Partly allowed

Karthikeyan v. a.Bhaskaran and Others

Kerala HC19 Jun 2014MACA/51/2007

Case brief

AI extract

What is this about?

A single-judge bench enhanced the compensation awarded to an Income-tax Officer for injuries sustained in a motor accident. The court revised heads including loss of earning power, pain and suffering, and medical/nursing expenses, granting additional compensation of Rs. 88,000 subject to 50% contributory negligence.

What did the court decide?

The appellant is entitled to an additional compensation of Rs. 88,000 with interest at 9% p.a. with a direction to the insurance company to deposit the amount.

Karthikeyan Vs a.Bhaskaran and Others — Motor Accident Claims | Kerala HC (2014)

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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 PIUS C.KURIAKOSE &

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THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI

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TUESDAY, THE 20TH DAY OF MARCH 2012/30TH PHALGUNA 1933

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MACA.No. 51 of 2007 ( )

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OP(MV)NO.791/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM

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APPELLANT/ APPLICANT

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KARTHIKEYAN, S/O.CHANDRASEKHARAN NAIR, REVATHY, PANACHAMOODU LANE, PATTOM, THIRUVANANTHAPURAM.

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BY ADVS.SRI.G.APPAN SMT.LIGEY ANTONY

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RESPONDENT(S)/RESPONDENTS:

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1. A. BHASKARAN, S/O. KORAN, ADIYORI VEEDU, NEW MAHI P.O.

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2. REMESAN, S/O. KUNJIRAMAN, EDATHOOR, PANIMADAM DESOM, THALASSERY P.O.

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3. THE NEW INDIA ASSURANCE CO. LTD., ARISTO COMPLEX, NEAR POST OFFICE, MAHI REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTARATHIL BUILDINGS, PALAYAM,THIRUVANANTHAPURAM.

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R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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J U D G M E N T

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No representation for the appellant today also. The appeal is dismissed.

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20/03/2012

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SD/- PIUS C. KURIAKOSE,JUDGE

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SD/- A.V.RAMAKRISHNA PILLAI,JUDGE

/TRUE COPY/

sts

P.A.TO.JUDGE

HARUN-UL-RASHID & ANIL K.NARENDRAN, JJ.

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

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M.A.C.A.No.51 of 2007

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-------------------------------------------------DATED THIS THE 19^th DAY OF JUNE, 2014

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JUDGMENT

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HARUN-UL-RASHID, J.

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The applicant is the appellant. The appeal is directed against the judgment and decree in O.P.(MV)No.791/95 on the file of the Motor Accident Claims Tribunal, Thiruvananthapuram. The applicant, aged 44, an Income-tax Officer by profession, met with an accident on 30.12.1994 while he was travelling in a Maruti car with his family. When the car reached Koyilandi, the offending bus driven by the 2^nd respondent came from the opposite direction and collided with the car in which the applicant was travelling, resulting in serious injuries to him. Three passengers in the car were injured and all the injured filed Original Petitions claiming compensation. The Tribunal held that the accident had occurred due to the composite negligence of the 2^nd respondent and the deceased driver of the car and therefore, limited the liability of the insurer to 50%. In the first judgment passed by the Tribunal, a compensation of `5,20,686/- was awarded in favour of the applicant, after deducting

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M.A.C.A.No.51/07 -2-

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50% towards contributory negligence. The Insurance Company preferred M.F.A.No.875/2000. This Court in appeal upheld the finding of the Tribunal regarding 50% negligence to the driver of the car and against the driver of the bus. On the question of quantum of compensation awarded, this Court found that the compensation is excessive and arbitrary and therefore set aside the award as regards quantum of compensation and remanded the matter for fresh disposal. After remand, the Tribunal fixed the quantum of compensation as 1,62,000/- After deducting 50% from the total compensation, only an amount of 81,000/was awarded as compensation. Aggrieved by the quantum of compensation fixed by the Tribunal, the applicant has preferred the appeal. The parties are hereinafter referred to as they arrayed in the Original Petition.

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The applicant claimed `12 lakhs as compensation. The applicant produced Exhibits A1 to A33 documents. Exhibit A14, A15, A16 and A17 are the wound certificate, referral O.P.Card, referral O.P.Cards and disability certificate, respectively. The accident happened in Koyilandi in Kozhikode District.

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M.A.C.A.No.51/07

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Immediately after the accident, he was admitted in a local hospital and later taken to the Medical College Hospital, Thiruvananthapuram, which is at a distance of approximately 500 KMs from Koyilandi. Exhibit A17 disability certificate certifies that the petitioner had sustained a fracture of left patella, fracture of right humerus, fracture dislocation of the hip, partial sciatic nerve palsy with foot drop, fracture of the right rib on the right side, lacerated wound on the face and abdomen,loss of one tooth and deformities of three teeth. It was also certified that the petitioner underwent traction to the lower limb, till hip was stabilised. A partial patellectomy was done for the fracture of the patella and shoulder spica was applied for the fracture of the humerus. He had to undergo extensive physiotherapy. It was also stated that the petitioner suffered severe pain and mental strain due to the injury. He had 100% permanent disability for 3 ½ months from the date of the injury and on examination of the patient on 10.8.1997, the petitioner had quadriceps weakness and osteoarthritis of patello femoral joint following the fracture of patella. He has stiffness, pain and osteoarthritis of hip due to the

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M.A.C.A.No.51/07 -4-

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fracture dislocation of the hip. He had a partially recovered foot drop with weakness of the ankle dorsiflexion. He has ugly scaring of the face in places and he had stiffness and wasting of the right shoulder and therefore the doctor has assessed the permanent disability at 52%. The applicant was hospitalised for a period of 84 days and he underwent treatment, which includes extensive physiotherapy. He suffered 100% disability during the

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period of treatment. The Doctors noticed serious complaints during the period of treatment and continuing complaints and assessed the permanent disability of the applicant at 52%. Exhibit A33 is the report of the Medical Board, Medical College Hospital, Thiruvananthapuram. The Medical Board assessed permanent disability of the petitioner at 50%.

