Partly allowed

Haridas a v. Vs the Manager, United India Insurance Co. Ltd, Calicut

Kerala HC15 Dec 2021MACA/3208/2014

Case brief

AI extract

What is this about?

This appeal involved challenging the quantum of compensation awarded by the Motor Accident Claims Tribunal. The appellate court enhanced the compensation for loss of earnings, medical expenses, amenity, pain and suffering, and continuing disability based on adjusted income, correct disability percentages, and applicable multipliers. The total compensation was increased from Rs. 3,19,331 to Rs. 5,1

What did the court decide?

Enhanced compensation of Rs. 1,91,006/- with interest at 8% per annum awarded; total compensation re-fixed at Rs. 5,10,337/-; insurer directed to deposit additional amount within two months.

Haridas a v Vs the Manager, United India Insurance Co… — 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 MURALI PURUSHOTHAMAN

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WEDNESDAY, THE 15^TH DAY OF DECEMBER 2021 / 24TH AGRAHAYANA, 1943

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MACA NO. 3208 OF 2014

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AGAINST THE JUDGMENT IN OPMV 514/2007 OF MOTOR ACCIDENT CLAIMS

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TRIBUNAL,KASARAGOD

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APPELLANT/PETITIONER:

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HARIDAS A V AGED 44 YEARS S/O.M.V.GOPALAN, AMBILERI HOUSE, KARIVELLUR P.O, KARIVELLUR, KARIVELLUR VILLAGE, TALIPARAMBA TALUK,KANNUR DISTRICT

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BY ADV SRI.M.V.AMARESAN

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RESPONDENT/RESPONDENT NO.3:

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THE MANAGER, UNITED INDIA INSURANCE CO. LTD, CITY BRANCH-1, RAMEEZ ARCADE, C.H.FLY OVER JUNCTION, CHEROOTTY ROAD, CALICUT, PIN 673 032.

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BY ADV SRI.S.ARUN RAJ

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON

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15.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MACA 3208/2014

JUDGMENT

The petitioner in O.P. (MV) No.514/2007 on the file of the Motor Accident Claims Tribunal, Kasaragod has preferred this appeal aggrieved by the quantum of compensation awarded by the Tribunal. The parties in this appeal are referred to as per their status in the claim petition.

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According to the petitioner, while he was riding a motorcycle bearing Reg. No. KL-13/N-2891 from Cheruvathur to Karivellur on 11.03.2007, a lorry with Reg.No. KL-10/J-2527 came from opposite direction in a rash and negligent manner and hit the motorcycle and he was thrown on the road and sustained serious injuries. He was treated as inpatient in hospitals till 24.04.2007. The 2^nd respondent is the owner of lorry and 3^rd respondent is its insurer. According to the petitioner, the accident occurred due to rash and negligent driving of the lorry by the 1^st respondent and all the respondents are jointly and severally liable to compensate the petitioner. The petitioner claimed an amount of Rs.7,00,000/- as total compensation for the injuries sustained in the

MACA 3208/2014

accident.

Respondents 1 and 2 were set ex parte before the Tribunal. The

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3^rd respondent filed written statement admitting that at the time of the accident, the lorry was having a valid policy of insurance with them; but, contended that the 1^st respondent-driver was not having valid driving licence and badge and that the accident happened due to rash and negligent riding of motorcycle by the petitioner. It was also contended that the amounts claimed under various heads as compensation are highly excessive.

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Before the Tribunal, Exts.A1 to A7 series and X1 documents were marked. No oral evidence was adduced by either side.

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The Tribunal found that the accident happened due to the negligence of the 1^st respondent. The Tribunal awarded an amount of Rs.3,19,331/- as compensation payable to the petitioner under various

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heads as follows:-

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1. Transport expenses	:	Rs.	8,000/-
2. Loss of earning	:	Rs.	17,500/-
3. Extra nourishment	:	Rs.	7,000/-
4. Damages to clothing and articles	:	Rs.	1,000/-

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MACA 3208/2014

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5. Medical expenses : Rs.	1,74,191/-
6. Loss of amenities and enjoyments of life : Rs.	10,000/-
7. Expenses for bystander : Rs.	6,000/-
8. Expenses for pain and suffering : Rs.	15,000/-
9. Expenses for continuing disability : Rs.	80,640/-

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TOTAL : Rs. 3,19,331/-

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(Rupees Three lakhs Nineteen thousand Three hundred and thirty one only) The 3^rd respondent insurance company was directed to satisfy the award and to deposit the said amount with interest at the rate of 8% per annum from the date of petition till actual payment with proportionate costs.

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According to the petitioner, the amounts awarded as compensation under various heads are totally inadequate.

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Towards loss of earnings, the Tribunal has awarded only Rs.17,500/- as compensation. To determine the compensation under the said head, the Tribunal has taken the notional monthly income of the petitioner as Rs.3,500/-. According to the petitioner, he was a building contractor. Going by the decision of the Hon'ble Supreme Court in Ramachandrappa v . Manager, Royal Sundaram Alliance Insurance Company Limited [2011 (13) SCC 236], the notional monthly income of

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MACA 3208/2014

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the petitioner has to be taken as Rs.6,000/- as on 2007. Accordingly, I refix the notional monthly income of the petitioner as Rs.6,000/- . The petitioner was unable to do any work for five months as a result of the accident. Therefore, I re-fix the compensation payable under the head loss of earnings as Rs.30,000/- (6,000×5). An amount of Rs.17,500/- was already awarded under the said head and therefore, the petitioner is entitled to an enhanced amount of Rs.12,500/- under the head loss of earnings.

