Allowed

Roy v. Jancy

Kerala HC6 Jun 2018MACA/1037/2017

Case brief

AI extract

What is this about?

The High Court allowed this Motor Accident Claims Appeal, directing the Insurance Company to deposit additional `1,19,120. The court enhanced the petitioner's monthly income to `9,000 based on training and employment evidence, increased loss of earnings compensation to three months, and corrected the permanent disability percentage from 7% to 12%.

What did the court decide?

Additional compensation of `1,19,120 granted including `20,000 for loss of earnings and `99,120 for permanent disability, payable with interest.

Roy Vs Jancy — Motor Accident Claims | Kerala HC (2018)

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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 K.HARILAL

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WEDNESDAY, THE 6TH DAY OF JUNE 2018 / 16TH JYAISHTA, 1940

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MACA.No. 1037 of 2017

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AGAINST THE AWARD DATED 28-10-2016 IN OP(MV) NO.1138/2010 of III ADDL. MACT, THRISSUR

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APPELLANT/PETITIONER:-

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ROY, S/O LATE JOSE, PERINJERI HOUSE, P.O. CHIYYARAM, THRISSUR.

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BY ADV.SRI.P.V.CHANDRA MOHAN

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RESPONDENTS/RESPONDENTS:-

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1. JANCY,

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D/O AGNES ANTONY, KAPPUNGAL HOUSE,

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KOORKKANCHERY, THRISSUR DISTRICT-680 008.

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2. JOSEPH,

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S/O ANTONY, KAPPUNGAL HOUSE, PANANCHERY LANE,

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KOORKKANCHERY, THRISSUR-680 008.

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3. THE ORIENTAL INSURANCE CO. LIMITED,

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BRANCH OFFICE, MAHESWARI BUILDING, M.G.ROAD,

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THRISSUR-680 001.

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R3 BY ADV. SMT.A.SREEKALA

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BY SMT.K.S.SANTHI

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DST

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K. HARILAL, J.

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= = = = = = = = = = = = = = = = = M.A.C.A. No.1037 of 2017

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- - - - - - - - - - - - - - - - - - - - - - Dated this the 6^th day of June, 2018

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J U D G M E N T

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The appellant is the petitioner in O.P.(MV)

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No.1138 of 2010 of the III Additional Motor Accidents Claims Tribunal (hereinafter referred to as 'the Tribunal') , Thrissur. The aforesaid Original Petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming a compensation of `2,64,000/- for the injuries and damages sustained by the petitioner, in a road traffic accident.

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According to the petitioner, on 11.11.2007, when he was riding his motorcycle, the offending maruthi van owned by the 1^st respondent, driven by the 2^nd respondent and insured with the 3^rd respondent, hit him and thereby he fell down and sustained fatal injuries.

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It was averred that the accident was caused

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M.A.C.A. No. 1037 of 2017

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by the rash and negligent driving of the offending vehicle by the 2^nd respondent and thereby the 1^st and

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2^nd respondents are jointly liable to pay

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compensation for the injuries and damages suffered by him and the 3^rd respondent Insurance Company is liable to indemnify the 1^st and 2^nd respondents, by paying compensation to him.

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Though, the respondents opposed the said application, disputing the cause of accident and quantum of compensation claimed under different

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heads of claim and both parties adduced evidence, after evaluating the evidence on record, the Tribunal allowed the Original Petition by awarding an amount of `1,67,151/- to the petitioner. The inadequacy and correctness of the quantum of compensation alone, are challenged in this appeal.

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Heard the learned counsel for the appellant and the learned Standing Counsel appearing for the

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M.A.C.A. No. 1037 of 2017

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3^rd respondent Insurance Company.

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It is contended that the monthly income determined by the Tribunal is very low and the Tribunal has failed to consider Exts.A10 to A15 in its correct perspective for the determination of the monthly income. Further, the Tribunal went wrong by reducing the degree of disability from 12% to 7%, without any reasoning. The quantum of compensation granted under the head 'loss of earnings' is also very low, in view of the fact that the petitioner had undergone for a surgery on head. He was admitted and treated as an inpatient twice. But, the Tribunal has granted compensation under 'loss of earnings' for one month only.

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Per contra, the learned counsel for the 3^rd respondent Insurance Company advanced arguments to justify the quantum of compensation fixed by the Tribunal under the aforesaid heads of claim.

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M.A.C.A. No. 1037 of 2017

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According to the learned counsel, the amount determined by the Tribunal is just and fair,

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warranting no interference in this appeal.

