Allowed

Ajayakumar v. Manoj

Kerala HC10 Dec 2014MACA/1477/2012

Case brief

AI extract

What is this about?

The Kerala High Court enhanced compensation awarded to a 23-year-old daily labourer injured in a motor accident. The court increased disability compensation, medical expenses, and added specific awards for disfigurement and loss of marriage prospects, raising the total from 1.89 lakhs to 4.41 lakhs.

What did the court decide?

The appeal was allowed, and total compensation enhanced to Rs. 4,41,700/- with interest, including specific awards for disfigurement and loss of marriage prospects.

Ajayakumar Vs Manoj — Motor Accident Claims | Kerala HC (2014)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR

¶4

¶5

THE HONOURABLE SMT. JUSTICE P.V.ASHA

¶6

WEDNESDAY, THE 10TH DAY OF DECEMBER 2014/19TH AGRAHAYANA, 1936

¶7

MACA.No. 1477 of 2012 ()

¶8

AGAINST THE AWARD IN OPMV 1212/2005 of MACT,ALAPPUZHA.

¶9

APPELLANT/PETITIONER:

¶10

AJAYAKUMAR,

¶11

S/O KUMARAN, PADINJARETHALEKETTU VEEDU, ARYAD PO WARD 4, ALAPPUZHA.

¶12

BY ADV. SRI.T.B.SARASAN

¶13

RESPONDENTS/RESPONDENTS:

¶14

1. MANOJ, S/O SARVOTHAMAN, KIZHAKKE ALAPPATTU VEEDU CHERTALA SOUTH PO, S.S.P.WARD 10, CHERTHALA. 688 524

¶15

2. GIRIJA SASI, ERAMATHUVELIYIL VEEDU, NEAR BOYS H.S.CHERTHALA. 688 524

¶16

3. THE ORIENTAL INSURANCE CO. LTD., REPRESENTED BY ITS BRANCH MANAGER, ALEPPEY. 688 001

¶17

R3 BY ADV. SRI.VPK.PANICKER

¶18

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶19

T.R.RAMACHANDRAN NAIR & P.V.ASHA, JJ.

¶20

¶21

M.A.C.A.No.1477 OF 2012

¶22

¶23

Dated this the 10^th day of December, 2014

¶24

JUDGMENT

¶25

Ramachandran Nair, J.

¶26

The injured in a motor vehicle accident is the appellant herein aggrieved by the quantum of compensation.

¶27

We heard the learned counsel for the appellant and the learned counsel for the Insurance Company.

¶28

The total claim raised by the appellant is to the tune of `2,93,000/-. The accident occurred on 24/12/2004 . The appellant

¶29

was travelling in a motor cycle bearing Reg.No.KL-4/M-3226 as a pillion rider on the Cherthala-Alappuzha NH road and the accident occurred in front of Aswathy Petrol Pump, Cherthala. The offending vehicle is a car bearing Reg.No.KL -4/N 7205 which came from the opposite direction and hit against the motor cycle, as a result of which the appellant fell down on the road.

¶30

Because of serious injuries, he was taken to KVM Hospital,

¶31

MACA No.1477/2012 2

¶32

Cherthala from where he was referred to the Medical College Hospital, Alappuzha and further the claimant was at Medical College, Kottayam. It is stated that he underwent treatment for two months as inpatient, surgery was done and POP cast was applied for three months.

¶33

The learned counsel for the appellant invited our attention to the observations made by the Tribunal after verifying the various aspects and at the time of personal examination of the claimant and submitted that the disability even though was certified as 30% by the Medical Board, the Tribunal has made a reassessment to 20% which is not justified. The Tribunal has found that there is disfigurement in the right leg below ankle joint, but no amount has been granted towards the same. It is submitted that the appellant is a daily labourer and there is shortening of leg by 2 inch which will result in functional disability also.

¶34

It is also the contention of the learned counsel for the appellant that the monthly income assessed by the Tribunal is on a very lower side namely at `2,500/- per month and considering the situation

¶35

in the year 2004, the amount claimed at the rate of `6000/- per month

¶36

MACA No.1477/2012 3

¶37

ought to have been allowed. The learned counsel for the respondent supported the award.

¶38

We find from the findings in paragraph 7 that he sustained type III B # fracture both bones (Rt) leg communited, extra dural haemorhage right parieto temporal region and fracture temporal bone right. We find from the disability certificate that the Medical Board has recorded as follows :

¶39

“Malunited compound communited fracture of both bones of Rt leg

¶40

Chronic osteomyelities of Tibia right, lateral agulation at fracture site by 20⁰ , posterior angulation by 15⁰ , partial stiffness of ankle joint (Rt)”

¶41

As per the opinion of the Board there is 30% permanent partial disability. The Tribunal on a personal examination of PW1 also found that there is disfigurement of his right leg above the ankle joint with bend on that part of the leg and that he walked with much difficulty. We find no reason to reduce the percentage of disability to 20% as done by the Tribunal since the certificate is one issued by the

¶42

MACA No.1477/2012 4

¶43

Medical Board consisting of five members representing different Specialists. Ext.A5 is the discharge card which will show that he was admitted on 25/12/2004 and was discharged on 21/02/2005 in ortho II unit of MCH, Kottayam.

