Allowed

Baby Joseph v. P.J.Atnony

Kerala HC25 Sept 2018MACA/285/2012

Case brief

AI extract

What is this about?

This Motor Accident Claims Appeal concerned inadequacy of compensation. The High Court enhanced permanent disability compensation from 10% to 5% based on evidence of disabilities and reordered income calculations. The court awarded additional Rs. 44,800 with interest against the insurer.

What did the court decide?

Additional compensation of Rs. 44,800 awarded with interest at 7.5% p.a., directed to be deposited by the insurer.

Baby Joseph Vs P.J.Atnony — 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 P.R.RAMACHANDRA MENON

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TUESDAY ,THE 25TH DAY OF SEPTEMBER 2018 / 3RD ASWINA, 1940

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MACA.No. 285 of 2012

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AGAINST THE AWARD IN OPMV 2374/2006 of M.A.C.T.,ERNAKULAM

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APPELLANT/S:

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BABY JOSEPH

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AGED 35, S/O.N.V.JOSEPH, NEREVEETTIL HOUSE, THAMARACHAL, KIZHAKKAMBALAM P.O., ERNAKULAM, PIN-683 562, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, JIBBI THOMAS, AGED 39, S/O.V.V.THOMAS, VEMBILLY HOUSE, THAMARACHAL, KIZHAKKAMBALAM P.O., PIN-683 562, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT.

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BY ADV. SRI.K.C.ELDHO

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RESPONDENTS:

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1 P.J.ATNONY [ expired] PALLATHU HOUSE, PUTHIYA ROAD, PALARIVATTOM, COCHIN682 025, ERNAKULAM DISTRICT. (OWNER AND DRIVER OF KL7/H-4749 MARUTHI CAR).

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2 THE NATIONAL INSURANCE CO.LTD. MYDHILY MANDIRAM, JANATHA JUNCTION, PALARIVATTOM, KOCHI-25. (INSURER OF KL-7/H-4749 MARUTHI CAR).

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3 JIJO THOMAS

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AGED 37, S/O.V.V.THOMAS, VEMPILLY HOUSE, THAMARACHAL, KIZHAKKAMBALAM P.O., PIN-683 562, ERNAKULAM DISTRICT, (OWNER AND RIDER OF KL-7/AH-6515 MOTOR CYCLE).

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4 THE NATIONAL INSURANCE CO.LTD. KALAMASSERY BRANCH OFFICE, MANAPPAT CENTRE, H.M.T.JUNCTION, KALAMASSERY-04. (INSURER OF KL-7/AH6515 MOTOR CYCLE).

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5 ELIYAMMA MATHEW W/O.LATE P.J.ANTONY, AGED ABOUT 65, PALLATHU HOUSE, PUTHIYA ROAD, PALARIVATTOM, KOCHI-25, ERNAKULAM.

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MACA.No. 285 of 2012

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6 ASHA MARY ASHA JIBY AGED 38, D/O.LATE P.J.ANTONY AND W/O.JIBU PAUL, PALLATHU HOUSE, NOW RESIDING AT MAKKAYIL HOUSE, KADATHI, MUVATTUPUZHA, ERNAKULAM, MUVATTUPUZHA P.O.686661.

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7 ALPHA TREASA ALPHA MANOJ AGED 37, D/O.LATE P.J.ANTONY AND W/O.MANOJ.M.JOSE, PALLATHUHOUSE, NOW RESIDING AT MANKUTHEL HOUSE, KARIMATTOM, ERNAKULAM, AYAVANA P.O.-686 676.

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BY ADV. SMT.DEEPA GEORGE

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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The claimant before the Tribunal is the appellant

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herein. Grievance is in respect of the inadequacy of the compensation awarded. The appellant was proceeding on a motorcycle, as pillion rider, on 17.09.2005 when a Maruthi car insured by the second respondent hit against the motorcycle, causing serious injuries to his right leg, which led to claim petition preferred before the Tribunal.

