Partly allowed

Veeyabhadran @ Veerapatharan v. the Manager, the New India Assurance Co.Ltd.

Kerala HC11 Aug 2021MACA/1076/2014

Case brief

AI extract

What is this about?

The High Court modified the Motor Accident Claims Tribunal's award by enhancing compensation. It fixed the monthly income at Rs.8,000/relied on Ramachandrappa for income assessment and accepted a post-award medical certificate showing 24% disability, allowing doubt about. It also increased the pain and sufferings component.

What did the court decide?

Modified award passed to the tune of Rs.3,93,171/- to be paid by the insurance company with 9% interest.

Veeyabhadran @ Veerapatharan Vs the Manager, the New… — Motor Accident Claims | Kerala HC (2021)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

¶4

WEDNESDAY, THE 11^TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943

¶5

MACA NO. 1076 OF 2014

¶6

AGAINST THE ORDER/JUDGMENT IN OPMV 491/2011 OF MOTOR ACCIDENT

¶7

CLAIMS TRIBUNAL PALA, KOTTAYAM

¶8

APPELLANT/S:

¶9

VEEYABHADRAN @ VEERAPATHARAN S/O.GURUNADHAN, DOOR NO 4, WEST STREET NO 4, CHINNAKATTAI P O, SEDAPATTI VIA, PERIYUR TALUK, MADURAI DIST, TAMIL NADU PIN-625527

¶10

BY ADVS. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.MANU TOM

¶11

RESPONDENT/S:

¶12

THE MANAGER, THE NEW INDIA ASSURANCE CO.LTD. PALA BRANCH, MUNICIPAL SHOPPING COMPLEX PALA, KOTTAYAM DIST, PIN-686575

¶13

BY ADV SMT.T.C.SOWMIAVATHY

¶14

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶15

MACA NO. 1076 OF 2014

¶16

JUDGMENT

¶17

Being aggrieved by the award in OP(MV) No.491/2011 dated 8.10.2013 on the file of the MACT, Pala, petitioner has approached this court, arraying the original respondent before the Court below as the respondent herein.

¶18

The petitioner who met with an accident on 04.01.2011 while walking through the Erattupetta - Pala road, due to the negligence of the 1^st respondent, driver of the bus bearing registration No. KL-35/3447, had approached the Tribunal and claimed compensation to the tune of Rs.5,00,000/-.

¶19

The insurance company had filed a written statement, admitting the policy and disputing the negligence and quantum of compensation.

¶20

Learned Tribunal adjudicated the matter and finally granted Rs.3,15,250/- as compensation. The petitioner who is aggrieved in the matter of quantum of compensation is before this Court.

¶21

It is submitted by the learned Counsel for the petitioner that the Tribunal took Rs.5,000/- as the monthly income of the petitioner, who was a coolie worker at the time of accident, as against the claim of Rs.12,000/- per month as the monthly income. It is further submitted by learned Counsel for

¶22

MACA NO. 1076 OF 2014

¶23

¶24

the petitioner that, following the decision in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited

¶25

[(2011) 13 SCC 236], Rs.8,000/- ought to have been fixed as the monthly income of the petitioner, since the accident was of the year 2011. This submission appears to be convincing and therefore, I am inclined to fix the income at the rate of Rs.8,000/- per month for the purpose of fixing loss of earnings and compensation for disability. Thus loss of earnings will come to Rs.48,000/- (8000/- x 6). Excluding Rs.30,000/- granted by the Tribunal, Rs.18,000/- more under this head also is granted.

¶26

A serious grievance pointed out by the learned Counsel for the petitioner is regarding non consideration of the disability certificate obtained from the Medical College Hospital, Kottayam, by the learned Tribunal. According to learned Counsel for the petitioner, the Tribunal without waiting to get the disability certificate from the medical board, assessed the disability as 10%. Though a review petition as I.A.No.2386/2013 was filed to reopen the evidence for the purpose of considering the disability certificate, that also was dismissed.