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Under the head medical expenses, the petitioner claimed an amount of Rs.3,50,000/-. The petitioner had produced Ext. A7 series medical bills for an amount of Rs. 1,97,337.58/- before the Tribunal. The bill dated 31.07.2007 for an amount of Rs. 23,146/- was disputed by the counsel for the insurer stating that the same represents 'procedure charges' and this amount cannot be reckoned as expense for treatment. The Tribunal has observed that the counsel for petitioner could not explain as to what is ‘procedure charges’ and therefore the sum of Rs. 23,146/towards procedure charges was reduced from the total bill of

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MACA 3208/2014

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Rs.1,97,337/- and a sum of Rs. 1,74,191/- alone was awarded as expense for treatment. It is evident from Ext.A4 discharge summary dated 12.08.2007 that the petitioner had undergone a surgery on 31.07.2007 for Total Knee Replacement of Right Knee (TKR Right Knee) under spinal anesthesia. The bill dated 31.07.2007 for an amount of Rs. 23,146/- was produced along with I.A. No. 1709 of 2011 before the Tribunal and the document is the invoice issued by the orthopedic implant distributor to the Hospital towards the cost of knee replacement implants, wherein the Hospital has endorsed their bill for procedure charges of Rs. 23,146/-. On a conjoint reading of the said document with Ext. A4 discharge summary, there cannot be any doubt that the ‘procedure charges’ refers to charges for the procedure for TKR Right Knee done on 31.07.2007. The said bill is therefore part of the expense for treatment and has to be allowed. Therefore, the petitioner is entitled to Rs.1,97,337/- (1,74,191+23,146) towards medical expenses. Thus, the petitioner is entitled to an enhanced amount of Rs.23,146/ - towards medical expenses.

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Towards compensation for loss of amenities in life, the Tribunal

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MACA 3208/2014

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has awarded an amount of Rs.10,000/-. Considering the nature of injuries and the hospitalisation and surgeries the petitioner had to undergo, an amount of Rs.25,000/- will be a just and reasonable compensation under this head. Therefore, the petitioner is entitled to Rs.15,000/- as enhanced compensation for loss of amenities in life.

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For compensation for pain and suffering, taking note of the nature of injuries of the petitioner, I am of the view that an amount of Rs.20,000/- can be awarded under the said head. Therefore, the petitioner is entitled to an enhanced compensation of Rs.5,000/- under the said head. 11. For compensation for continuing disability, the Tribunal awarded an amount of Rs.80,640/-. Ext.X1 is the medical certificate issued by the District Disability Board assessing the permanent physical disability of the petitioner as 20%. The Tribunal has taken 12% whole body disability. I do not think that it was proper for the Tribunal to scale down the percentage of disability at 12%. The Tribunal ought to have taken the percentage of disability at 20% as certified in Ext. X1 without mechanically pegging down the disability to 12%. Therefore, the percentage of disability of the

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MACA 3208/2014

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petitioner has to be taken as 20%. The petitioner was aged 37 years at the time of the accident and the multiplier to be applied is '15' and not '16' as per the decision in Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)] . Therefore, the petitioner is entitled to an amount of Rs.2,16,000/- (6000×12×20×15/100) towards continuing disability. Thus, the petitioner is entitled to an amount of Rs.1,35,360/- (2,16,000-80,640) as enhanced compensation towards continuing disability.

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Accordingly, the award of the Tribunal is modified and re-fixed

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as follows:-

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Sl.No	Heads	Amount awarded by Tribunal	Amount re- fixed by this Court	Enhanced amount
1	Transport expenses	Rs. 8,000/-	Rs. 8000/-	-
2	Loss of earning	Rs. 17,500/-	Rs. 30,000/-	Rs. 12,500/-
3	Extra nourishment	Rs. 7,000/-	Rs. 7,000/-	-
4	Damages to clothing and articles	Rs. 1,000/-	Rs. 1,000/-	-
5	Medical expenses	Rs. 1,74,191/-	Rs. 1,97,337/-	Rs. 23,146/-
6	Loss of amenities and enjoyments of life	Rs. 10,000/-	Rs. 25,000/-	Rs. 15,000/-

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MACA 3208/2014

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7	Expenses for bystander	Rs. 6,000/-	Rs. 6000/-	-
8	Expenses for pain and suffering	Rs. 15,000/-	Rs. 20,000/-	Rs. 5,000/-
9	Expenses for continuing disability	Rs. 80,640/-	Rs.2,16,000/-	1,35,360/-
	TOTAL	Rs.3,19,331/-	Rs.5,10,337/-	Rs.1,91,006/- =========

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In the result, this appeal is allowed in part and the petitioner is awarded an enhanced compensation of 1,91,006/- (Rupees One Lakh Ninety one Thousand Six only) with interest at the rate of 8% from the date of filing of the claim petition till realisation, with proportionate cost s. The 3^rd respondent Insurance Company shall deposit the additional compensation granted in this appeal along with interest 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

Haridas a v. Vs the Manager, United India Insurance Co. Ltd, Calicut

Case brief

What is this about?

What did the court decide?

Haridas a v. Vs the Manager, United India Insurance Co. Ltd, Calicut

Case brief

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What did the court decide?

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