Partly allowed

E.v.Johny v. Vasanthi and Others

Kerala HC20 May 2016MACA/1730/2011

Case brief

AI extract

What is this about?

In this motor accident appeal, the High Court enhanced the compensation awarded by the Tribunal. The Court upheld the rejection of the disability certificate due to lack of proper medical board certification and unaffected the loss of earning award, but increased compensation for clothing, pain and suffering, and discomfort.

What did the court decide?

Enhanced compensation of ₹18,500/- awarded towards clothing, pain and suffering, and discomfort, with interest at 8% per annum.

E.v.Johny Vs Vasanthi and Others — Motor Accident Claims | Kerala HC (2016)

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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 C.T.RAVIKUMAR

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THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH

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FRIDAY, THE 20TH DAY OF MAY 2016/30TH VAISAKHA 1938

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MACA.No. 1730 of 2011 ( )

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AGAINST THE AWARD IN O.P(M.V)NO.3147/2004 of MOTOR ACCIDENTS CLIMS TRIBUNAL, THRISSUR DATED 31-03-2011

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APPELLANT:

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E.V.JOHNY, S/O.VARGHESE,

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ELANJIKKAMALI HOUSE, KOOTTALA PO, THRISSUR.

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BY ADV. SRI.V.BINOY RAM

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RESPONDENTS/RESPONDENTS:

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VASANTHI, VMS TRANSPORTS, 65, SANGEETHA THEATRE, SOMANUR,COIMBATORE, TAMIL NADU 641 601.

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RAMACHANDRAN, S/O.SANKARANKUTTY THANDIYEKKAL HOUSE, MUTTICHUR DESOM, PADIYAM VILLAGE - 680 641.

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THE NEW INDIA ASSURANCE COMPANY LTD., KUMARAN SHOPPING COMPLEX, KUMARAN ROAD, TIRUPUR-638 601.

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R3 BY ADV. SRI.M.RAJAGOPALAN

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BY ADV. SRI.RAJIT

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BY SRI.A.A.ZIYAD RAHMAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.

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M.A.C.A.No.1730 of 2011

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Dated 20^th May, 2016

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JUDGMENT

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Ravikumar, J.

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This appeal has been filed seeking enhancement of the compensation awarded by the Motor Accidents Claims Tribunal, Thrissur as per award dated 31.3.2011 in O.P.(M.V)No.3147 of 2004. The petitioner therein is the appellant and he is a Policeman. At the time of the accident he was aged 42 years. On 3.11.2003, while he was riding a motor cycle bearing Reg.No.KL-8/S 5439 through Peringottukara Kanjani public road from south to north the offending vehicle, a Mahindra Van bearing Reg.No. KL-8/X 6273, driven by the 2^nd respondent dashed against his motor cycle. On sustaining injuries in the accident he was taken to Mother Hospital, Olarikkara, Thrissur and he remained there as an inpatient for five days. It is in the said circumstances that the aforementioned claim petition was filed seeking a compensation of 1,30,000/-. To establish his claim the appellant₹ got marked Exts.A1 to A10. Both sides did not adduce any oral evidence. No documentary evidence was adduced by the respondents. It is after evaluating the evidence on record and appreciating the rival

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M.A.C.A.No.1730/2011

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contentions that the impugned award was passed.

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The main grievance of the appellant is that though Ext.A7 disability certificate was produced, the Tribunal declined to accept and act upon the same and also to award compensation for permanent disability incurred by him.

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We have heard the learned counsel on both sides and gone through the impugned award. Evidently, despite taking up a contention that the injuries sustained in the accident resulted in permanent disability and in support of such contentions produced Ext.A7 disability certificate the appellant had not cared to prove Ext.A7. Ext.A7 is not a certificate issued by a duly constituted Medical Board. The doctor who issued the same was not examined before the Tribunal. In such circumstances, the Tribunal cannot be found fault with, in not accepting and acting upon Ext.A7 disability certificate. Ext.A5 wound certificate and Ext.A6 discharge summary would reveal the nature of the injuries sustained by the appellant. Evidently, he sustained the following injuries:-

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M.A.C.A.No.1730/2011

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“Incised wound 4x1x.5 on the right forearm distal to elbow joint, lacerated wound 5x1x.5 cm on right forearm distal to 1^st one, multiple abrasions and fracture of calcaneum and chip fracture acromion left.”

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Taking into account the injuries sustained by the appellant we are of the view that in the absence of any evidence to show that he had actually incurred permanent disability it would not be proper for us to hold that the appellant had actually incurred permanent disability, solely by looking into Ext.A7. Ext.A9 is the salary certificate and Ext.A10 is the certificate revealing the nature of leave availed by the appellant. It is taking into account such aspects that the Tribunal granted an amount of ₹ 11,376/- towards loss of earning. Towards transportation expenses an amount of 500/- was granted. Towards extra nourishment and₹ bystander expenses 1,000/- and 1,500/- respectively were granted.₹ ₹ After going through the evidence on record and the impugned award we do not find any reason warranting appellate interference with respect to the compensation granted by the Tribunal under the aforesaid heads. But, at the same time, on going through the judgment and award, we are of the view that the amount granted towards damages to clothing, compensation for pain and suffering and discomfort invite interference. Going by the nature of the injuries sustained by the appellant there cannot be any doubt with respect to the fact that the apparels worn by

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M.A.C.A.No.1730/2011

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the appellant at the time of the accident must have been got damaged. In such circumstances, in addition to 500/- granted by the Tribunal₹ we are inclined to grant 500/- more towards damages to clothing. As₹ compensation for pain and suffering the Tribunal granted an amount of ₹ 12,000/-. We have already noted the injuries sustained by the appellant in the accident. As noticed hereinbefore, pursuant to the sustainment of such injuries he had been an inpatient for a period of five days. Taking note of the nature of the injuries and the period of treatment we are of the view that the appellant is entitled to get an amount of 8,000/- more as compensation for pain and suffering. The₹ said amount is awarded. Towards discomfort the Tribunal granted an amount of 6,000/-. Ext.A5 accident register-cum-wound certificate₹ and Ext.A6 discharge summary would reveal the injuries sustained by the appellant, as mentioned above, and taking into account the fact that the injuries include fracture of calcaneum and chip fracture acromion left we are of the view that it is only appropriate to grant an amount of ₹ 10,000/- more towards discomfort.

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In the light of the discussion as above, the appellant is entitled to get an additional compensation of 18,500/-. The said₹ enhanced amount will carry interest at the rate of 8% per annum from

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M.A.C.A.No.1730/2011

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the date of petition till realisation. The 3^rd respondent shall deposit the enhanced amount along with interest within a period of one month from the date of receipt of copy of this judgment. In the event of failure to deposit the amount within the above stipulated period the amount remaining to be paid will carry interest at the rate of 9% per annum from the date of petition. There will be no order as to costs.

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Sd/-

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C.T.RAVIKUMAR Judge

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Sd/- K.P.JYOTHINDRANATH Judge

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K.P.JYOTHINDRANATH

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TKS

E.v.Johny v. Vasanthi and Others

Case brief

What is this about?

What did the court decide?

E.v.Johny v. Vasanthi and Others

Case brief

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