Allowed

Mohanan v. Krishnan Kutty

Kerala HC22 Sept 2021MACA/654/2013

Case brief

AI extract

What is this about?

In a motor accident claim appeal, the High Court enhanced the compensation awarded by the Tribunal. While rejecting the total dis location for disability due to lack of a certificate, the Court awarded specific sums for pain and suffering, loss of amenities, and future medical expenses, resulting in an increase of Rs. 1,08,000/-.

What did the court decide?

The compensation was enhanced by a further sum of Rs. 1,08,000/- with interest at 9% per annum from 28.12.2009.

Mohanan Vs Krishnan Kutty — Money Laundering | Kerala HC (2021)

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MACA NO. 654 OF 2013

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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 22^ND DAY OF SEPTEMBER 2021 / 31ST BHADRA, 1943

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MACA NO. 654 OF 2013

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AGAINST THE AWARD DATED 06.08.2012 IN OPMV NO.2485/2009 OF ADDL. MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM

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APPELLANT/PETITIONER:

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MOHANAN AGED 56 YEARS, S/O.KUMARAN, VELAMPARAMBIL HOUSE, CHETHICODE.P.O, EDAKKATTUVAYAL, ERNAKULAM DISTRICT. BY ADVS. SRI.ABRAHAM K.JOHN SMT.C.G.ARUNDHATHI

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RESPONDENTS:

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1 KRISHNAN KUTTY S/O.KUTTAPPAN, ELIMMEL HOUSE, PEEDIKAMUGHAL, NECHOOR.P.O, MANEED, ERNAKULAM DISTRICT, PIN-686664. 2 THE NEW INDIA ASSURANCE COMPANY LTD., EDATHIL BUILDING, THOPPUMPADY, ERNAKULAM DISTRICT, KOCHI, PIN-682005. 3 NATIONAL INSURANCE COMPANY LTD., CHITTOOR ROAD, SOUTH JUNCTION, ERNAKULAM DISTRICT, KOCHI-682016. BY ADVS. SRI.P.JAYASANKAR, FOR R2 SRI.P.K.SANTHAMMA, FOR R3 SRI.M.A.GEORGE, SC FOR NIC

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THIS MOTOR ACCIDENT CLAMS APPEAL HAVING COME UP FOR ADMISSION ON 02.09.2021, THE COURT ON 22.09.2021 DELIVERED THE FOLLOWING:

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MACA NO. 654 OF 2013

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T.R.RAVI, J.

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M.A.C.A.No. 654 of 2013

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Dated this the 22^nd day of September, 2021

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J U D G M E N T

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The appellant, a toddy tapper, while riding a scooter was hit by

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a motor cycle ridden by the 1^st respondent in a rash and negligent manner. The accident happened on 28.08.2009 at about 7 p.m. The appellant was taken to Vijayakumara Menon Hospital, Tripunithura and remained as an inpatient from 28.08.2009 to 08.09.2009 and he

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had to undergo surgery and open reduction with internal fixation. Treatment was continued with Physiotherapy. The injuries sustained were fracture radius and ulna of right forearm, fracture glenoid cavity of right scapula, abrasions on chest and right foot and contusion on right shoulder. The appellant was advised total rest for three months after discharge on 08.09.2009. He claimed that due to

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the accident and the injuries sustained, he was affected by peripheral neoropathy, systematic hyper tension and diabetes and admitted to Amrita Institute of Medical Sciences on 04.10.2010 and his left leg below knee was amputated. It is his case that during the treatment and thereafter, he is not able to do any work. He

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MACA NO. 654 OF 2013

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preferred a claim for Rs.3,49,500/-. The Tribunal awarded a sum of Rs.98,579/- towards compensation. The appeal is filed seeking enhancement of the compensation.

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Heard Sri Abraham K.John, learned counsel for the appellant and Smt.P.K.Santhamma, learned counsel for the 2^nd respondent Insurer.

