Allowed

K.v.Biju v. the Manager, United India Insurance Co. Ltd.

Kerala HC2 Dec 2021MACA/444/2015

Case brief

AI extract

What is this about?

The Kerala High Court allowed an appeal by a paraplegic appellant seeking enhanced compensation for a motor accident. The Court recalculated damages for lost earnings, permanent disability, and future bystander expenses based on a monthly income of Rs. 8,500 and awarded an additional sum of Rs. 19,51,000 with interest.

What did the court decide?

An additional compensation of Rs. 19,51,000 awarded with interest at 9% per annum from the date of filing, excluding the 91-day condoned delay period.

K.v.Biju Vs the Manager, United India Insurance Co. Ltd. — 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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THURSDAY, THE 2^ND DAY OF DECEMBER 2021/11TH AGRAHAYANA, 1943

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MACA NO. 444 OF 2015

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AGAINST THE AWARD IN OPMV 249/2012 OF MOTOR ACCIDENT CLAIMS

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TRIBUNAL, PALA

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APPELLANT/PETITIONER:

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K.V.BIJU S/O VARGHESE,KARIKUTTIYIL (H)., ARIVILAMYAL (PO),KANTHIPPARA VILLAGE

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BY ADVS. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.K.B.ARUNKUMAR

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RESPONDENT/RESPONDENT NO.3:

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THE MANAGER, UNITED INDIA INSURANCE CO. LTD. DEIVASAHAYAM BUILDING, PONKUNNAM PIN-686506

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BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB (SR.)

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24.9.2021, THE COURT ON 02.12.2021 DELIVERED THE FOLLOWING:

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M.A.C.A. No.444 of 2015

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T.R. RAVI, J.

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M.A.C.A. No.444 of 2015

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Dated this the 2^nd day of December, 2021

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JUDGMENT

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On 21.1.2012, the autorickshaw in which the appellant was travelling was hit by a bus, resulting in grievous injury to the appellant, including fracture of the vertebra. The accident occurred due to the negligence of the driver of the autorickshaw as per the charge sheet. Since a contention was raised by the Insurance Company that the negligence was that of the driver of the bus, the driver, insurer and owner of the bus, were impleaded as parties before the Tribunal, but later they were found to be not necessary parties since the negligence was found on the part of the driver of the autorickshaw.

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In the claim petition preferred by the appellant before the Tribunal, the Tribunal awarded an amount of Rs.18,54,050/- as compensation. The claimant has preferred this appeal seeking enhanced compensation.

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Heard the counsel for the appellant and the counsel for the respondent.

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The accident occurred on 21.1.2012. According to the

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M.A.C.A. No.444 of 2015

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appellant, he was working as a Supervisor of a Contractor, who was examined as PW2. He claimed that he was earning Rs.12,000/- per month as salary and Exhibit A8 salary certificate has been produced. However, the Tribunal found that the oral evidence of PW2 cannot be believed in order to fix the salary at Rs.12,000/-. The Tribunal instead adopted a notional monthly income of Rs.8,000/-. It is submitted that adopting the yardstick in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd., reported in [AIR 2011 SC 2951] , a Coolie in the year 2012 would have been earning Rs.8,500/- and hence fixing a notional income of Rs.8,000/- was not justified. It is further submitted that the Medical Board had found that the claimant had 75% disability. The Tribunal had the benefit of seeing the claimant who was brought before the Tribunal in a "lying down" position. The Tribunal noted that the claimant was not even able to get out of the bed and that he cannot move his lower limbs and was a paraplegic. However, even after noticing that the appellant cannot continue with any avocation, the Tribunal did not consider it as a case of 100% disability. The counsel for the appellant further submits that going by the decision in Pappu Deo Yadav v. Naresh Kumar & Ors. reported in [AIR 2020 SC 4424] , the

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M.A.C.A. No.444 of 2015

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monthly income ought to have been increased with future prospects, which also was not done by the Tribunal. Yet another contention taken is that loss of earning was considered only for one month, but admittedly, the appellant was in hospital for 104 days. It is further submitted that the appellant will require a full time bystander throughout his life and hence the dictum in Kajal V. Jagdish Chand reported in [2020 (1) KLT 743] , has to be followed and bystanders expenses should be a calculated following the multiplier method. The counsel for the insurer submitted that in the absence of evidence regarding salary, the yardstick in Ramachandrappa (supra) can be followed and future prospects can be awarded on the base of Pappu Deo Yadav (supra) . It is submitted that claim was preferred within 2 months of the accident and loss of earnings can be computed for 2 months since for the subsequent periods the compensation under permanent disability will take care of the interests of the appellant. Regarding the claim for a higher compensation under the head pain and suffering, it is pointed out that the Tribunal had awarded a sum of Rs.3,60,000/towards loss of amenities, which is just and fair compensation.

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Having considered the contentions on either side, I am

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of the opinion that the appellant is entitled to enhanced

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compensation. The monthly earnings is to be treated as Rs.8,500/and has to be awarded for two months. After deducting the amount awarded by the Tribunal, the appellant will be entitled to an additional sum of Rs.9,000/- towards loss of earnings. Regarding the compensation for permanent disability the amount of Rs.8,500/- has to be increased by 40% towards future prospects, which would come to Rs.11,900/-. Based on the said monthly income, the compensation for permanent disability will be Rs.21,42,000/- (11900x12x15). After deducting the sum of Rs.10,80,000/- awarded by the Tribunal, the appellant will be entitled to additional amount of Rs.10,62,000/- under that head. The accident happened in 2012. The appellant will have to incur a nominal amount of Rs.6,000/- per month towards bystanders expenses. Calculating the future bystanders expenses under the multiplier method, the appellant will be entitled to a sum of Rs.10,80,000/- (6000x12x15). After deducting the sum of Rs.2,00,000/- awarded by the Tribunal, the appellant will be entitled to an additional sum of Rs.8,80,000/- under that head. I find that the Tribunal has granted just and fair compensation under the other heads.

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6 . In the result, the appeal is allowed. The appellant is

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awarded an additional compensation of Rs.19,51,000/- (Rupees Nineteen Lakhs Fifty One Thousand only) with interest at the rate of 9% per annum from the date of filing of the claim petition (20.03.2012) till the date of realisation, with proportionate costs. The appeal was filed with a delay of 91 days. By order dated 24.03.2021, 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 91 days. The interest payable on the enhanced compensation shall be hence excluding the period of 91 days. 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.

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Sd/-

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T.R. RAVI JUDGE

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dsn

K.v.Biju v. the Manager, United India Insurance Co. Ltd.

Case brief

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K.v.Biju v. the Manager, United India Insurance Co. Ltd.

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