¶44

The age of the claimant at the time of the accident is only 23 years. The Tribunal has observed that Ext.A5 will show that wound debridment was done and triangular shaped Ext.fixator applied followed by RYSCH nailing of segmental fracture fibula along with removal of external fixator. He was also advised to take medicine.

¶45

The Tribunal has assessed compensation in the following

¶46

manner :

¶47

*Head of claim*	*Amount awarded in* *rupees*
Loss of earning	30000
Transportation charge	5000
Extra nourishment	2500
Bystander expenses	3000
Medical and hospital expenses	1000
Pain and suffering	25000
Loss of amenities	15000
Permanent disability and earning power	108000

¶48

MACA No.1477/2012

¶49

¶50

	*Head of claim*	*Amount awarded in*
		*rupees*
Total		189500

¶51

We are of the view that reasonable amount could have been

¶52

fixed for monthly income and being a daily labourer, we will fix an amount of 4000/-. Therefore, for partial loss of earnings, we award a sum of 48,000/-. Towards bystander expenses, we award a sum of 12000/- ( 200 x 60 days). We find from the award that only1000/alone has been awarded towards medical expenses as no bills have been produced. It is submitted by the learned counsel for the appellant that many of the bills were misplaced and lost and therefore the entire documentary evidence could not be adduced. But the learned counsel for the appellant submitted that in the light of the treatment procedures undertaken including surgery and the period of treatment, a reasonable amount could have been granted by the Tribunal. Law is settled that as far as medical expenses are concerned, even in the absence of production of medical bills, considering the various aspects including the period of treatment and the treatment procedures undertaken, this Court will be justified in awarding a reasonable amount. We are of the

¶53

MACA No.1477/2012 6

¶54

view that since the appellant had undergone treatment for a long time and was treated as an inpatient for continued period of sixty days, a reasonable amount of 10,000/- can be granted towards medical expenses actually incurred and to meet expenses for future medical care. Towards the compensation for pain and suffering, 50,000/- was sought for and 25,000/- has been awarded. The details of procedures of treatment undergone by the appellant and the continuous suffering he has already experienced especially in the light of the report of the Medical Board that there is chronic osteomyelities of tibia, we fix an amount of 35,000/- for pain and suffering. As regards the compensation for permanent disability and loss of earning power, the total compensation will be `2,59,200/- ( 4000 x 12 x 18 x 30%).

¶55

Two aspects have not been considered by the Tribunal for giving adequate compensation. First is as regards disfigurement and the other is loss of prospects of marriage. He was aged only 23 at the time of the accident and remains unmarried even now according to the learned counsel. As there is shortening of limb and disfigurement which is observed by the Tribunal and recorded in paragraph 7 of the

¶56

MACA No.1477/2012

¶57

¶58

judgment, the same is also liable to be compensated. Therefore, we award a sum of ` 25,000/- for disfigurement and another amount of

¶59

`30,000/- for loss of prospects of marriage.

¶60

Thus the appellant will be entitled to compensation as

¶61

follows :

¶62

*Head of claim*	*Amount awarded in* *rupees*
Loss of earning	48000
Transportation charge	5000
Extra nourishment	2500
Bystander expenses	12000
Medical and hospital expenses	10000
Pain and suffering	35000
Loss of amenities	15000
Permanent disability and loss of earning power	259200
Disfigurement	25000
Loss of marriageprospects	30000
Total	4,41,700 ( Rupees four lakhs forty one thousand seven hundred only)

¶63

The amount will carry interest @ 9% per annum from the

¶64

date of petition. The Insurance Company will deposit the amount

¶65

MACA No.1477/2012

¶66

¶67

awarded less the amount already deposited within a period of three months and the claimant is allowed to withdraw the amount also. Since the original claim was only `2,93,000/-, before disbursing the amount of compensation, the balance court fee will be collected by the Tribunal.

¶68

The appeal is accordingly allowed.

¶69

T.R.RAMACHANDRAN NAIR, JUDGE

¶70

¶71

P.V.ASHA, JUDGE

Ajayakumar v. Manoj

Case brief

What is this about?

What did the court decide?

Ajayakumar v. Manoj

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

D.K.Sanker Vs State of Kerala

Sujeesh Kumar Vs the Superintendent of Police

Murali Vs District Police Chief

Mathew Thomas Vs George Varkey

M.a.Abraham @ Avira Abraham Vs P.K.Mathew

Subhash Vs E.Sreeranjini