Allowed

Telin Fernadez v. the Manager

Kerala HC8 Dec 2021MACA/3360/2016

Case brief

AI extract

What is this about?

The Kerala High Court allowed an appeal for enhanced compensation in a motor vehicle accident claim. The court fixed notional income at Rs.8,000, awarded loss of earnings for six months, and granted additional disability compensation totaling Rs.2,48,630 with interest.

What did the court decide?

Additional compensation of Rs.2,48,630 granted with interest and costs; total additional award includes Rs.30,000 for loss of earnings and Rs.2,18,630 for permanent disability.

Telin Fernadez Vs the 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 T.R.RAVI

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WEDNESDAY, THE 8TH DAY OF DECEMBER 2021/17TH AGRAHAYANA, 1943

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MACA NO. 3360 OF 2016

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AGAINST THE AWARD IN OPMV 465/2008 OF DISTRICT COURT & MOTOR

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ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR

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APPELLANT/PETITIONER:

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TELIN FERNADEZ

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S/O ROBIN FERNANDEZ, CASSEL HOUSE, VARAPPUZHA, VARAPPUZHA VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT.

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BY ADV SRI.A.N.SANTHOSH

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RESPONDENT/3RD RESPONDENT:

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THE MANAGER

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NEW INDIA ASSURANCE COMPANY LTD, EDATHIL BUILDING, THOPPUMPADY, KOCHI 682 005.

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BY ADV SMT.JESSY GEORGE

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.09.2021, THE COURT ON 08.12.2021 DELIVERED THE FOLLOWING:

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M.A.C.A. No.3360 of 2016

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T.R. RAVI, J.

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-------------------------------------------- M.A.C.A.No.3360 of 2016

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Dated this the 8^th day of December, 2021

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JUDGMENT

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On 22.3.2008, a bus driven in a rash and negligent manner,

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hit against a motorcycle in which the appellant was riding as a pillion, causing serious injuries to him. The appellant was taken to the Medical Trust Hospital, Ernakulam, and treated as an inpatient. He was working as a welder at the time of the accident and according to him, he was earning a monthly income of Rs.10,000/-. A claim petition was filed and the Tribunal awarded a sum of Rs.7,30,000/- as compensation. The appeal has been filed claiming enhanced compensation.

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Heard the counsel for the appellant and the

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respondents.

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The counsel for the appellant contended that the Tribunal went wrong in adopting a notional monthly income of Rs.6,000/-. It is submitted that a Coolie in 2008 would have earned Rs.6,500/- as monthly income going by the yardstick adopted in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd., reported in [AIR 2011 SC 2951] .

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M.A.C.A. No.3360 of 2016

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As such, it is submitted that it is unjust to adopt a sum of Rs.6,000/- in the case of the appellant, who was working as a welder. Another contention is that the Tribunal ought to have added 40% to the income towards future prospects. Regarding the loss of earnings, it is submitted that the Tribunal ought to have granted loss of earnings for a period of 6 months, taking into account the long spell of hospitalisation. It is also submitted that the functional disability ought to have been taken into account and the Tribunal ought to have granted Rs.1 lakh towards compenstion for loss of amenities.

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The counsel for the Insurance Company submits that there is no proof for the claim that the appellant was earning Rs.10,000/- as monthly income. It is also submitted that the Tribunal ought to have adopted 16 as the multiplier instead of 17 going by the age of the appellant. It is submitted that the Insurance Company has no objection for adopting Rs.6,500/- as monthly income following the yardstick in Ramachandrappa (supra) .

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Regarding the age of the appellant, Exhibit A12 SSLC book will show that the appellant was born on 4.4.1977 and hence his age as on 22.3.2008 will be less than 31 years but more than

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M.A.C.A. No.3360 of 2016

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30 years. As submitted by the counsel for the insurance Company, the multiplier to be adopted will hence be 16 as per the decision of the Apex Court in Sarla Verma vs. Delhi Transport Corporation & Ors. reported in [2010 (2) KLT 802] .

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Exhibits A10 and A11 will show that the appellant was a welder. Applicant was examined is PW1. He has stated in his evidence that he has been working as the welder from 1993 onwards. He has further stated that after the accident, he lost his job and he is not in a position to do his job independently and can work only as a helper. He has stated that he was earning Rs.10,000/- at the time of the accident. There is no contra evidence as far as these aspects are concerned. Even though the appellant was cross-examined, nothing has been brought out to discredit his version. In the above circumstances, the appellant is entitled to have the notional income fixed at an amount more than that to be adopted in the case of a Coolie. I am hence of the opinion that in the absence of documentary proof regarding the monthly income, a sum of Rs.8,000/- is to be adopted as the notional income.

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Exhibit X1 disability certificate issued by the Government Medical College Hospital, Kottayam will show that the

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appellant had 23.6% disability. It is seen from Exhibit X1 and Exhibit A5 that the appellant had suffered 7 fractures and the implants were removed in 2013. Considering the age of the appellant and the disability assessed, 40% of the income has to be added towards future prospects (see Erudhaya Priya v. State Express Transport Corporation Ltd. [2020(4)KLT 730(SC)] and Karthik Subramanian v. B.Sarath Babu & Ors. [2021 ACJ 993] .

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Considering the long period of hospitalisation and subsequent hospitalisation for the purpose of removal of implant, the appellant is entitled to loss of earnings for a period of 6 months. I am hence of the opinion that the appellant is entitled to enhanced compensation. A sum of Rs.48,000/- has to be awarded towards loss of earnings. After deducting Rs.18,000/- awarded by the Tribunal, the appellant will be entitled to an additional sum of Rs.30,000/- under that head. Applying the monthly income of the Rs.8,000/- and adding 40% towards future prospects, a sum of Rs.5,07,494/- (8000x140%x12x16x23.6%) has to be awarded towards compensation for permanent disability. After deducting the sum of Rs.2,88,864/- awarded by the Tribunal, the appellant will be entitled to an additional sum of Rs.2,18,630/- under that

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M.A.C.A. No.3360 of 2016

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head. The amounts awarded by the Tribunal under the other heads of compensation are reasonable.

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In the result the appeal is allowed. The appellant is awarded an additional compen sation of Rs.2,48,630/(Rupees Two Lakhs Forty Eight Thousand Six Hundred and Thirty only)

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with interest at the rate of 9% per annum from the date of filing of the claim petition (29.08.2008) till the date of realisation, with proportionate costs. The 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 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 appellants shall be in accordance with law.

Sd/-

T.R. RAVI

JUDGE

dsn

Telin Fernadez v. the Manager

Case brief

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Telin Fernadez v. the Manager

Case brief

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