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The Tribunal found that at the time of the accident, the applicant was working as an Income Tax Officer. There is no controversy regarding his income as on the date of the accident was 6500/-.The Tribunal deducted 1,500/- from the salary stating that the petitioner may have paid income-tax and HRA may also have included. In the absence of any evidence to the

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M.A.C.A.No.51/07

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contrary, the Tribunal went wrong in deducting 1,500/- from the income for the reason that the applicant may have paid incometax and HRA. The petitioner was on leave for 84 days(wrongly mentioned as 82 days) in connection with his treatment. Assessing the monthly income as certified @ 6,500/-, the loss of earning for 84 days is calculated as 18,199/-. Deducting 13,666/-, the petitioner is entitled to additional compensation of 4,533/-, which is rounded off to 4,500/-. In respect of other claims also, we find that the Tribunal was not justified in granting meager amounts. The Tribunal reported that towards claim for medical and incidental expenses, the applicant has not produced any bills. The Tribunal awarded a sum of 2,000/- as compensation under the said head. Under the head sufferings and discomforts, he had undergone during and after the treatment and the seriousness of the injuries sustained, we find that the sum of 2,000/- awarded by the Tribunal as compensation is neither just, nor reasonable. We re-fix the compensation towards claim of medical and incidental expenses as `10,000/-. Thus, the applicant is entitled to an additional

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M.A.C.A.No.51/07 -6-

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compensation of 8,000/- under this head and towards transportation to the hospital the Tribunal awarded a sum of 2,000/-. As stated above, the accident happened at Koyilandi in Kozhikode District. The applicant had undergone treatment in the Medical College Hospital, Thiruvananthapuram, which is at a distance of approximately 500 KMs. away from the place of accident. We find that the compensation under the head transportation to the Hospital shall be a minimum of 5,000/-. The applicant is entitled to an additional compensation of 3,000/- under this head. For extra nourishment, the Tribunal awarded a sum of `3,000/-. The compensation under this head is

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revised as 4,000/-. The applicant is entitled to an additional compensation of 1,000/-. At least for 84 days, the applicant had availed the service of a bystander. In the said circumstances, the petitioner is entitled to 12,600/- as compensation under this head, by taking 150/- as wages per day. Deducting the amount already awarded, the applicant is entitled to an amount of `9,600/- under this head. For pain and

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suffering, the claim is enhanced to `40,000/-. Deducting

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20,000/- awarded by the Tribunal, the applicant is entitled to 20,000/-. The enhancement was granted taking into account the various injuries sustained by the applicant in the accident, period of treatment, continued suffering and continued future treatment.

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The Medical Board certified 50% permanent disability. The Tribunal held that the loss of earning power is one of the consequences to be classified as one head requiring compensation to be worked out as one entitling for non-pecuniary damages and awarding compensation under the head permanent disability, the Tribunal should take notice of the loss of earning power in each case. The Tribunal also noticed that the applicant did not suffer from loss of earning power till he retires from service at the age of 60 and subsequent to the retirement of 60 he may get pension. The Tribunal took notional income as 2,000/- per month. Applying the multiplier as five, the Tribunal awarded a sum of 60,000/- as compensation for permanent partial disability resulting in loss of earning power. We find that the compensation awarded under this head is very low.

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M.A.C.A.No.51/07

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Considering the fact that the applicant was in service till his retirement at the age of 60 and he retired on superannuation in the year 2010 and taking into account the fact that he is capable of doing his work after retirement as well, we find that the notional income assessed at 2,000/- per month is very low. We fix the notional income after retirement as 5,000/-. Applying the same multiplier, the compensation for permanent partial disability resulting in loss of earning power is assessed as 1,50,000/-. Deducting 60,000/-, the applicant is entitled to realise 90,000/-. The Tribunal awarded 60,000/- as compensation under the head inconvenience, discomfort, loss of amenities, etc. For the very same reason stated above, we are of the view that the compensation under this head should have been given as 1,00,000/-. Deducting 60,000/- awarded, the applicant is entitled to a sum of 40,000/-. The additional compensation under the various heads will come to 1,76,100/-. Since there is a contributory negligence on the part of the driver of the car, the Tribunal reduced 50% from the total compensation. Thus, the appellant is entitled to only 50% of the

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M.A.C.A.No.51/07

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additional compensation, i.e., 88,050/-, which is rounded off to 88,000/-.

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In the result, the appeal is partly allowed. The judgment and decree passed by the Motor Accident Claims Tribunal, Thiruvananthapuram is modified. The appellant/applicant is entitled to realise a sum of `88,000/- with interest @ 9% p.a. from 22.6.1995 till realisation. There will be a direction to the Insurance Company to deposit the additional compensation within a period of two months from today. If the compensation awarded by the Tribunal is not paid till date, the same shall also be deposited within the said period.

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Sd/- HARUN-UL-RASHID ,

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JUDGE

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Sd/- ANIL K.NARENDRAN, JUDGE

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dsn

Karthikeyan v. a.Bhaskaran and Others

Case brief

What is this about?

What did the court decide?

Karthikeyan v. a.Bhaskaran and Others

Case brief

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