Allowed

Arun Prakash v. Charles Makinson Sanders Boston, Mannach

Kerala HC2 Nov 2022MACA/118/2010

Case brief

AI extract

What is this about?

Appeal against the quantum of compensation in a motor accident claim. The High Court set aside the lower Tribunal sum, enhancing compensation to Rs. 23,680/- plus existing award, directing the insurer to deposit the total with interest.

What did the court decide?

The appeal was allowed; compensation enhanced by Rs. 23,680/-; insurer directed to deposit the updated compensation sum with interest within two months.

Arun Prakash Vs Charles Makinson Sanders Boston, Mannach — Insurance | 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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WEDNESDAY, THE 2ND DAY OF NOVEMBER 2022 / 11TH KARTHIKA, 1944

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MACA NO. 118 OF 2010

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AGAINST THE AWARD DATED 28.01.2009 IN OP(MV)NO.1928/2000 OF THE
ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM

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APPELLANT/CLAIMANT:

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ARUN PRAKASH,
S/O P. THANIKODI,
QUARTERS NO.1, BLOCK 1-4, COCHIN SHIPYARD,
KOCHI-15.
BY ADVS.SRI.P.SANTHALINGAM (SR.)
 SRI.S.SHARAN

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 SRI.A.D.SHAJAN

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RESPONDENTS/RESPONDENTS:

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1CHARLES MAKINSON SANDERS BOSTON,
MANNACHUSETTA,U.S.A.,
RESIDING AT 14-B,, LINK HEIGHTS,
PANAMPILLY NAGAR, KOCHI-36.
2NEW INDIA ASSURANCE CO.GULMOHOR,
FARAM CHOWK ROAD, KAIJAR DISTRICT RAIGOD,
MAHARASHTRA,
POLICY NO.111000/31/98/21076,
CERTIFICATE NO. 369/00000.
ADDL.3VIRAN AHUJA,
GULMOHOR FARAM CHOWK ROAD,
KAIJAT DISTRICT, RAIGOD,MAHARASHTRA.

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R2 BY ADV SRI.V.P.K.PANICKER

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
02.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.No.118 of 2010

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JUDGMENT

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Dated this the 2nd day of November, 2022

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This appeal is filed challenging an award passed by Additional Motor Accidents Claims Tribunal, Ernakulam (for short ‘the Tribunal’) on 28.01.2009 in OP(MV)No.1928/2000.

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For the sake of clarity, the parties to this appeal will hereinafter be referred to as the Petitioner and respondents 1 to 3 in accordance with their status before the Tribunal.

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The appellant is the petitioner who had filed the Original Petition before the Tribunal seeking for a sum of Rs.2,20,000/- as compensation. He allegedly had sustained injuries in a motor accident occurred at about 8.30 p.m. on 23.10.1998 near Link Heights road, Panampilly Nagar when a Tata Safari vehicle bearing Registration Number MH06/F-6881, hit on the back side of the bicycle in which he was pillion riding. He sustained injuires and was rushed to Medical Trust Hospital, Ernakulm. He was treated there as inpatient for 21 days. Contending that the accident was occurred due to the rash and negligent driving of the Tata Safari vehicle by its driver and

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M.A.C.A.No.118 of 2010

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claiming for a sum of Rs.2,20,000/- as compensation the above Original Petition was filed before the Tribunal.

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The driver and insurer of the Tata Safari vehicle were

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arrayed as respondents 1 and 2. Lateron the owner of the vehicle was also impleaded as additional 3^rd respondent. 1^st and 3^rd respondent remained ex-parte. 2^nd respondent has filed written statement admitting insurance coverage for the Tata Safari vehicle as on relevant time of accident. It was contended that the 1^st respondent who was driving the vehicle was holding only a learner’s licence and the owner by permitting him to drive the vehicle has violated the terms and conditions of policy. Accordingly the insurer sought for exoneration from liability to indemnify the insured.

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Before the Tribunal both parties adduced evidence. On the side of the petitioner, himself was examined as PW1 and Exhibits A1 to A9 were marked. On the side of the respondents Ext.B1 was marked. The Tribunal appreciated the entire evidence and found negligence on the part of the driver of the Tata Safari vehicle who is none otherthan the 1^st respondent in the Original Petition. The Tribunal also found entitlement for

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M.A.C.A.No.118 of 2010

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the petitioner in view of the injuries sustained by him for getting compensation. It arrived at a sum of Rs.75,112/- as the compensation payable and fixed liability on the 2^nd respondent to indemnify the insured. The compensation arrived at was directed to be deposited with interest at the rate of 7% per annum from date of filing of the original petition till the date of realisation together with proportionate costs. Aggrieved by the quantum arrived at as compensation, the petitioner has approached this Court in the appeal on hand.

