Partly allowed

Bijoy Geevarghese v. Shabeer.a.

Kerala HC18 Nov 2021MACA/2942/2014

Case brief

AI extract

What is this about?

The High Court considered an appeal against an award by the Motor Accidents Claims Tribunal. The Court found the Tribunal's assessment of loss of earnings based on a monthly income of Rs.4,000/- inadequate. Applying Apex Court guidelines, the Court enhanced the compensation by re-fixing the notional monthly income to Rs.7,500/- and awarding amounts for loss of amenities and extra nourishment, resu

What did the court decide?

Appeal allowed in part; enhanced compensation of Rs.1,83,000/- along with interest and costs deposited by the insurer.

Bijoy Geevarghese Vs Shabeer.a. — Medical Negligence | 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 MURALI PURUSHOTHAMAN

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THURSDAY, THE 18^TH DAY OF NOVEMBER 2021 / 27TH KARTHIKA, 1943

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MACA NO. 2942 OF 2014

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AGAINST THE AWARD DATED 21.05.2014 IN OPMV NO.1807/2010 OF MOTOR

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ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM.

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APPELLANT/PETITIONER:

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BIJOY GEEVARGHESE

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S/O. GEEVARGHESE, PAINUMMOOTTIL HOUSE, PUTHENCRUZ P. O., PUTHENCRUZ.

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BY ADVS. SRI. A.N. SANTHOSH LIJIN A. GEORGE SRI. MANOJ K. JACOB

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RESPONDENTS/RESPONDENTS:

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1 SHABEER. A. S/O. KUNJHAMMED HOUSE, ACHIPRA HOUSE, BEEMANAD P. O., MANNARKAD, PALAKKAD – 678 582.

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2 THE UNITED INDIA INSURANCE COMPANY LTD, DIVISIONAL OFFICE NO.9, MUMBAI, PIN – 400 001.

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R2 - SRI. P. K. MANOJKUMAR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A No.2942 OF 2014

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JUDGMENT

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The petitioner in O.P.(MV) No.1807 of 2010 before the Motor Accidents Claims Tribunal, Ernakulam is the appellant herein. The parties in this appeal are referred to as per the status in the claim petition. The claim petition was filed claiming compensation for the personal injuries sustained by the petitioner in a motor vehicle accident. According to the petitioner, while he was riding a motor cycle bearing Registration No.KL-07/AE 3826 along Irumpanam – Kalamassery Road and when he reached at Poojarivalavu, a car bearing Registration No.KL-50/8332 driven by the 1^st respondent came from the opposite direction in a rash and negligent manner and hit on the petitioner's motor cycle and the petitioner sustained injuries. The 2^nd respondent is the insurer of the said vehicle. The petitioner claimed an amount of

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M.A.C.A No.2942 OF 2014

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Rs.5,00,000/- towards compensation. The owner-cumdriver of the vehicle, the 1^st respondent entered appearance before the Tribunal and contended that the accident happened due to the negligent riding of the motor cycle by the petitioner and that the car was covered by a valid insurance policy with the 2^nd respondent.

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The Insurance Company filed a written statement admitting that the car involved in the accident had a valid policy at the time of the accident, but contended that the accident happened due to the negligence of the petitioner. They also contended that the amounts claimed is excessive. Before the Tribunal the claimant produced Exts.A1 to A11 documents. No documents were produced on the side of the respondents.

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The Tribunal found that the accident happened due to the rash and negligent driving of the car by the 1^st respondent. The Tribunal awarded an amount of

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M.A.C.A No.2942 OF 2014

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Rs.3,69,500/- as total compensation to the petitioner.

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The compensation awarded by the Tribunal under different heads is extracted below:-

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Sl. No	Heads	Amount claimed	Amount awarded (in Rs.)
1	Loss of earnings	50,000	16,000	4000x4
2	Partial loss of earnings	10,000	0
3	Transport to Hospital and back to home	5,000	2,000
4	Extra Nourishment	5,000	1,000
5	Damage to clothes and articles	1,000	500
6	Attendant Expenses	5,000	5,000
7	Treatment expenses	2,00,000	1,61,000
8	Compensation for pain and sufferings	30,000	20,000
9	Compensation for disfiguration	1,000	0
10	Compensation for continuing and permanent/partial disability	1,50,000	1,44,000	4000x12x 20/100x15
11	Compensation for future treatments	25,000	20000
12	Compensation for loss of earning power	50,000	0
13	Compensation for loss of expectation of life/amenities and	50,000	0

