Partly allowed

Unnikrishnan v. Vinod Chandra Sekhar

Kerala HC4 Dec 2021MACA/2341/2013

Case brief

AI extract

What is this about?

The High Court allowed a Motor Accident Claims Appeal, partly. The Court set aside the Tribunal's fixed notional income of Rs. 4,000/- and accepted Rs. 5,000/-, ordered 10% neurological and functional disability, and enhanced total compensation to Rs. 94,000 with interest.

What did the court decide?

The appeal was allowed in part. Compensation was enhanced to Rs. 94,000 plus interest at 7.5% per annum and costs of Rs. 3,000, to be paid by the 3rd respondent.

Unnikrishnan Vs Vinod Chandra Sekhar — 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 P.G. AJITHKUMAR

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SATURDAY, THE 4^TH DAY OF DECEMBER 2021/13TH AGRAHAYANA, 1943

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M.A.C.A.NO. 2341 OF 2013

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AGAINST THE AWARD DATED 27.06.2013 IN O.P.(MV)

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NO.939/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM

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APPELLANT:

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UNNIKRISHNAN

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AGED 46 YEARS, S/O.KRISHNAN, KORATHETH HOSUE, MATTAYA P O, PATTAMBI, OTTAPALAM TALUK, PALAKKAD DIST.

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BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD

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RESPONDENTS:

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1 VINOD CHANDRA SEKHAR

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S/O.CHANDAR SEKHAR, PADINHARAPAT HOUSE, CHAKKUMKANDAM P O, PALUVAI, THRISSUR DIST., PIN-680522.

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2 SUMA CHANDRA SEKHAR D/O.CHANDAR SEKHAR, PADINHARAPAT HOUSE, CHAKKUMKANDAM P O, PALUVAI, THRISSUR DIST., PIN-680522.

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3 THE NEW INDIA ASSURANCE COMPANY LIMITED, ORISON COMPLEX, WADAKKANCHERRY ROAD, KUNNAMKULAM, THRISSUR DIST, PIN-680503.

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R3 BY ADV SRI.N.S.NAJEEB

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP

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FOR ADMISSION ON 27.11.2021, THE COURT ON 04.12.2021

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DELIVERED THE FOLLOWING:

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M.A.C.A.No.2341 of 2013

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P.G. AJITHKUMAR, J.

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----------------------------------------------------------M.A.C.A.No. 2341 of 2013

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----------------------------------------------------------Dated this the 4^th day of December, 2021

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JUDGMENT

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Appeal under Section 173 of the Motor Vehicles Act, 1988. The appellant preferred the appeal on dissatisfying with the amount of compensation allowed to him by the Motor Accidents Claims Tribunal, Ottappalam in O.P.(MV) No.939 of 2009.

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On 12.06.2009 the appellant was walking along Koottupatha-Cherumthuruthy public road. At about 9.30 a.m. a car bearing Reg.No.KL-46-A-6392 being driven by the 1^st respondent hit him down causing serious injuries. He was taken to Sevana Hospital, Pattambi, where he had to be treated as an inpatient. As a result of rash and negligent driving of the car by the 1^st respondent the accident had occurred.

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The 2^nd respondent is the owner and the 3^rd respondent is the insurer of the vehicle. The 3^rd respondent

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M.A.C.A.No.2341 of 2013

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alone entered appearance in the claim petition before the Tribunal. In the written statement filed by the 3^rd respondent, rashness and negligence attributed to the 1^st respondent was denied. Age, income and occupation of the appellant were also denied. However, it was admitted that the vehicle had a valid insurance policy.

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The Tribunal after considering the evidence, mainly the oral testimony of PW1, Exts.A1 to A10, X1 and X2, passed an award enabling the appellant to realise an amount of Rs.57,400/- along with interest and cost from the 3^rd respondent.

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The appellant assails the award mainly on two grounds, (i) disability assessed as per Ext.X2 was illegally rejected, and (ii) monthly income was fixed at a very low rate.