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It is contended by Sri.A.D.Shajan, the learned counsel for the petitioner that the award of compensation by the Tribunal under various heads is disproportionate to the sufferings of the petitioner. According to him, the petitioner had sustained serious injuries but without truly adverting to those the Tribunal has arrived at compensation on the lower side and the petitioner is aggrieved. It is contended by the learned counsel that 16 was adopted by the Tribunal as the multiplier in the place of “18”, the correct one. Accordingly, modification and enhancement of the compensation stand awarded is sought.

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M.A.C.A.No.118 of 2010

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It was contended by Sri.V.P.K Panicker, the learned

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counsel for the 2^nd respondent that the compensation awarded under various heads being just and reasonable, interference sought is unwarranted. However, the learned counsel did not stand in the way of adopting 18 as the multiplier.

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The petitioner is aged 18 years at the relevant time of accident. He had sustained lacerated wound over left elbow joint, abrasions over right cheek and right knee joint, swelling and deformity over left elbow, parasthesia over ulnar nerve distribution and comminuted supracondylar fracture of left humerus. He had undergone an operation for interlocking nailing and expended a sum of Rs.31,337/- towards treatment. He was a native of Ernakulam District and the treatment was availed from Medical Trust Hospital, Ernakulam. The treatment as inpatient continued for 21 days. Under the

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head extra nourishment as well as bystander expenses the Tribunal has awarded a lumpsum of Rs.2,100/-. Tribunal is not justified in awarding so. This Court finds it just and reasonable to award Rs.2,100/- each under those heads. Since Rs.2,100/- stands already awarded, the petitioner will get

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M.A.C.A.No.118 of 2010

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Rs.2,100/- as additional compensation. Under the head Transportation expenses the Tribunal has awarded Rs.500/and this Court is inclined to enhance it to Rs.1000/-, so that, the petitioner will get Rs.500/- additionally. The Tribunal has awarded Rs.31,337/- towards treatment expenses, which being established by the medical bills marked in evidence is not interfered with. Under the heads pain and sufferings and loss of amenities and enjoyments in life Rs.8,000/- and Rs.6,000/- respectively stands awarded by the Tribunal being inadequate, this Court is inclined to modify those by enhancing to Rs.15,000/- and Rs.10,000/- respectively. Therefore, petitioner will get Rs.7,000/- and Rs.4,000/- respectively as additional compensation under those heads. The Tribunal has taken Rs.1,250/- as the monthly income on a notional basis and the compensation for disability was assessed on it’s basis. The accident was occurred in the year 1998 and this Court finds justification in refixing it to Rs.1,500/-. The correct multiplier being 18, is adopted. The disability of the petitioner was assessed by an independent doctor and certified in a certificate issued to him and marked in evidence as Ext.A9.

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M.A.C.A.No.118 of 2010

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The Tribunal has taken the percentage of disability certified in Ext.A9 as such for calculation of compensation. Challenge being not raised against that, this Court is inclined to maintain it.

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When compensation for disability is reassessed with Rs.1,500/-, the refixed monthly income, “18” the correc t multiplier, the percentage of disability maintained, Rs.38,880/is found payable as compensation. Rs.28,800/- stands already awarded by the Tribunal when adjusted in the above sum, the petitioner will get Rs.10,080/- as additional compensation.

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In the reassessment, a total sum of Rs.23,680/(Rupees Twenty Three Thousand Six Hundred and Eighty only) is found payable as additional compensation. 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 2^nd respondent insurer shall deposit the aforesaid sum with interest at the rate as fixed, as well as the sum stands originally awarded by the Tribunal as compensation with interest at the rate specified in the original award (if not paid till date), within a period of two months from the date on which

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M.A.C.A.No.118 of 2010

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a certified copy of this judgment is received.

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MACA stands allowed accordingly.

Sd/-

MARY JOSEPH

JUDGE

MJL

Arun Prakash v. Charles Makinson Sanders Boston, Mannach

Case brief

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Arun Prakash v. Charles Makinson Sanders Boston, Mannach

Case brief

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