Partly allowed

Jithu M. Motty v. the Divisional Manager

Kerala HC15 Jul 2021MACA/1362/2018

Case brief

AI extract

What is this about?

The High Court allowed a motor accident claim appeal partly, enhancing the compensation awarded by the Motor Accident Claims Tribunal. The Court fixed monthly income based on evidence over post-accident statements and increased awards for loss of earnings, pain and sufferings, loss of amenities, and bystander expenses.

What did the court decide?

Enhancement of compensation granted to the tune of Rs.60,900/- to be deposited by the third respondent (insurance company) with interest at 9% per annum.

Jithu M. Motty Vs the Divisional Manager — Motor Accident Claims | Kerala HC (2021)

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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 A. BADHARUDEEN

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THURSDAY, THE 15^TH DAY OF JULY 2021 / 24TH ASHADHA, 1943

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MACA NO. 1362 OF 2018

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AGAINST THE AWARD DATED 20.02.2018 IN OP(MV) No. 825/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM,

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APPELLANT/PETITIONER:

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JITHU M. MOTTY S/O. MOTTY @ MOTTY KURIAN, MUNDACKAL HOUSE, KIDANGRA, VELIYANADU, KUTTANADU.

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BY ADVS.

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SRI.P.M.JOSHI SMT.SIJI K.PAUL

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RESPONDENT/3RD RESPONDENT:

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THE DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LIMITED, KOTTAYAM-1.

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BY ADV SRI.R.AJITH KUMAR (128/84)

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA NO. 1362 OF 2018

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A.BADHARUDEEN, J.

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===========================

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M.A.C.A.No.1362 of 2018

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===========================

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Dated this the 15^th day of July, 2021

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JUDGMENT

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The original petitioner in OP(M.V) No.825/2016 on the file of the MACT, Kottayam is the appellant herein and he impugns award dated 20.02.2018. In fact, the challenge is in the matter of inadequacy of compensation granted by the Tribunal.

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Brief facts of the case:

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Precisely t he petitioner’s case is that he sustained grievous injuries in a motor traffic accident which took place on 21.09.2015 at about 18.30 hrs. in the evening, while petitioner was riding a scooter bearing Reg.No.KL-66-4847 through the M.C. road at a moderate speed abiding all traffic rules and regulations. According to the petitioner, w hen reached at Changanacherry, near village office, when a bus hit from behind, thereby he fell down and sustained grievous injuries. Petitioner was hospitalized and treated. The accident happened, according to the petitioner, due to the rash and negligent driving of the bus bearing Reg.No.KL-3G-2369 in excessive and uncontrollable speed violating Traffic Rules by R1. R2 was the registered owner. R3 was the insurer of

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MACA NO. 1362 OF 2018

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the vehicle. The petitioner claimed Rs.5,00,000/- as compensation, with interest and costs. The Tribunal by the impugned award directed the original respondents 1 to 3 to pay jointly and severally a compensation of Rs.2,17,100/- (Rupees two lakh seventeen thousand and one hundred only) to the petitioner with interest @ 8% per annum from the date of petition till its realization with proportionate costs.

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Heard the learned counsel for the appellant/petitioner as well as the learned counsel for the insurance company.

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The learned counsel for the appellant/petitioner submitted that

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the monthly income fixed by the Tribunal at the rate of Rs.10,000/- per month is low and something more should have been granted by the Tribunal, taking note of the fact that the petitioner was employed abroad at the time when the accident occurred, though he was on leave at the relevant time. When the learned counsel was asked to justify his contention, based on evidence, he submitted that in the FIS he had stated his income as Rs.60,000/-. Apart from this, no substantive evidence was pointed out by the learned counsel for the appellant/petitioner.