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In view of the arguments at the Bar, the point to be considered in this appeal is, whether the Tribunal is justified in determining the quantum of compensation under the heads of claim referred above, and the monthly income of the petitioner? According to the petitioner, at the time of accident, he was aged 41 years and he was running a Automobile workshop of maruthi vehicles and he is having a monthly income of `20,000/- per month. In order to substantiate the said contention, he has produced Exts.A10 to A15. Ext.A10 is the attested copy of driving licence and it shows that he was qualified to drive heavy passenger motor vehicles

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and goods motor vehicles. Ext.A11 is a course certificate issued by Phonetic Industrial Training

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M.A.C.A. No. 1037 of 2017

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Centre and it shows that he has successfully

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completed two years training from 1984-1986 in the said training centre in the trade of Mechanic Motor vehicle. Ext.A12 is the copy of National Trade Certificate and it shows that he has passed the prescribed test in the trade of Mechanic Motor vehicle held in January, 1987. Ext.A13 is a certificate issued by Popular Vehicles and Service Ltd. and it shows that he was working in the said organisation from April 1988. Ext.A14 is the another certificate issued by Popular Vehicles and Service Ltd., certifying that the petitioner has been working as Mechanic in PCM Toyota Service Station since 1^st October, 1989. Ext.A15 is the copy of income tax return verification form for the year 2008-09 and it shows that he had a gross income of 2,19,450/- and the total tax paid is 9,370/-.

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Going by the impugned award, it could be

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M.A.C.A. No. 1037 of 2017

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seen that the Tribunal has taken `7,000/- only as

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his monthly notional income. The accident has occurred in the year 2007. On a combined reading of Exts.A10 to A14, it can be safely concluded that he was a trained and skilled mechanic of vehicles. So, the Tribunal is not justified in taking 7,000/- as his monthly income and the monthly income would stand enhanced to 9,000/- per month and he is entitled to get compensation for 'loss of earnings' and 'permanent disability' on that basis.

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Further, it is seen that the compensation for 'loss of earnings' was given for one month only. But, Ext.A5 discharge summary shows that firstly he was admitted in the Hospital on 11.11.2007, undergone treatment as an inpatient and discharged on 13.11.2007. Thereafter, in continuation of the said treatment he was again admitted on 03.01.2008 as an inpatient and discharged on 08.01.2008 and

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M.A.C.A. No. 1037 of 2017

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during this period he had undergone a surgery on his head. Having regard to the grievous nature of the injuries and long treatment for which he had undergone, the Tribunal is not justified in granting compensation for 'loss of earnings' for one month only. Certainly, he is entitled to get compensation under the head 'loss of earnings' for three months. In the above view, the petitioner is given 27,000/under the head 'loss of earnings'. The petitioner is given 20,000/-[27,000 - 7,000] more as additional compensation under the head 'loss of earnings'.

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Similarly, it could be seen that the petitioner has been given compensation for 'permanent disability', taking degree of disability as 7% only. But, Ext.A8 disability certificate issued by the Additional Professor, Medical College, Thrissur, who treated him certified that his total whole body permanent disability as a consequence of

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M.A.C.A. No. 1037 of 2017

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his head injury sustained in the accident is assessed to be 12%. Going by the award, it is seen that the Tribunal reduced the same to 7%, without sufficient reasoning. In the absence of sufficient reasoning, the degree of disability would stand enhanced to 12% as certified by Ext.A8 and he is entitled to get compensation taking his degree of disability at 12% instead of 7%. Thus, the petitioner is entitled to get 1,81,440/- [9,000 x 12 x 14 x 12/100] under the head 'permanent disability'. The additional compensation payable to the petitioner under the head 'permanent disability' is 99,120/-. Thus, the petitioner is given a total additional compensation of `1,19,120/- [99,120 + 20,000].

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It is needless to say, the aforesaid additional compensation would carry interest, as stipulated by the Tribunal. All other findings and

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M.A.C.A. No. 1037 of 2017

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directions of the Tribunal would stand undisturbed and operative. The 3^rd respondent Insurance Company shall deposit the additional compensation, within three months from the date of receipt of a copy of this judgment and the petitioner is allowed to withdraw the entire compensation with interest.

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This Motor Accident Claims Appeal is allowed accordingly to the above extent.

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Sd/-

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K. HARILAL, JUDGE

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DST

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//True copy// P.A. To Judge

Roy v. Jancy

Case brief

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Roy v. Jancy

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