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M.A.C.A No.2942 OF 2014

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enjoyment in life
14 Compensation for loss of expectation	20,000	0
15 All discomforts due to the result of future operation	0	0
Total	6,11,000	3,69,500
Claimed Rs.5,00,000/-

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The learned counsel for the petitioner submits that the amount of compensation awarded by the Tribunal is inadequate. The counsel for the petitioner points out that the compensation awarded under the head loss of earnings is too inadequate and the Tribunal went wrong in taking the monthly income of the claimant as Rs.4,000/-. The learned counsel for the petitioner relied on the decision in Ramachandrappa v. Manager,

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Royal Sundaram Alliance Insurance Company

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Limited [ 2011 (13) SCC 236 ], wherein the Apex Court has held that the notional income of a manual labourer has to be taken as Rs.4,500/-. That was in respect of an accident in the year 2004 and therefore, in respect of an

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M.A.C.A No.2942 OF 2014

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accident which happened in 2010, the notional monthly income of the petitioner has to be taken as Rs.7,500/-.

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From the nature of injuries sustained by the petitioner and taking note of the fact that the Medical Board has certified his disability as 20%, I find that, the petitioner had suffered loss of earnings for a period of six months. Accordingly, I re-fix the compensation under the head loss of earnings as Rs.45,000/- (7,500x6) .

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The learned counsel for the petitioner submits that though the petitioner had claimed an amount of Rs.5,000/- towards extra nourishment only an amount of Rs.1,000/- has been awarded under the said head. Taking note of the fact that the petitioner was hospitalised for 20 days as an inpatient and the treatment he has undergone, I find, an amount of Rs.4,000/- can be awarded under the said head.

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With regard to the compensation for pain and sufferings, the petitioner had claimed an amount of Rs.30,000/- and the Tribunal awarded only Rs.20,000/-

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M.A.C.A No.2942 OF 2014

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under the said head. Taking note of the nature of injuries, I find, that the compensation can be refixed as

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Rs.25,000/- .

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The petitioner submits that, the compensation for continuing and permanent/partial disability arrived at by the Tribunal is by taking note of the income of the petitioner as Rs.4,000/-, which has to be re-fixed on the

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basis of the notional income as per the guidelines of the Apex Court in Ramachandrappa's case (supra). I have already found that the notional monthly income of the petitioner has to be taken as Rs.7,500/-. Since the petitioner was aged 37 years at the time of accident, the Tribunal has rightly taken the multiplier as'15'.Therefore, the compensation for continuing and permanent/partial disability has to be re-fixed as Rs.2,70,000/(7500x12x20/100x15).

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The Tribunal has not awarded any amount under the head 'loss of amenities'. The fact that the petitioner was an inpatient for 20 days and taking note of the

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M.A.C.A No.2942 OF 2014

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injuries sustained by the petitioner and the percentage of disability certified by the Medical Board and also taking note of the fact that the petitioner has been suffering from total Anosmia which is likely to be permanent, I find, an amount of Rs.20,000/- can be awarded under the said head. Accordingly, the award of the Tribunal is

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modified and re-fixed as follows:-

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Sl. No	Heads	Amount awarded by Tribunal	Amount Re- fixed by this Court	Enhanced Amount
1	Loss of earnings	16000 (4000x4)	45000 (7500x6)	29000
2	Transportation	2000	2000	-
3	Extra Nourishment	1000	4000	3000
4	Damage to clothing	500	500	-
5	Attendant Expenses	5000	5000	-
6	Treatment expenses	161000	161000	-
7	Pain and sufferings	20000	25000	5000
8	Disability compensation	144000 (4000x12 x15x20/ 100)	270000 (7500x12x 15x20/100	126000
9	Future treatment	20000	20000	-
10	Loss of amenities	-	20000	20000
	Total	3,69,500	5,52,500	1,83,000

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M.A.C.A No.2942 OF 2014

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In the result, this appeal is allowed in part and the petitioner is awarded an enhanced compensation of Rs.1,83,000/- (Rupees one lakh eighty three thousand only) with interest at the rate of 8% per annum from the date of filing of the claim petition till realisation, with proportionate costs, which I fix as 3000/-. Since the Tribunal has found that the Insurance Company has to satisfy the award the 2^nd respondent insurer shall deposit the additional compensation granted in this appeal along with the interest and proportionate costs of Rs.3000/-, before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment.

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Sd/-

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MURALI PURUSHOTHAMAN JUDGE

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SPR

Bijoy Geevarghese v. Shabeer.a.

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Bijoy Geevarghese v. Shabeer.a.

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