Allowed

Darious Dcruz v. Ajith Bhaskar

Kerala HC1 Dec 2021MACA/1787/2016

Case brief

AI extract

What is this about?

High Court allowed the appellant's appeal in a motor accident compensation matter, enhancing the award to Rs. 1,29,584/- for loss of earnings while disallowing the claim for permanent disability. Interest was granted on the enhanced amount only for the period excluding the delay ante.

What did the court decide?

Award of additional compensation of Rs. 1,29,584/- with interest at 9% per annum (excluding 1458 days of condoned delay) to be deposited by the insurer.

Darious Dcruz Vs Ajith Bhaskar — 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 T.R.RAVI

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WEDNESDAY, THE 1^ST DAY OF DECEMBER 2021/10TH AGRAHAYANA, 1943

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MACA NO. 1787 OF 2016

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AGAINST THE AWARD IN OPMV 939/2010 OF MOTOR ACCIDENT CLAIMS

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TRIBUNAL ,KOLLAM

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APPELLANT/PETITIONER:

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DARIOUS DCRUZ S/O.MELVI DECRUZ, KARUKKASSERI VEEDU, KULANGARA BHAGAM, CHAVARA, KARUNAGAPPALLY, KOLLAM BY ADV SRI.ANCHAL C.VIJAYAN

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RESPONDENTS/RESPONDENTS:

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1 AJITH BHASKAR PIPE DISTRIBUTORS, NH ROAD, KALOOR, KOCHI, ERNAKULAM DISTRICT, PIN 682017 2 DIBEESH P.D., S/O.DIVAKARAN, POYYANTHARA HOUSE, ANAPPUZHA PO, MENTHAL VILLAGE, THRISSUR DISTRICT, PIN 680667 3 THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO. LTD., BEACH ROAD, KOLLAM DISTRICT, PIN 691001 BY ADVS. SRI. G.JAYASANKAR FOR R1 SRI MATHEW JACOB (SR) FOR R3 SRI.P.JACOB MATHEW SRI.P.VISWANATHAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 4.10.2021, THE COURT ON 1.12.2021 DELIVERED THE FOLLOWING:

MACA 1787 OF 2016

T.R. RAVI, J.

-------------------------------------------- M.A.C.A.No.1787 of 2016

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Dated this the 1^st day of December, 2021

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JUDGMENT

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On 29.7.2009, a tanker lorry driven by the 2^nd respondent in a rash and negligent manner, hit the car in which the appellant was travellin g, causing grievous injury to the appellant. The appellant suffered fracture shaft of humerus left, intra-articular comminuted fracture distal end of radius right an d other injuries. The appellant was taken to the S.N.Trust Medical Mission Hospital, Kollam, where he was treated as an inpatient up to 13.8.2009. He was treated with interlocking nailing for fracture humerus and closed reduction and multiple K-wire fixation under general anaesthesia. The K-wire fixation was removed on 24.9.2009. He was working as Operator Grade A in Titanium Dioxide Pigment Unit of Kerala Minerals and Metals Ltd., Chavara, which is a Government of Kerala undertaking, and claimed to have been earning Rs.43,395/- per month along with Rs.3,000/- as other allowances. The appellant claimed that he was on loss of pay leave from 3.7.2009 to 2.1.2010, owing to the injuries and had suffered a loss of Rs.2,09,722.50. The appellant preferred a claim petition in which

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MACA 1787 OF 2016

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the Tribunal awarded a compensation of Rs.1,19,500/-. The appeal has been filed claiming enhanced compensation.

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Heard the counsel for the appellant and respective counsel for respondents 1 and 3.

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The main contention raised by the counsel for the appellant is that the Tribunal went wrong in not granting any amount towards loss of earning, despite the fact that the appellant had produced evidence to show that he was on loss of pay leave for 117 days out of a total leave of 157 days which he had to avail due to the accident. Exhibit A10 is the salary Certificate issued by the Assistant Personnel Officer of the Kerala Minerals and Metals Ltd, showing that the appellant was earning a sum of Rs.43,395/at the time of the accident. The document further shows that following the road accident, he was absent from duty between 3.7.2009 and 2.1.2010. The certificate has been issued by the authorised officer of the employer, which is a Government of Kerala concern and there is absolutely no reason to doubt the veracity of the document. The applicant was also examined as PW1 and there is nothing in the evidence which creates any doubt regarding the contents of Exhibit A10. In the above circumstances, the Tribunal ought to have accepted the contention that the appellant was on

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MACA 1787 OF 2016

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loss of pay leave, entitling him to compensation for loss of earnings, since the leave had to be availed on account of the accident. The certificate shows that a sum of Rs.2,630/- out of the total pay relates to house rent allowance and the said amount has to be reduced from the total emoluments for a month. Thus, considering a monthly income of Rs.40,765/-, the appellant will be entitled to a su m of Rs.1,58,984/- towards loss of earnings.

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Another contention raised by the counsel for appellant is that the amount awarded towards permanent disability has been calculated on the basis of a monthly income of Rs.7,000/-, which has to be increased. The counsel for the Insurance Company pointed out that the appellant did not lose his job due to the accident and he was earning his regular pay till his retirement. As such, he did not suffer any disability due to the accident. It is also pointed out that the disability stated is only 5% and there is absolutely no evidence regarding any functional disability or any other disability which will affect the appellant's life after retirement in any manner. It is hence contended that the Tribunal went wrong in even awarding Rs.29,400/- towards compensation for permanent disability. I find considerable force in the contention raised by the counsel for the Insurance Company. Even though no

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MACA 1787 OF 2016

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appeal has been filed by the Insurance Company, since the Court has the duty to fix just and fair compensation, I am of the view that while granting enhanced compensation, excess amounts granted by the Tribunal have to be necessarily deducted. The evidence on record does not justify payment of any amount towards compensation for permanent disability.

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In the result, the appeal is allowed and the appellant is awarded an additional compensation of Rs.1,29,584/- (Rupees One Lakh Twenty Nine Thousand Five Hundred and Eighty

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Four only) with interest at the rate of 9% per annum from the date of filing of the claim petition (7.9.2010) till the date of realisation, with proportionate costs. The appeal was filed with a delay of 1458 days. By order dated 28.10.2016, this Court condoned the delay in filing the appeal on condition that the appellant will not be entitled to interest on the enhanced compensation which may be awarded by this Court for the period of 1458 days. The interest payable on the enhanced compensation shall be hence excluding the period of 1458 days. The 3 rd respondent insurer shall deposit the additional compensation granted in this appeal along with the interest and proportionate costs, before the Tribunal within two months from the date of

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MACA 1787 OF 2016

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receipt of a certified copy of this judgment, after deducting any amount to which the appellant is liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellant shall be in accordance with law.

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Sd/-

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T.R. RAVI JUDGE

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dsn

Darious Dcruz v. Ajith Bhaskar

Case brief

What is this about?

What did the court decide?

Darious Dcruz v. Ajith Bhaskar

Case brief

What is this about?

What did the court decide?

What the court decided

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