loss of earning'. We are inclined to take six months for this purpose and award 21,000/- under the head, 'loss of earning' instead of 12,000/awarded by the Tribunal.

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The disability certificate issued by the doctor shows

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that he is having following disabilities:

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“1. Right knee - Flexion possible up to 80-90 degree from 160170 degree extension.

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Not able to squat.

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Chronic discharging ulcer, upper part of right leg.

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X-ray of right leg taken on 1.4.2009 shows fracture proximal tibia united. Lateral joint space of right knee joint reduced.”

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m.a.c.a.566/11 - : 5 :-

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The doctor certified his disability as 14% and it is noted as whole body permanent disability. He is not able to squat and there is restriction of knee movement as well. Being a welder, this may have impact on his working capacity to a greater extent. Therefore, we are inclined to take 14% disability assessed by the doctor as occupational disability for the purpose of assessing compensation under the head, 'loss of earning capacity'. If a recalculation is made by taking his monthly income as 3,500/and 14% occupational disability, he will be entitled to get an amount of 82,320/- under the head, 'loss of earning capacity' instead of ` 35,280/- awarded by the Tribunal and we award this amount under that head.

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He is aged 43 years at the time of the accident. He will have to live with this difficulty for the remaining period of his life. The difficulty noted in the certificate will have some impact on his personal life as well. So the amount of 12,000/awarded by the Tribunal under the head, 'loss of amenities in life' is also on the lower side and we enhance the same to 25,000/-. Though the appellant was treated as inpatient for nearly 40 days including the period of his physiotherapy

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m.a.c.a.566/11 - : 6 :-

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treatment, the Tribunal has taken only 19 days for the purpose of awarding compensation under the head, 'bystander's expenses'. We are taking 40 days for this purpose and we award 6,000/- @ 150/- per day under the head 'bystander's expenses' instead of 1,900/- awarded by the Tribunal. Similarly, the Tribunal has discarded the amount of 3,204/- spent by the appellant towards physiotherapy charges, as according to the Tribunal, it will not form part of the treatment charges, which is unsustainable in law. So we award the amount of 3,204/- also under the head, 'medical expenses' over and above what has been awarded by the Tribunal under that head. We do not find any reason to interfere with the amounts awarded by the Tribunal under the other heads as we feel that the amounts awarded by the Tribunal under the other heads are just and proper. In all, the appellant will be entitled to get an additional 76,344/-, which we rounded of to ` 76,500/-, over and above what has been awarded by the Tribunal, which the 3^rd respondent-insurance company is liable to pay with 9% interest from the date of petition till payment. Two months' time is granted to the insurance company to deposit this amount as well.

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m.a.c.a.566/11 - : 7 :-

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With the above modification of the impugned award of the

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Tribunal, the appeal is disposed of.

Sd/-

S.SIRI JAGAN, JUDGE

Sd/-

sdk+ K.RAMAKRISHNAN, JUDGE

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///True copy///

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P.A. to Judge

Sleeba Paul v. Unnikrishnan P.K. and Others

Case brief

What is this about?

What did the court decide?

Sleeba Paul v. Unnikrishnan P.K. and Others

Case brief

What is this about?

What did the court decide?

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