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The learned counsel for the insurance company zealously opposed this contention and submitted that going by the ratio of Ramachandrappa v. Manager, Royal Sundaram Alliance [(2011) 13 SCC 236] and Syed Saidq and others v. Divisional Manager, United

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MACA NO. 1362 OF 2018

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India Insurance Co.Ltd. [(2014) 2 SCC 735], the monthly income entitled by the petitioner is Rs.10,000/- and nothing more can be fixed in a case where there was no evidence to substantiate the income. I do agree with the submissions of the learned counsel for the insurance company. In fact, monthly income is a matter of proof at the option of the petitioner and when there are no materials on record to substantiate the income mere recital in the FI statement given by the petitioner regarding his income cannot be the foundation to fix the monthly income as contented. Therefore, I find no reason to increase the monthly income fixed by the Tribunal at the rate of Rs.10,000/- per month.

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Thereafter, the learned counsel for the appellant/petitioner submitted that under the head 'pain and sufferings' and 'loss of amenities' the Tribunal not granted reasonable compensation. Further he submitted that though the petitioner was admitted as inpatient for 53 days, having sustained serious injur ies, necessitating w ound debridement followed by interlocking nailing, the Tribunal went wrong in limiting the bystander’s expenses, as Rs.10,000/-. He submitted further that Rs.300/- per day would have been fixed, so that the amount would come t o Rs.15,900/-. He canvassed compensation under the head 'loss of amenities' also on these grounds.

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According to learned counsel for the insurance company

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MACA NO. 1362 OF 2018

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reasonable amount was granted by the Tribunal and nominal increase can be granted under those heads.

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The Tribunal granted Rs.30,000/- as pain and sufferings in a case wherein the petitioner underwent inpatient treatment for 53 days. I find merit in the submission made by the learned counsel for the appellant/petitioner. In view of the matter the loss of earnings granted by the Tribunal is required to be increased for a period of three months more. Therefore, I grant Rs.30,000/- more under the head loss of earnings.

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Coming to pain and sufferings, Rs.30,000/- was granted by

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the Tribunal as against claim of Rs.1 lakh. Considering the nature of injuries and the treatment underwent by th e petitioner inclusive of 53 days’ inpatient treatment compensation for 'pain and sufferings' can be given in excess of Rs.30,000/-. I am inclined to enhance Rs.15,000/- more under this head. Coming to loss of amenities, Rs.20,000/- was granted by the learned Tribunal. Having considered the injuries, as already pointed out, I am inclined to increase the same by Rs.10,000/more.

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Coming to the bystander’s expenses, it is an accident of 2015 and therefore, the learned counsel for the appellant/petitioner is right in arguing that Rs.300/- per day ought to have been fixed by the Tribunal under the head bystander’s expenses. I do find merit in this submission

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MACA NO. 1362 OF 2018

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and therefore, I am inclined to grant Rs.5,900/- more under this head. Thus the compensation granted by the Tribunal and this Court is as

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shown below:

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Sl. No	Head of claim	Amount awarded by the Tribunal (in rupees)	Amount modified by this Court (in rupees)	Amount enhanced by this Court (in rupees)
1.	Loss of earnings	40,000/-	70,000/-	30,000/-
2.	Transport to hospital	2,000/-	-	-
3.	Extra nourishment	5,000/-	-	-
4.	Damage to clothing and articles	1,000/-	-	-
5.	By stander expenses	10,000/-	15,900/-	5,900/-
6.	Medical expenses	27,500/-	-	-
7.	Pain and sufferings	30,000/-	45,000/-	15,000/-
8.	Loss of amenities	20,000/-	30,000/-	10,000/-
9.	Permanent disability	81,600/-	-	-
	Total	2,17,100/-		60,900/-

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Therefore, the petitioner is entitled to get 60,900/- (Rupees

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sixty thousand and nine hundred only) more as compensation and the

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same shall carry interest at the rate of 9% per annum from the date of

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MACA NO. 1362 OF 2018

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claim petition till the date of realisation with proportionate costs.

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In the result, the appeal is allowed in part. Enhancement of compensation to the tune of Rs.60,900/- (Rupees sixty thousand and nine hundred only) is granted. The third respondent, insurance company is directed to deposit the amount with the above rate of interest and the appellant/petitioner is at liberty to realize the same forthwith, on deposit.

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Sd/A. BADHARUDEEN JUDGE

Jithu M. Motty v. the Divisional Manager

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Jithu M. Motty v. the Divisional Manager

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