Allowed

Shoukkathali v. Aji Jayan

Kerala HC10 Nov 2022MACA/1176/2014

Case brief

AI extract

What is this about?

The High Court set aside the Tribunal's low quantum award for the appellant. The Court refixed the monthly income to Rs.8,000, enhanced compensation for loss of earnings, pain and suffering, and other expenses, granting total additional compensation of Rs.4,01,000 with interest.

What did the court decide?

Total additional compensation of Rs.4,01,000 awarded to the petitioner, along with the original award sum, carrying interest at 7.5% per annum from the date of filing.

Shoukkathali Vs Aji Jayan — Civil Procedure and Limitation | 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 MRS. JUSTICE MARY JOSEPH

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THURSDAY, THE 10TH DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944

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MACA NO. 1176 OF 2014

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AGAINST THE AWARD DATED 31.01.2014 IN O.P(MV)No.207/2009 OF MOTOR

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ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA

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APPELLANT/PETITIONER :-

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SHOUKKATHALI

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S/O.MUHAMMED,KARIPPANKULAM HOUSE,
P.O.KARALAM,THRISSUR DISTRICT.

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BY ADV SRI.V.BINOY RAM

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RESPONDENTS/RESPONDENTS :-

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1AJI JAYAN
S/O.JAYAN,CHERAMPARAMBIL HOUSE,PANTHALOOR,
NELLAYI.P.O, THRISSUR DISTRICT,PIN-680305.

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2 LIJU S/O.VINCENT,KATTILEPEEDIKA HOUSE,PORATHUSSERY DESOM,VILLAGE,IRINJALAKUDA,PIN-680125.

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3 THE ORIENTAL INSURANCE COMPANY LTD BRANCH OFFICE,CITY HEIGHTS BUILDING,IST FLOOR, SOUTH JUNCTION,CHALAKUDY,PIN-680307.

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BY ADVS.
SRI.GEORGE CHERIAN SR.
SMT.LATHA SUSAN CHERIAN
SMT.K.S.SANTHI

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BY SMT.K.S.SANTHI

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 10.11.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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MACA No.1176 of 2014

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JUDGMENT

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Dated this the 10^th day of November, 2022

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This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Irinjalakuda (for short ‘the Tribunal’) on 30.01.2014 in O.P.(MV) No.207 of 2009.

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The appellant is the petitioner before the Tribunal and

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raising a claim for a sum of Rs.14,12,000/- as compensation, the Original Petition above was filed. The Tribunal has awarded Rs.5,01,670/- as compensation to the petitioner and directed the insurer to pay interest at the rate of 7.5% per annum from 27.02.2009, the date of filing of the Original Petition till the date of realisation. Being aggrieved by the quantum of compensation awarded by the Tribunal the petitioner has approached this Court in the appeal on hand.

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For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to

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3 in accordance with their status in the Original Petition.

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MACA No.1176 of 2014

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It is contended by Shri.Binoy Ram V, the learned counsel for the appellant that though the petitioner claimed to be an LIC Agent earning Rs.15,000/- monthly, the Tribunal had fixed his monthly income as Rs.4,000/- on a notional basis and calculated compensation on it’s basis. According to him, the monthly income fixed as Rs.4,000/- is too low when viewed in the backdrop of the year in which the motor accident was occurred and therefore, the Tribunal is unjustified in fixing it accordingly. According to him, the petitioner was examined before the Tribunal as PW1 and Exts.A9, A9(a), A9(b), A10, A10(a), A10(b), A11 and A11(a) were marked in evidence to establish his claim on monthly income, but overlooking those, the Tribunal fixed the monthly income as Rs.4,000/- notionally. The learned counsel has pointed out that though the petitioner had sustained serious multiple fractures, viz. comminuted fracture of right femur, comminuted fracture bicondylar right tibia, fracture fibula with right popliteal artery injury, fracture floor of acetabulum, fracture radial styloid and finger tip injury on right index finger the fixation of compensation by the Tribunal under various heads falls on the

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MACA No.1176 of 2014

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lower side. According to him, the Tribunal ought to have calculated the compensation for disability on the basis of monthly income, reasonably fixed.

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According to the learned counsel for the 3^rd respondent, the Tribunal has awarded just and reasonable compensation under various heads of compensation and therefore interference is uncalled for. According to her, the petitioner being an LIC agent, fluctuation in earning is likely to occur each year. The learned counsel canvassed for maintaining the monthly income fixed notionally by the Tribunal. The learned counsel further canvassed for maintaining the compensation awarded under various heads of compensation and seeks for dismissal of the appeal on hand.

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The accident in the case on hand was occurred on 11.12.2008. The petitioner was riding a Motorcycle bearing Registration No.KL 8/AH 484 through Karalam-Irinjalakuda public road and a tipper lorry bearing Registration No.KL-45/A 619 hit the Motorcycle in front of E.K.Nayanar Anganvadi at Porathissery. He sustained injuries. The driver of the tipper

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MACA No.1176 of 2014

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lorry was contended as responsible for the accident by his rash

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and negligent driving. The Original Petition was moved seeking compensation from the driver, owner and insurer of the tipper lorry, jointly and severally.

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1^st and 2^nd respondents in the Original Petition though

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served with notice did not turn up to contest it and thereby, were declared ex parte . The 3^rd respondent filed written statement admitting insurance coverage for the tipper lorry as on date of accident and disputing the averments of the petitioner regarding his age, occupation and monthly income. It is contended that the tipper lorry was driven without a certificate of fitness and thereby the conditions of policy issued was violated. The driver of the tripper lorry was alleged as not holding a valid driving licence and badge to drive it at the relevant time of accident.