¶27

It is submitted by learned Counsel for the insurance company that the disability certificate was not made part of evidence and therefore, the same cannot be looked into. When addressing this question, I would like to observe

¶28

MACA NO. 1076 OF 2014

¶29

¶30

that the victims of motor accidents are entitled to get just compensation and mere technicalities are not ground to deny such genuine claims. Here, as borne out from the records of the Court below, medical certificate dated 23.10.2013 was in the case bundle, showing 24% disability to the petitioner. But as per the award dated 8.10.2013, just 15 days before the date of disability certificate, the Tribunal passed the award after dismissing the petition to reopen the evidence. I cannot justify the said course of action by the Tribunal in a case like this. In the appeal memorandum, this grievance was specifically raised as one among the grounds. Keeping the principle that victims covered by social welfare legislations could not be denied reliefs on technical grounds, I am inclined to accept the disability certificate issued by the Medical Board sh0wing 24% disability and mark the same as Ext.X1 for the purpose of reassessing the compensation entitled by the petitioner, in the interest of justice.

¶31

Here, the petitioner sustained serious injuries. Type 2 open commuted fracture on right leg, type 3 open commuted fracture on left leg, etc. were the serious injuries sustained by the petitioner and in consideration of those injuries and treatment thereon, the medical board fixed 24% as disability to the petitioner. I cannot find any reason to reject Ext.X1. Therefore, I am inclined to reassess the disability income based on Ext.X1, fixing the disability at 24%. Thus, the disability income is recalculated as

¶32

MACA NO. 1076 OF 2014

¶33

¶34

Rs.8,000/- x 12 x 14 x 10/100 = Rs.1,34,000/-; out of which Rs.84,000/- was granted by the Tribunal and the balance amount of Rs.50,000/- is granted under this head.

¶35

It is further submitted by learned Counsel for the petitioner that, though the petitioner underwent 60 days of inpatient treatment, only Rs.40,000/- was granted under the head pain and sufferings. Therefore, increase under the head pain and sufferings is mandated and I am inclined to increase the same to the tune of Rs.10,000/- more. Though, as per the award, Rs.42,000/- was granted under the head loss of earning power, it is submitted by learned Counsel for the petitioner that the amount thus granted was under the head loss of amenities and therefore, the same cannot be disallowed. The award would depict that, no amount under the head loss of amenities granted by the Tribunal and therefore, this amount can be treated as one under the head loss of amenities.

¶36

Accordingly, the award is modified as follows:

¶37

Sl N o.	Head of claim	Amount Appeal (Rs.)	in	Total amount after enhancement
1	Loss of earnings	30,000/-		48,000/-
		(5,000/- x months)	6	(8,000 x 6 months)

¶38

MACA NO. 1076 OF 2014

¶39

¶40

2	Transportation to hospital	6,000/-	6,000/-
3	Extra nourishment	2,000/-	2,000/-
4	Damages to clothing	Not entitled	Not entitled
5	Treatment expenses	99,171/-	99,171/-
4	Bystander expenses	12,000/-	12,000/- (200 x 60 days)
5	Pain and sufferings	40,000/-	50,000/-
6	Permanent disability	84,000/- (5,000 x 12 x 14 x 10/100)	1,34,000/- (8000/- x 12 x 14 x 10/100 )
7	Loss of amenities	42,000/-	42,000/-
	Total claim	3,15,171/- (rounded to) 3,15,250/-	3,93,171/-

¶41

In the result:

¶42

a) This M.A.C.A is allowed in part;

¶43

b) Modified award passed to the tune of Rs.3,93,171/-(Rupees Three

¶44

lakhs ninety three thousand one hundred and seventy one only) to be paid by

¶45

the 3^rd respondent with 9% interest granted by the Triubunal and the amount

¶46

shall be deposited by the insurance company being the indemnifier of the insured.

¶47

MACA NO. 1076 OF 2014

¶48

¶49

c) The respondent/3^rd respondent insurer is directed to deposit the entire amount of compensation as directed by the Tribunal within a period of two months from this date. On deposit, the petitioner is at liberty to release

the same forthwith.

Sd/-

A. BADHARUDEEN

JUDGE

12.08.2021.