Partly allowed

S.a.Velayudhan v. Arjunan.K.L

Kerala HC19 Nov 2013MACA/570/2011

Case brief

AI extract

What is this about?

The High Court of Kerala enhanced compensation awarded by the Tribunal in a motor accident claim appeal. The court applied the multiplier of 11 from Sarla Verma for loss of earning capacity, increased pain and suffering and amenities awards, and granted additional compensation for hospitalization expenses, totaling an enhancement of 44,700 rupees with 9% interest.

What did the court decide?

Appellant entitled to additional compensation of 44,700/- over and above the Tribunal award, with interest at 9% per annum; 3rd respondent directed to deposit the amount within two months.

S.a.Velayudhan Vs Arjunan.K.L — 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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TUESDAY, THE 19TH DAY OF NOVEMBER 2013/28TH KARTHIKA, 1935

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MACA.No. 570 of 2011 ( )

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OPMV.107/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM.

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APPELLANT/CLAIMANT:

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S.A. VELAYUDHAN, AGED 55, S/O.AYYAPPAN, SRAKKATT HOUSE,, SOUTH PARAVOOR DESOM, MANAKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.

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BY ADVS.SRI.C.K.GOVINDAN, SRI.L.P.ARAVINDAKSHAN.

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RESPONDENTS/RESPONDENTS:

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1. ARJUNAN K.L., AGED 47, S/O.LAKSHMANAN, KALAPARAMBU HOUSE, PUTHUVYPU P.O., ERNAKULAM DISTRICT-682 504.

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2. OMERSON, S/O.DEVASSEY,

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7/407 A, (15/421), THUNDATHIL HOUSE, PUTHUVYPU P.O., PIN-682 504.

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3. THE NATIONAL INSURANCE COMPANY LTD., WISDOM COLLEGE BUILDING, CHITTOOR ROAD, ERNAKULAM, KOCHI-16.

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R3 BY ADV. SRI.E.M.JOSEPH, SC.

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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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rs.

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S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.

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

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M.A.C.A.No. 570 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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S.Siri Jagan, J.:

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The claimant in O.P(M.V.).No.107/2006 before the Motor Accidents Claims Tribunal, Ernakulam, is the appellant herein. He filed the O.P. claiming compensation for the injuries sustained by him in an accident caused by the negligent driving of a vehicle owned and driven by respondents 1 and 2 and insured with the 3^rd respondent. The Tribunal, after finding negligence on the part of the driver of the vehicle, awarded compensation under various heads as follows:

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	Head of claim	Amount awarded `
1	Loss of earning	12,000.00
2	Transportation, extra nourishment & damage to clothings	5,400.00
3	Medical expenses	6,750.00
4	Attendant expenses	6,000.00
5	Pain and suffering	20,000.00
6	Loss of amenities and enjoyment in life	10,000.00
7	For permanent disability and future earnings	18,000.00
	Total	78,150.00

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Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has filed this appeal seeking enhanced compensation.

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m.a.c.a.570/11 - : 2 :-

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The first contention raised by the appellant is that the Tribunal has fixed the monthly income of the appellant as 3,000/- as against the claim of 4,000/-, which is on the lower side. It is further submitted that while calculating loss of earning capacity, the Tribunal adopted a multiplier of 5, which is wrong in view of the decision of the Supreme Court in Sarla Verma v. Delhi Transport Corporation , 2009 ACJ 1298 (SC). The appellant submits that the appellant was 50 years old at the time of the accident on 6.7.2005 and the multiplier applicable is 11. It is submitted that the appellant suffered 10% disability and, therefore, the compensation for loss of earning power should be enhanced proportionately. The appellant points out that from 6.7.2005 the appellant was under treatment till 16.12.2005 as evidenced by Exts.A9 to A12 discharge certificates, which shows that the appellant was regularly in and out of hospital on those days. Going by those certificates, the appellant was unable to work for at least five months and, therefore, the appellant should have been given compensation for loss of earnings commensurate with the same, which the Tribunal had not done. The appellant further submits that the appellant was hospitalised for 54 days, for which, the bystander's expenses awarded is only ` 6,000/-. The appellant seeks enhancement under the heads,

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m.a.c.a.570/11 - : 3 :-

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'loss of amenities in life' and 'pain and sufferings' also.

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The learned Standing Counsel for the insurance

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company argues for sustaining the award.

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We have considered the rival contentions in detail.

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Despite the persuasive arguments of the learned counsel for the appellant, we are not inclined to enhance the monthly income of the appellant. According to the appellant, he was a fisherman by profession. He did not adduce any acceptable evidence in support of his claim regarding avocation or income, although he claims to have filed a proof affidavit. He had not produced any document in support of his contention that he was a fisherman by profession. In the above circumstances, the fixation of monthly income of 3,000/- is confirmed. But, as rightly pointed out by the learned counsel for the appellant, the multiplier applicable is 11 going by the decision in **Sarla Verma's case** (supra). Recalculating the compensation for loss of earning capacity on those parameters, the appellant is entitled to 39,600/- (` 3000 x 12 x 11 x 10%) towards loss of earning

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capacity as against 18,000/- awarded by the Tribunal. The difference would be 21,600/-. Considering the long period of hospitalization and the injuries suffered by the appellant, we increase the compensation for pain and suffering to ` 25,000/-

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m.a.c.a.570/11 - : 4 :-

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from 20,000/-. Considering the long period of treatment, we are inclined to grant the appellant six months' loss of earnings at the rate of 3,000/- per month, which would come to 18,000/instead of 12,000/-. We are also inclined to enhance the compensation for loss of amenities in life to 20,000/- from 10,000/-. The appellant is entitled to bystander's expenses at the rate of 150/- per day for 54 days, which would come to 8,100/- instead of 6,000/-. Adding together, the appellant would be entitled to additional compensation of 44,700/- over and above what has been awarded by the Tribunal. This amount would carry interest at the rate of 9% per annum from the date of the claim petition till date of payment. The 3^rd respondentinsurance company is directed to deposit that amount also within two months.

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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/-

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sdk+ K.RAMAKRISHNAN, JUDGE ///True copy///

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P.A. to Judge

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m.a.c.a.570/11 - : 5 :-

S.a.Velayudhan v. Arjunan.K.L

Case brief

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S.a.Velayudhan v. Arjunan.K.L

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