Allowed

Davis v. Babu

Kerala HC22 Sept 2016MACA/420/2008

Case brief

AI extract

What is this about?

In this appeal against an award of the Motor Accident Claims Tribunal, the Court held that the compensation awarded for loss of income, amenity, and disability was inadequate. The Court modified the award to enhance the amount for loss of income, disability, and loss of amenities, totaling an enhanced compensation of Rs. 52,300 with interest.

What did the court decide?

Enhanced compensation of Rs. 52,300 with interest at 9% per annum from the date of petition till realization.

Davis Vs Babu — Kerala HC (2016) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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THURSDAY, THE 22ND DAY OF SEPTEMBER 2016/31ST BHADRA, 1938

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MACA.No. 420 of 2008

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O.P(MV)NO. 1601/2002 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA

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APPELLANT(S)/PETITIONER IN OP(MV) :

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DAVIS, S/O. KOCHUVAREED,

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NEREPARAMBAN HOUSE, ELINJIPRA DESOM, KODASSERY VILLAGE, ELINJIPRA P.O., MUKUNDAPURAM 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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RESPONDENT(S)/RESPONDENTS IN OP(MV) :

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1. BABU, ARIPARAMBIL HOUSE, KOODAPUZHA, VIA. CHALAKUDY.

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2. DAVIS, S/O. VARKEY, KANNAMPUZHA HOUSE, KUTTIKKAD P.O.

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3. THE ORIENTAL INSURANCE CO. LTD., SOUTH JUNCTION, CHALAKUDY.

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R3 BY ADV. SMT.A.SREEKALA

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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P.V.ASHA J.

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-------------------------------------------M.A.C.A.No.420 of 2008

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

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Dated this the 22^nd day of September, 2016

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J U D G M E N T

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Appellant is the claimant before the Motor Accidents Claims Tribunal, Irinjalakuda in O.P.(M.V).No.1601 of 2002. He sustained injuries in a motor vehicle accident which occurred on 04.10.2002, on being hit by an Autorickshaw while he was ridding his motor cycle No.KL-8/N 1229. He sustained fracture of left medial malleolus and was under treatment for a period of 8 days in St.James Hospital, Chalakkudy. The claim petition was filed for compensation to the tune of a sum of Rs.1,89,000/- which was limited to Rs.1,00,000/-. The appellant had claimed that he was earning a monthly income of Rs.5,000/-. The Tribunal awarded a sum of Rs.37,200/-. This appeal is filed claiming enhancement of compensation.

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The appellant claims that the amount awarded by the Tribunal under various heads is thoroughly inadequate. The Tribunal had found that the appellant was a licenced driver but reckoned a sum of Rs.2000/- below towards his monthly income as against the claim of the appellant that he was earning at the rate of Rs.5000/- per month. Apart from that the Tribunal did not award any compensation towards disability, though Ext.A6

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M.A.C.A.No.420 of 2008

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disability certificate was produced by him in which the disability was assessed as 7.8%. Tribunal found that since the Doctor was not examined and the certificate was not issued by the Medical Board, the disability certificate cannot be accepted. Similarly the appellant also claims that the compensation awarded under the head of loss of income, loss of amenities etc., were also thoroughly inadequate. The Insurance Company had raised a claim that at the time of accident, vehicle was being driven by a person i.e., the 2^nd respondent, who was not having licence at the relevant time and they are not bound to make the payment. The Tribunal while directing the Insurance Company to deposit the amount covered by the award allowed the Insurance Company to recover the same from respondents 1 and 2.

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I heard the learned counsel for the appellant and the learned counsel for the Insurance Company. Even though notice was taken out by paper publication there is no appearance for the 1^st respondent. The 2^nd respondent has also not entered appearance.

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On examination of the award with reference to the relevant records, it is seen that the Tribunal has found that the appellant was a licenced driver. Reckoning the rate of wages

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M.A.C.A.No.420 of 2008

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which prevailed at the relevant time, I am of the opinion that the Tribunal should have reckoned his income at least at the rate of Rs.3000/- per month. Similarly, the amount awarded under the head of the loss of amenities is also seen highly inadequate. It is seen that the appellant had suffered fracture of left medial malleolus. Tribunal has stated that the fracture he sustained on 4.10.2002 was united on 17.12.2002 and he underwent reviews in the hospital till 29.01.2003. It was also found that his disability was certified as 7.8% by the doctor who treated him. This disability will affect his normal enjoyment of life considerably. Therefore he is entitled for enhanced compensation under the head of loss of amenities and compensation towards disability also. In the above circumstances, the award passed by the Tribunal required to be modified.

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Tribunal awarded compensation towards loss of income for a period of 4 months. Considering the injury caused to the appellant who was found to be a licensed driver, as one affecting his avocation, it will be only just and proper to award compensation for 5 months. Reckoning the income at the rate of Rs.3000/-, whereby the appellant would be entitled to a sum of Rs.3000x5=15,000/- in the place of Rs.8000/- already

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M.A.C.A.No.420 of 2008

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awarded.

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The Tribunal has not awarded any amount towards disability compensation saying that the disability certificate was not proved. It is not disputed that appellant sustained fracture of left medial malleolus and that a certificate was issued by a Doctor under whom the appellant underwent treatment. The Tribunal had already found that appellant sustained the injury and that appellant is a licensed driver. In the absence of any valid challenge against the disability certificate, and on consideration of the nature of injury with reference to the avocation of appellant, I do not find any reason for not accepting the disability certificate produced by the appellant and in denying compensation under the head of disability compensation. The proper multiplier to be applied in the case of the appellant who was aged 42 is 14. Therefore the disability compensation would be 3000x14x7.8x12/100= Rs. 39,312. The compensation awarded under the head of loss of amenities would also be enhanced to a sum of Rs.10,000/- as against Rs.4,000/- already awarded Without disturbing the compensation awarded under other heads, the award passed by the Tribunal is in respect of the following heads are modified as detailed below.

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M.A.C.A.No.420 of 2008

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*Sl.* *No.*	*Heads*	*Amount* *awarded* *by the* *Tribunal*	*Amount* *enhanced* */granted* *in appeal*	*enhanc* *ement*
1	Loss of income	8000	15000	7000
2	Disability	Nil	39312	39312
	Loss of
3	amenities	4000	10000	6000
	Total			52312

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Thus the appellant is entitled to an enhanced compensation of Rs.52,312/- rounded off to Rs.52,300/- which will carry interest at the rate of 9% per annum from the date of petition till realisation. The Insurance Company shall deposit the enhanced compensation on the basis of the modified award within a period of 3 months. The Insurance Company will be free to recover the same from the 1^st respondent.

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The appeal is allowed as above.

Sd/-

P.V.ASHA, JUDGE.

/True Copy/

P.A to Judge

Davis v. Babu

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Davis v. Babu

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