Allowed

Sivanandan v. Saleem

Kerala HC20 Nov 2013MACA/917/2011

Case brief

AI extract

What is this about?

In this motor accident appeals, the High Court enhanced the appellate compensation awarded to the claimant for loss of earning capacity, loss of amenities, and pain and suffering, while recalculating monthly income and disability percentage based on age and profession.

What did the court decide?

Enhanced compensation awarded on loss of earning capacity, loss of amenities, and pain and suffering, totaling an additional 63,320/- with 9% interest.

Sivanandan Vs Saleem — 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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WEDNESDAY, THE 20TH DAY OF NOVEMBER 2013/29TH KARTHIKA, 1935

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MACA.No. 917 of 2011 ( ) ------------------------AGAINST THE AWARD IN OPMV 650/2007 of MACT,IRINJALAKUDA DATED 30-12-2007

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PETITIONER/APPELLANT :

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--------------------

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SIVANANDAN, AGED 43 YEARS, S/O.KUTTAPPAN VAIDYAR, KANDANATTU HOUSE, KAIPAMANGALAM DESOM AND VILLAGE P.O. KODUNGALLUR TALUK, THRISSUR DISTRICT.

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BY ADVS.SRI.P.V.BABY

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SRI.A.N.SANTHOSH

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RESPONDENTS.RESPONDENTS 4 TO 6 :

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1. SALEEM, S/O.ABDUL KHADER, 417/11, MATHILAKATH VEETTIL HOUSE, KAIPAMANGALAM P.O. 680681.

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2. MUHAMMED SHUHAIB,S/O.KUNJUMUHAMMED, MAMMASRA ILLATH HOUSE, CHALINGAD, KAIPAMANGALAM P.O. 680681.

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3. NATIONAL INSURANCE CO. LTD. NORTH PARAVUR - 683513.

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R3 BY ADV. SRI.S.K.AJAY KUMAR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-11-2013, 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. 917 of 2011

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

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Dated this the 20^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. 650/2007 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, 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 negligent driving of three vehicles involved in the accident respectively insured with the 3^rd , 6^th and 9^th respondents in the lower court. After considering the evidence on record, the Tribunal found that the accident occurred due to the negligent driving of the vehicle by the 5^th respondent, owned by the 4^th respondent and insured with 6^th respondent, who are shown as respondents 1 to 3 in this appeal and awarded a total compensation of ` 55,304/on various heads as follows:

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	Head of claim	Amount awarded `
1	Loss of earning	6,000.00
2	Medical & miscellaneous expenses	25,024.00
3	Bystander's expenses	600.00
4	Transportation expenses	1,000.00
5	Pain and suffering	10,000.00
6	Loss of disability	7,680.00
7	Loss of amenities & convenience etc.	5,000.00
	Total	55,304.00

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m.a.c.a.917/11 - : 2 :-

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

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

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The learned counsel for the appellant submitted that the appellant was aged 39 years and conducting a medical shop getting 6,000/- per month at the time of the accident. But the Tribunal has arbitrarily taken only 2,000/- as the monthly income, which is palpably low. Further, the doctor, who treated the appellant, issued Ext.A5 certificate certifying 8.5% whole body disability. But the Tribunal has taken only 2% disability for the purpose of assessing compensation under the head, 'loss of earning capacity'. On account of the injuries and disability suffered, he is having difficulty to hold and lift heavy articles. But the Tribunal has awarded only ` 5,000/- under the head, 'loss of amenities in life' which is also on the lower side. The amount awarded under the heads, 'pain and suffering' is also very low. According to the learned counsel of the appellant, the appellant is entitled to enhancement on all heads.

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On the other hand, the learned counsel for the insurance company argued to support the impugned award.

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m.a.c.a.917/11 - : 3 :-

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

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The case of the appellant is that he was conducting a medical shop and getting 6,000/- per month at the time of accident. He was aged only 39 years at the time of the accident. He had not produced any evidence to prove his actual income. But considering the fact that the accident occurred in November, 2006, and he was aged only 39 years and conducting a medical shop, we feel that a person of that caliber 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/- per month. If 3,500/- is taken as the monthly income of the appellant, then he will be entitled to get 10,500/- under the head, 'loss of earning' instead of 6,000/- awarded by the Tribunal.

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7. The appellant suffered following injuries:

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“..... injury on right hand lacerated full thickening wound 2^nd web space, cut injury transverse metacarpal ligament, fracture head of 3^rd metacarpal....”

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The doctor, who issued Ext.P5 certificate, certified that he is having 8.5% whole body disability. That shows that he is having some difficulty in holding and lifting heavy articles and folding his right hand as well. This may have some impact on his earning capacity. So the Tribunal was not justified in taking only 2% for

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m.a.c.a.917/11 - : 4 :-

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the purpose of assessing compensation under the head, 'loss of earning capacity' and we enhance the same to 5%. The proper multiplier applicable to the age group of 39 years as per the decision in Sarla Verma v. Delhi Transport Corporation , 2009 ACJ 1298 (SC) is 15 and not 16 as taken by the Tribunal. If a re-calculation is made on these inputs, the appellant will be entitled to get 31,500/- ( 3500 x 12 x 15 x 5%) instead of ` 7,680/- awarded by the Tribunal under the head, 'loss of earning capacity' and we award this amount under that head.

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Considering the nature of disability mentioned in Ext.A5 and also considering the age and the fact that he will have to be with this difficulty for the remaining period of his life and this may have some impact on his day to day activities as well, we feel that the amount of 5,000/- awarded by the Tribunal under the head, 'loss of amenities in life' is also on the lower side and we enhance the same to 30,000/-. The amount awarded under the head, 'pain and suffering' considering nature of injures and treatment undergone appears to be on the lower side and we enhance the same to 20,000/- from 10,000/-. Though persuasive arguments were made by the learned counsel for the appellant to get enhancement on other heads, we are not

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m.a.c.a.917/11 - : 5 :-

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inclined to enhance any amount under the other heads, as we feel that the amounts awarded under the other heads are just and proper. In all, the appellant is entitled to additional compensation of ` 63,320/- over and above what has been awarded by the Tribunal, which the 3^rd respondent-insurance company in this appeal is liable to pay with 9% interest from the date of claim petition till payment. Two months' 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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sdk+

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Sd/S.SIRI JAGAN, JUDGE Sd/K.RAMAKRISHNAN, JUDGE

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///True copy///

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P.A. to Judge

Sivanandan v. Saleem

Case brief

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Sivanandan v. Saleem

Case brief

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