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Based on the documentary evidence, the Tribunal arrived at a finding that the accident was solely due to

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MACA.No. 285 of 2012

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the negligence on the part of the driver of the Maruthi

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car. Existence of a valid policy was admitted. Total

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compensation payable was fixed by the Tribunal as

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Rs.3,08,185/-; which was directed to be satisfied with interest @ 8% p.a. by the insurer of the car.

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Heard the learned counsel for the appellant as

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well as the learned counsel appearing for the Insurance Company.

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Injuries sustained by the appellant, as

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discernible from paragraph 14 of the Award, are in the following terms :

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as per Ext. A4, A5 wound certificates and A12 to 16 discharge summary. Un displaced avulsion fracture of greater trochanter hip, fracture mid shaft femur right, comminuted fracture 1/3^rd tibia right, deformity of right lower limp, tenderness pelvis.”

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The learned counsel for the appellant submits

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that the appellant was hospitalized for a total spell of 81 days, in connection with five surgeries, he had undergone, as revealed from Exts. A12 to A16 discharge

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MACA.No. 285 of 2012

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summaries. Despite producing Annexure A19 as to the

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monthly income [claimed as Rs.5000/-], the Tribunal reckoned only Rs.3500/- and worked out the compensation payable accordingly. Similarly, though Ext. A17 certificate was produced showing the permanent

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disability as 10%, it was not accepted and no amount has been awarded towards permanent disability.

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The amounts awarded by the Tribunal under

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different heads are as given below :

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Loss of earning - 45000 Partial Loss of earning - 3000

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Transportation expenses Damage to clothing & articles - 500 Extra nourishment - 4000 Medical expenses - 172685 Attendants expenses - 8000 Compensation for pain and sufferings - 50000 Compensation for loss of amenities and enjoyment in - 25000 life

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TOTAL - Rs.308185

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MACA.No. 285 of 2012

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It may be true that the appellant had produced

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medical certificate only from the hospital from where he had availed the treatment initially i.e. the Medical Trust Hospital and the doctor who has issued Annexure A17 may not have treated the appellant as well. But still, the fact remains that serious injuries were cause to the appellant and he had to undergo as many as '5 surgeries' to get the defects rectified. Even if it

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could be said that there was no sufficient evidence to accept the version of the claimant in toto, still it cannot but be said that there is some evidence as to the disability. Considering the totality of the facts and circumstances, this Court finds it have it proper to fixed as 5%.

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Under the head transport to hospital no amount has been given by the Tribunal, but for giving a paltry sum of Rs. 500/- under the common head Transportation expenses, Damage to clothing & articles. This Court finds it appropriate to grant a sum of Rs.2000/- as transportation expenses. Under the head bye standers'

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MACA.No. 285 of 2012

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expenses, no amount has been awarded by the Tribunal.

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This Court finds it appropriate to fix the same as

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Rs.2000/ -. Considering the age of the appellant and

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also other attending circumstances with regard to the employment in relation to Annexure A19, this Court finds it appropriate to refix the monthly income as Rs.4000/-, instead Rs.3500/- fixed by the Tribunal. In the said

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circumstances, on reworking the compensation after effecting the modifications as above, the compensation payable under the head permanent disability will come to Rs. 4000 x 12 x 5/100 x 17 = Rs.40,800/- .

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This Court is of the view that the amounts

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awarded by the Tribunal under other heads are adequate

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and do not warrant interference. Thus the total additional compensation payable to the appellant will

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come to Rs.44,800/- [Rupees Forty Four thousand and

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Eight hundred only]. The appellant is entitled to get

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the said amount with interest @ 7.5 % from the date of

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filing this petition. Since the policy is admitted,

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the 2^nd respondent Insurance Company is directed to deposit the amount due before the Tribunal, within one

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MACA.No. 285 of 2012

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month from the date of receipt of a copy of this

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judgment.

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Appeal stands disposed of.

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Sd/-

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P.R.RAMACHANDRA MENON

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JUDGE

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kmd

Baby Joseph v. P.J.Atnony

Case brief

What is this about?

What did the court decide?

Baby Joseph v. P.J.Atnony

Case brief

What is this about?

What did the court decide?

What the court decided

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