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Before the Tribunal the petitioner mounted the witness box to depose as PW1 and also examined a Medical Practitioner who had treated him as PW2. Exts.A1 to A12 and Ext.X1 were marked on his side and Ext.B1, marked on the side of the respondents. The Tribunal appreciated the evidence on

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MACA No.1176 of 2014

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record and arrived at a sum of Rs.5,01,670/- as the compensation payable to the petitioner.

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Challenge of the petitioner mainly was on the quantum

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of compensation stands awarded by the Tribunal in his favour. As PW1, petitioner deposed about the injuries sustained by him in the motor accident with the involvement of the tipper lorry. According to him, immediately after the accident he was taken to Lal Hospital, Mapranam and shifted therefrom to Elite Mission Hospital, Koorkanchery, Thrissur. He was treated as inpatient from 11.12.2008 till 02.01.2009 and had also undergone an operation for fracture of his leg. He claimed to be an LIC agent earning Rs.15,000/- monthly. According to him after the motor accident, he was not in a position to do any job and walk without the support of any one. According to him the petitioner was examined by a Doctor to have the disability if any suffered by him, assessed. The Doctor, who had treated the petitioner was also examined as PW2. Though it was not written in Ext.X1, PW2 deposed during examination that the disability assessed and reported in Ext.X1 is only the whole body disability and it was

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MACA No.1176 of 2014

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omitted to be noted in Ext.X1. He also deposed to the effect that the percentage of disability assessed by him is based on examination of the petitioner and evaluation of his difficulties. The injuries sustained by the petitioner is well described in Ext.A6,

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the discharge summary issued from Elite Mission Hospital, Thrissur and are:-

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Comminuted fracture on right femur

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2.Comminuted fracture bicondylar right tibia

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Fracture fibula of right with popliteal artery injury

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Fracture floor of right acetabulum.

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Fracture radial styloid right

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Finger tip injury on right index finger.

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He was treated by wound debridement, open reduction

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and DCP fixation of femur, fixation of external fixator, repair with

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vein graft from left saphenous, STSG, repair of tip of index finger and lateral tibial traction. The treatment as inpatient continued for a period from 11.12.2008 to 02.01.2009. Two surgeries were undergone, one on 11.12.2008 and the other on 17.12.2008.

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In Ext.X1 the permanent disability of the petitioner is certified by the Medical Board as 30% and therefore, the Tribunal

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MACA No.1176 of 2014

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is justified in taking it as such for calculation of compensation. The Tribunal had taken loss of earnings for 4 months by fixing Rs.4,000/- as the monthly income notionally. Since the petitioner has marked Ext.A9, A9(a), A9(b), A10, A10(a), A10(b), A11 and A11(a) in evidence to establish his monthly income, this Court is inclined to refix the monthly income as Rs.8,000/- and the period for which he has lost income as one year. Thus, Rs.96,000/(Rs.8,000/- x 12) is arrived at as the compensation payable towards loss of earning. Rs.24,000/-, being the sum stands awarded by the Tribunal, the petitioner will get Rs.72,000/- as additional compensation.

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Rs.3,300/- stands awarded by the Tribunal towards bystander expenses being inadequate this Court is inclined to refix it as Rs.8,000/- and thereby the petitioner will get Rs.4,700/- as additional compensation. Rs.2,000/- stands awarded by the Tribunal as compensation towards transportation expenses also being low, this Court is inclined to award Rs.6,000/- and therefore, the petitioner will get Rs.4,000/- as additional compensation. As compensation towards damages to clothing, Rs.500/- was awarded

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MACA No.1176 of 2014

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by the Tribunal and this Court is inclined to award Rs.500/-more. Rs.25,000/- stands awarded as compensation towards pain and suffering being on the lower side, this Court is inclined to enhance it to Rs.60,000/- and therefore, the petitioner will get Rs.35,000/as additional compensation.

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The petitioner had suffered 30% permanent disability and therefore, this Court finds it appropriate to add 25% to the monthly income fixed in consideration of loss of future prospects and thus Rs.10,000/- (Rs.8,000 + 25% of Rs.8,000/-) is arrived at. On the basis of Rs.10,000/- the modified monthly income and the other factors adopted by the Tribunal maintained, Rs.4,68,000/(Rs.10,000x12x13x30%) is arrived at. Rs.1,87,200/- stands awarded by the Tribunal when deducted, the petitioner will get Rs.2,80,800/- as additional compensation. As compensation towards extra nourishment also, this Court is inclined to award Rs.5,000/- and therefore, the petitioner will get Rs.4,000/- as additional compensation.

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Though it was canvassed to modify the compensation stands awarded by the Tribunal under the head loss of amenities

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MACA No.1176 of 2014

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and enjoyments in life, it is noticed that Rs.20,000/- each was awarded by the Tribunal under that head and under the head loss of earning power. Therefore the argument to grant additional compensation is repelled being untenable.

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In reassessment as above, Rs.4,01,000/- (Rupees Four lakh one thousand only) [Rs.72,000 + Rs.4,700 + Rs.4,000 + Rs.500 + Rs.35,000 + Rs.2,80,800 + Rs.4,000] is arrived at as additional compensation and that is ordered to be paid in favour of the petitioner. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The 3^rd respondent being the insurer shall deposit the additional compensation now awarded with interest fixed on it and also the sum stands awarded by the Tribunal originally, with interest fixed on it (if not paid), within a period of two months from the date on which a certified copy of the judgment is received.

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M.A.C.A. stands allowed accordingly. Sd/-

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MARY JOSEPH SMA JUDGE

Shoukkathali v. Aji Jayan

Case brief

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What did the court decide?

Shoukkathali v. Aji Jayan

Case brief

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