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Having heard the learned counsel appearing for the appellant and the learned counsel appearing for the 3^rd respondent, I hold that the notional income fixed by the Tribunal is incorrect. Income was taken as Rs.4,000/-. The claim of the appellant is that he as a barber by profession has

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M.A.C.A.No.2341 of 2013

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been earning Rs.5,000/- per month. Of course, when he categorically pleads and deposes before the court that that was his monthly income, it is not possible to fix his income notionally. However, in the absence of a reason to discard the version of PW1, his monthly income should have been taken as Rs.5,000/-. To that extent, the decision of the learned Tribunal is varied.

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Ext.X1 is the certificate issued by the first Medical Board. On the application of the appellant he was referred to a special Medical Board. The learned Tribunal did not accept the disability assessed by that second Medical Board as per Ext.X2. The Medical Board considered two aspects, namely, the neurological impact and hearing impairment. As regards, the neurological infirmities on account of the accident in question, the Medical Board assessed the disability at 10%. Taking into account the history of hearing impairment, even prior to the road traffic accident in question, the Board concluded that the appellant did not sustain any disability in reference to the loss of hearing.

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M.A.C.A.No.2341 of 2013

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The Tribunal took the view that the Medical Board as per Ext.X1 did not find any disability and therefore the report of the second Medical Board assessing disability cannot be accepted. It was observed the appellant was some disease to his ear even from childhood and therefore the assessment of disability as per Ext.X2 cannot be accepted. The said view is incorrect. The Medical Board after considering the previous infirmities only, concluded that the appellant had 10% disability as a result of the injury sustained in the accident in question. There is no reason to discard the said finding. Therefore, I hold that the Tribunal was incorrect in finding that the appellant did not have any disability. Reversing the said finding, I hold that the appellant suffered a neurological disability of 10%. The appellant being a barber, his memory and controlled bodily movements are of vital importance. He was aged 42 years at the time of accident and could have continued his avocation for long. Taking into account such aspects, I hold that his functional disability can be assessed as 10%.

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M.A.C.A.No.2341 of 2013

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Taking income of the appellant as Rs.5,000/- and functional disability as 10% and the multiplier '14', and also considering the fact that he was aged 42 years, the compensation awarded to him for disability is Rs.5,000 x 12 x 14 x 10% = Rs.84,000/-.

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The injury sustained by the appellant was abrasion over left arm, hip, ankle, sub arachnoid haemorrhage, intra ventricular bleed in the left lateral ventricle, small medial temporal bleed. Considering the nature of injuries, I refix the compensation for 'pain and suffering' as Rs.20,000/-, enhancement of Rs.8,000/-.

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Compensation for loss of earning is fixed as Rs.8,000/- taking the monthly income as Rs.4,000/-. Since the monthly income is refixed as Rs.5,000/-, the appellant is entitled to get an enhanced compensation of Rs.2,000/- under this head.

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I am of the view that compensation awarded under all other heads by the Tribunal is just and reasonable.

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M.A.C.A.No.2341 of 2013

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Total enhanced compensation entitled by the appellant in the light of the findings entered into above is Rs.84,000 + 8,000 + 2,000 = Rs.94,000.

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In the result, the appeal is allowed in part, by enhancing the compensation by an amount of Rs.94,000/- with interest at the rate of 7.5% per annum on the enhanced amount, from the date of petition till the date of deposit, and a costs of Rs.3,000/-. The 3^rd respondent is ordered to make payment of the enhanced compensation with interest and costs through the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall see that the amount of enhanced compensation is duly disbursed to the appellant in accordance with law.

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Sd/-

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P.G. AJITHKUMAR, JUDGE

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dkr

Unnikrishnan v. Vinod Chandra Sekhar

Case brief

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Unnikrishnan v. Vinod Chandra Sekhar

Case brief

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