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The learned counsel for the appellant contended that the appellant was aged 53 years at the time of the accident. He was earning a monthly income of Rs.10,000/-. The Tribunal had granted only a sum of Rs.3,037/- on the basis of Ext.A11 which is the certificate issued by the Inspector of Toddy Welfare Fund stating that the wage due to the petitioner for the year 2009-10 was Rs.63,452/-. Admittedly, the appellant met with an accident on 27.08.2009. As such he had worked only for five months during the relevant period. The monthly income taken for the purpose of computation of the compensation by the Tribunal is a mistake, since the amount of Rs.63,452/- cannot be treated as the wages for 12 months. I am hence inclined to accept the contention of the learned counsel for the appellant that the Tribunal ought to have accepted

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the claim of Rs.10,000/- made in the application. The loss of earning awarded is for a period of four months. Since there is no evidence available regarding the factum that he had not worked for

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MACA NO. 654 OF 2013

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more than four months, I am of the opinion that there is no necessity to increase the period taken for calculating the loss of earnings. The appellant submits that within a year after the accident his leg also had to be amputated and he could not take a disability certificate and produce the same before the Tribunal, which was the reason why no amount was granted by the Tribunal towards compensation for permanent disability. According to the learned counsel for the appellant, the appellant has suffered 100% functional disability and he is not in a position to do any work, much less, the work of a toddy tapper. It is also submitted that the implant is admitted and can be seen from the discharge summary. But no amount was awarded towards future medical expenses.

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The learned counsel for the 2^nd respondent submitted that the amputation of the leg cannot be linked to the accident, in the absence of clear evidence. The certificate issued as Ext.A10 from the Amrita Institute of Medical Sciences shows that the appellant was suffering from Type II Diabetic Mellitus, Peripheral Neuropathy and Systematic Hypertension and peripheral occlusive vascular disease. The certificate does not in any way link the above conditions to the accident that the appellant had suffered. As such, it would not be possible to link the amputation to the accident. However, the fact remains that the petitioner had fracture in his right

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MACA NO. 654 OF 2013

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arm, which was corrected by surgery and implant. There is no reason to treat it as a case where the appellant did not suffer any disability since he is not able to produce a disability certificate. However, in the absence of a disability certificate, the Tribunal ought

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to have compensated the appellant under the heads amenities and enjoyment of life and pain and suffering. I am of the opinion that the appellant is entitled to a sum of Rs.40,000/- towards pain and suffering and a sum of Rs.50,000/- towards loss of amenities and enjoyment in life. I am also of the opinion that the appellant is entitled to a sum of Rs.20,000/- towards future medical expenses. The compensation payable to the appellant is hence reworked on the basis of the aforesaid findings and the same will be as shown in the table below:

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Sl. No.	Head of Claim	Amount claimed (Rs)	Amount awarded (Rs)	Amount awarded/modified bythis Court
1	Loss of Earning	5000	12000	40000(10000x4)
2	Transportation expenses	5000	1000	1000
3	Damage to clothing	500	500	500
4	Extra nourishment	2000	1000	1000
5	Expenses for treatment	50000	51479	51479
6	Bystanders expenses	2000	2600	2600
7	Shock, pain and sufferings	50000	20000	40000
8	Loss of amenities and enjoyment in life	10000	10000	50000

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MACA NO. 654 OF 2013

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9	Future medical		20000
	expenses
	Total	98579	206579

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In the result, the appeal is allowed. The compensation granted by the Tribunal is enhanced by a further sum of Rs.1,08,000/- (Rupees One Lakh Eight Thousand only) with interest at 9% per annum on the enhanced compensation from 28.12.2009 till the date of realisation, with proportionate costs, excluding the period of delay of 72 days, which was condoned as per order dated 09.03.2021 in C.M.Application No.841/2013, with a condition that the appellant will not be entitled to interest for the period of delay of 72 days. The 2^nd respondent 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

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compensation to the appellant shall be in accordance with law.

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Sd/- /-

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T.R.RAVI JUDGE

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dsn

Mohanan v. Krishnan Kutty

Case brief

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Mohanan v. Krishnan Kutty

Case brief

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