Allowed

Justin Jose v. Royal Sundaram Alliance Insurance Company Ltd.

Kerala HC16 Sept 2022MACA/1065/2017

Case brief

AI extract

What is this about?

The High Court set aside the Tribunal's award and enhanced compensation for the appellant who sustained fractures in a vehicular accident. The Court directed the insurance company to pay enhanced damages for disability, pain and suffering, loss of amenities, and salary loss.

What did the court decide?

Appellant awarded enhanced total compensation of Rs. 2,94,967/- with interest at 5% on enhanced amounts.

Justin Jose Vs Royal Sundaram Alliance Insurance… — Motor Accident Claims | Kerala HC (2022)

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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 C. JAYACHANDRAN

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FRIDAY, THE 16TH DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944

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MACA NO. 1065 OF 2017

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AGAINST THE ORDER/JUDGMENT IN OPMV 264/2013 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL , IRINJALAKUDA

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APPELLANT:

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JUSTIN JOSE
PANTHALOOKKARAN HOUSE,PERAMBRA DESOM & P.O,KODAKARA
VILLAGE,MUKUNDAPURAM TALUK.

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BY ADVS.
SRI.P.V.BABY
SRI.A.N.SANTHOSH

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RESPONDENT:

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ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD.
WHITES ROAD,ROYAPETTAH,CHENNAI-600014.

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

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 16.09.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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MACA NO. 1065 OF 2017

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JUDGMENT

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The claimant before the Motor Accidents Claims Tribunal, Irinjalakkuda, in OP(MV) No.264/2013 is the appellant herein. He sustained serious injuries in an accident which occurred on 02.02.2013, when his motor cycle collided with a car. He assails the Award dated 25.10.2016, essentially on the inadequacy of the compensation granted by the Tribunal.

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Heard Sri.A.N.Santhosh, learned counsel for the

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appellant and Sri.Mathews Jacob, learned senior counsel for the 3^rd respondent Insurance Company.

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Perused the records.

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Learned counsel for the appellant submitted that the

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appellant/injured, aged 29 years, was employed in Apollo tyres when the accident took place. Both bones of his right leg were fractured. A disability certificate was issued vide Ext.A8, certifying 10.62% disability. However, the same was reduced by the Tribunal to 6%, merely stating that the disability fixed by the doctor is on the higher side, which course is not open to the Tribunal according to the learned Counsel. Another contention raised by the learned Counsel is that as per Ext.A12 salary certificate, the loss of salary sustained by the injured, pursuant

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MACA NO. 1065 OF 2017

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3

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to the accident, is Rs.99,043/-. However, the Tribunal has reckoned Rs.85,491/- only, reducing certain allowance component etc, which course is also not legal. Finally, the learned counsel contended that the amount granted under the heads – ‘pain and sufferings’ – ‘loss of amenities’ are on the lower side.

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Per contra, these submissions were refuted by the learned senior counsel for the insurance company. Senior counsel submitted that the disability of 10.62% has not affected the earning capacity of the injured, as can be seen from Ext.A10 certificate, which says that the injured is fit to rejoin service. Therefore, his earnings are not affected and hence no compensation is liable to be given on that count. It was also pointed out that Ext.A8 disability certificate also speaks of the bones having been united fully, wherefore, the disability assessed at 10.62% has no legal basis.

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Having heard the learned counsel, this Court will address the issues one by one. This court is of the definite opinion that the disability certified in Ext.A8 at 10.62% is not liable to be interfered with by the Tribunal, especially when no tangible reason has been stated for doing so. Assessing disability is the job of an expert, which has been done by a

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MACA NO. 1065 OF 2017

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specialized doctor, who represents the Government service. Except for weighty and lofty reasons, a court of law should not interfere with such assessment. Therefore, the disability certified vide Ext.A8 has to be reckoned for the purpose of compensation.

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The next aspect is with respect to loss of salary certified vide Ext.A12. It goes without saying that if the injured had not met with an accident and had attended duties, he would have fetched any amount of Rs.99,043.45/- and that the loss entailed is the direct consequence of the accident, where he was seriously injured and constrained to be on rest for a period of four months. Therefore, reducing certain amounts, from the emoluments, treating the same as allowance etc is not justified. This court therefore directs that the amount of Rs.99,043/- as stated in Ext.A12 is liable to be reckoned.

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Regarding ‘pain and suffering’, what has been granted by the Tribunal is Rs.25,000/-. This court takes note of the fact that the appellant/petitioner has suffered both bone fracture on his right leg. He was treated as an in-patient for a period of 7 days and was also advised rest for a period of four moths. In such circumstances, a nominal increase under the head ‘pain and sufferings’ would serve the interests of justice.

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MACA NO. 1065 OF 2017

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Accordingly the same is enhanced to Rs.30,000/-.

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The head ‘loss of amenities’ in the peculiar facts and circumstances of this case assumes importance. As contended for by the learned senior counsel for the 3^rd respondent insurance company, the petitioner/appellant had not suffered any serious loss on account of earning capacity, especially in the light of Ext.A10 certificate, where he was said to be fit to rejoin duty. Except for the period that he could not work, the petitioner had not suffered any permanent loss of earning capacity on account of the disability certified vide Ext.A8. However, it equally remains a fact that the disability assessed at 10.62% will affect the quality of life of the petitioner/appellant in other walks of life, albeit not affecting his earning capacity. This aspect is liable to be reckoned in law and the relief in respect of the same can be accommodated under the head ‘loss of amenities’. Therefore, the amount of Rs.15,000/- granted by the Tribunal is very much on the lower side. This court is of the opinion that a sum of Rs.50,000/- at least is liable to be reckoned, especially when the disability has been certified to be at 10.62%. It cannot be said as a rule of thumb that the disability has its reflection only on the earning capacity. Ever so many instances surfaces where the disability may not affect the earning capacity, but

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MACA NO. 1065 OF 2017

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would affect positively, other aspects of the life of the injured. This court thus justifies the enhancement of the compensation payable under the head ‘loss of amenities’ from 15,000 to 50,000.

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In the result, this MACA is allowed and the amount of compensation payable to the appellant/petitioner is re-worked as indicated in the tabular statement shown here below.

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Sl. No.	Head of claim	Amount awarded by the Tribunal(Rs)	Total amount after enhancem ent in appeal (Rs.)
1	Loss of earnings	85,491/-	99,043/-
2	Transportatio n Expenses	3000	3000
3	Extra Nourishment	1500	1500
4	Damage to clothings	1000	1000

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MACA NO. 1065 OF 2017

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5	Attendent expenses	2100	2100
6	Pain and Suffering	25000	30,000
7	Permanent Disability	61200	[5000x12x 17x10.62/1 00] 1,08,324/-
8	Loss of earning power	NIL	NIL
9	Loss of Amenities	15000	50,000
10	Anticipated Medical Expenses	NIL	NIL
11	Mental Dejection	NIL	NIL
	Total	1,94,291/-	2,94,967/-
	Amount enhanced 1,94,291)	=Rs.1,00,676/-	(2,94,967 –

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The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amounts at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. The claimants shall

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MACA NO. 1065 OF 2017

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produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest on enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition.

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 sd/-

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C. JAYACHANDRAN

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JUDGE

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Nsd

Justin Jose v. Royal Sundaram Alliance Insurance Company Ltd.

Case brief

What is this about?

What did the court decide?

Justin Jose v. Royal Sundaram Alliance Insurance Company Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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