Allowed

Vinod Cherian v. Thomas K.M.

Kerala HC20 Jun 2018MACA/1797/2013

Case brief

AI extract

What is this about?

The Mahila Appellate Court allowed the appeal against the MACT award. The Court held that the tribunal erred in fixing a lower monthly income and enhanced compensation for loss of earnings and permanent disability to Rs. 33,392/- with interest, directing the insurance company to deposit the same.

What did the court decide?

The appeal was allowed. Additional compensation of Rs. 33,392/- with interest was granted. The insurance company was directed to deposit the entire compensation within three months. All other findings

Vinod Cherian Vs Thomas K.M. — 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 20TH DAY OF JUNE 2018 / 30TH JYAISHTA, 1940

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MACA.NO. 1797 OF 2013

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AGAINST THE AWARD IN OPMV 1392/2009 OF M.A.C.T.,KOTTAYAM DATED 04-05-2013 ----------------------

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APPELLANT(S)/PETITIONER

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VINOD CHERIAN S/O.E.C.ABRAHAM, THADATHIMAKKIL (H), PUTHUPALLY (PO), KOTTAYAM.

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BY ADVS.SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN

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RESPONDENT(S)/RESPONDENTS 1 TO 3:

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1. THOMAS K.M KADAKASSERIL, POOVATHOOR (P.O), THIRUVALLA, PATHANAMTHITTA, PIN-689 531.

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2. RAMACHANDRAN NAIR MALAYATHETTU, POOVATHOOR (P.O), THIRUVALLA, PATHANAMTHITTA, PIN-689 531.

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3. THE NATIONAL INSURANCE COMPANY LIMITED KOTTAYAM, PIN-686 001.

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R1&2 BY ADVS. SRI.V.SETHUNATH SRI.S.JUSTUS R3 BY ADVS. SRI.M.A.GEORGE, SC. SRI.RAJAN P.KALIYATH.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DXY

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K.HARILAL, J.

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M.A.C.A.No. 1797 of 2013

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Dated this the 20^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).No. 1392/2009 of the Motor Accidents Claims Tribunal, Kottayam. The aforesaid application was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the injuries suffered by him in a road traffic accident.

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According to him, on 18.04.2009 at about 11.30 am, while he was traveling in a maruthi car, the offending jeep ridden by the 2^nd respondent, owned by the 1^st respondent and insured with the 3^rd respondent hit him, while attempting to overtake a tempo van hit on the said maruthy car and thereby the petitioner sustained serious injuries. The accident was caused by the rash and negligent riding of the jeep by the 2^nd respondent. So the 1^st and 2^nd respondents are liable to pay compensation to him and the 3^rd respondent insurance company is liable to indemnify the 1^st and 2^nd respondent by paying compensation to him.

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M.A.C.A.No. 1797 of 2013

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..2..

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The 3^rd respondent insurance company opposed the said application disputing the quantum of compensation and cause of accident but admitted the coverage of insurance policy. After considering the evidence on record, the tribunal passed the impugned award granting Rs. 2, 15, 838/- with 9% interest as compensation for the injuries suffered by him. The inadequacy and correctness of the quantum of compensation granted under various heads of claim are challenged in this appeal, filed by the petitioner.

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I have heard the learned counsel for the petitioner as well as the learned Standing Counsel for the 3^rd respondent insurance company.

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It is contended by the learned counsel for the appellant that the monthly income of the petitioner determined by the tribunal is very low and requires enhancement. According to the petitioner, at the time of accident, he was a worker of the Kerala Hill Produces Corporation and he was getting monthly income of Rs. 5,000/- but the tribunal has taken Rs. 4, 000/- only as his monthly income. It is also contended

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M.A.C.A.No. 1797 of 2013

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..3..

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that compensation determined under the heads, loss of earnings and permanent disability is inadequate.

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Per contra, the learned counsel for the 3^rd respondent insurance company advanced arguments to justify the determination of monthly income and the amount granted as compensation for loss of earnings and permanent disability.

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In view of the arguments at the Bar, the point to be considered is whether the tribunal is justified in determining the monthly income, the compensation for loss of earnings and permanent disability.

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Going by the impugned award, it is seen that for determining the compensation for loss of earnings, the tribunal has taken Rs. 4,500/- as his monthly income. Whereas for determining the compensation for permanent disability Rs. 4,000/- has been taken as monthly income of the petitioner. No reason is stated for reducing Rs. 500/- from Rs. 4, 500/- for calculating compensation for permanent disability. However, apparently, the tribunal has went wrong by taking different yard sticks for determining compensation for permanent disability

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M.A.C.A.No. 1797 of 2013

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..4..

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only, without any reasoning.

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This Court is of the view that even if no document was produced by the petitioner to prove his monthly income, the tribunal is not justified in taking Rs. 4, 000/- for permanent disability and Rs. 4, 500/- for loss of earnings as monthly income, in view of the proposition laid down by the Apex Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited reported in (2011) 13 SCC 236. In this decision, the Supreme Court held that in the absence of evidence to prove the exact monthly income of the claimant, for an accident occurred in the year 2004, Rs. 3,500/to Rs. 4,500/- can be taken as the monthly notional income. In the instant case, the accident has occurred in the year 2009.

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Having regard to the passage of 5 years after 2004, the monthly income of the petitioner would stand re fixed to Rs. 5, 000/- per month, as claimed by him.

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It has come out in evidence that the petitioner had undergone treatment as an inpatient for a total period of 33 days during different spells of time. He was an inpatient starting

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M.A.C.A.No. 1797 of 2013

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..5..

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from 18.04.2009 to 28.04.2009, thereafter from 15.03.2010 to 24.03.2010 and thereafter from 28.02.2011 to 14.03.2011. It shows that he was undergoing treatment as an inpatient and he had underwent surgical procedures till 14.03.2011. Being a manual laborer, he could not have worked atleast for ten months, particularly, in view of the grievous nature of the injuries suffered by him and the degree of disability reported by the medical board. Therefore, he is entitled to get compensation for loss of earning for ten months.

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Thus, the petitioner is given Rs. 50,000/- as compensation for loss of earnings (ie, Rs. 5,000/- x 10). The additional compensation payable to the petitioner under this head is Rs. 14,000/-. The petitioner is given Rs.96,960/- as compensation for permanent disability (ie, Rs. 5,000/- x 12 x 10.10 x 16/100). The additional compensation payable is Rs. 19,392/- (ie, Rs. 96,960/- - Rs. 77,568/-). Thus the total additional compensation is Rs. 33,392/- (Rs. 14,000/- + Rs. 19,392/-).

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It is needless to say that the aforesaid additional

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M.A.C.A.No. 1797 of 2013

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..6..

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compensation also would carry interest as stipulated by the tribunal. The third respondent insurance company is directed to deposit the entire compensation within a period of three months with the interest and the petitioner is allowed to realize the entire compensation. All other findings of the tribunal would stand undisturbed and operative.

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This M.A.C.A is allowed.

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Sd/-

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K.HARILAL, JUDGE

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\True Copy\ PA to Judge

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Dxy

Vinod Cherian v. Thomas K.M.

Case brief

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Vinod Cherian v. Thomas K.M.

Case brief

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