Allowed

A.P.Raju v. Gireesh E.N.

Kerala HC23 Nov 2022MACA/1318/2012

Case brief

AI extract

What is this about?

The High Court modified the Motor Accidents Claims Tribunal award in a case involving a fractured femur. The Court increased compensation for loss of earnings, added sums for clothing, nourishment, and bystander expenses, and enhanced awards for pain and suffering and loss of amenities, allowing the appeal.

What did the court decide?

Additional compensation of Rs. 88,000 with interest to be deposited by the insurer within two months.

A.P.Raju Vs Gireesh E.N. — 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 MRS. JUSTICE MARY JOSEPH

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WEDNESDAY, THE 23RD DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944

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MACA NO. 1318 OF 2012

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AGAINST THE AWARD DATED 08.11.2010 IN O.P(M.V) NO.319/2006 OF THE
MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR

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APPELLANT/PETITIONER:

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A.P.RAJU, S/O.PARAMU, AGED 37 YEARS,
KANNAMVEETTIL HOUSE, VALAPPU, OACHAMTHURUTH P.O, VYPIN.

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BY ADVS.SRI.C.ARUN PRASANTH
 SRI.A.S.BRIJESH
 SMT.ROOPA RAMACHANDRAN

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RESPONDENTS/RESPONDENTS 1 TO 3:

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1GIREESH E.N., ERUMBUKUTHIKKAL, PAZHANGANAD,
KIZHAKKAMBALAM P.O, ERNAKULAM, PIN- 686 661.

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2PRAVEEN KUMAR V.C, S/O.CHINTAHMABARAM V.A,
VELLASSERY HOUSE, MALIPURAM, ELAMKUNNAPUZHA P.O,
ERNAKULAM 686 660

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3UNITED INDIA INSURANCE COMPANY LIMITED,
SHARANYA HOSPITAL ROAD, KOCHI-682 011.

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BY ADV SRI.B.PREMNATH E
R3 BY SRI.JOHN JOSEPH VETTIKAD, SC

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD

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ON 23.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.No.1318 of 2012

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JUDGMENT

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Dated this the 23^rd day of November, 2022

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This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, North Paravur (for short ‘the Tribunal’) on 08.11.2010 in O.P(M.V) No.319/2006. The appellant is the petitioner before the Tribunal. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition.

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The petitioner claimed to have sustained injuries in a road traffic accident occurred on 12.11.2005. He was walking along Puthuvype beach road and was knocked down by a Motorcycle bearing Registration No.KL 17/9341 near Puthuvype library due to the rash and negligent riding by its rider. He sustained fracture of shaft of femur and injuries on

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face as well as various other parts of the body. Original Petition was filed by him seeking for a sum of Rs.1,50,000/as compensation from the owner, rider and insurer of the

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M.A.C.A.No.1318 of 2012

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Motorcycle jointly and severally. They were arrayed as respondents 1 to 3 in the Original Petition.

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1^st and 2^nd respondents though served with notice

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did not turn up to contest the Original Petition and therefore, declared ex parte. The 3^rd respondent has filed written

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statement admitting issuance of a policy for the Motorcycle bearing Registration No.KL 17/9341 and coverage of it under the policy as on date of accident. It was contended that the accident was caused due to the negligence of the petitioner himself and that the sum claimed as compensation is excessive.

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Petitioner had adduced oral as well as documentary evidence before the Tribunal. Oral evidence adduced consists of his own testimony as PW1 and documentary evidence consist of Exts.A1 to A7. The 3^rd respondent had also obtained permission to contest the Original Petition with all available defences by an order passed by the Tribunal in I.A.No.902/2010.

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On appreciation of the entire evidence, the Tribunal arrived at a finding on negligence on the part of the

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M.A.C.A.No.1318 of 2012

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rider of the Motorcycle who was arrayed as the 2^nd respondent in the Original Petition and thus fixed the liability on the 3^rd respondent to indemnify the insured. The Tribunal has arrived at Rs.53,223/- as the compensation payable to the petitioner. Respondent No.3 was directed to deposit the

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same with interest at the rate of 7% per annum from the date of filing of the Original Petition till the date of realisation. The petitioner was highly aggrieved by the quantum stands arrived at by the Tribunal as compensation and therefore, approached this Court in the appeal on hand seeking for modification.

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Sri.Arun Prasanth, the learned counsel for the appellant has contended that compensation awarded by the Tribunal under various heads are inadequate and disproportionate to the injuries sustained by him in the motor accident. According to him, the Tribunal failed in fixing a reasonable sum as his monthly income. It is contended that the Tribunal also failed to take a reasonable period for assessment of compensation for loss of income.

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It is also pointed out by the learned counsel that

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M.A.C.A.No.1318 of 2012

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the nature of the injuries sustained by him is such that the help of a bystander and consumption of nutritious food are inevitable. The Tribunal failed to award any sum as compensation under those heads. According to the learned counsel, the Tribunal failed to award a reasonable sum under

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the head transportation. It is pointed out by the learned counsel that under the heads pain and suffering and loss of amenities and enjoyments in life also the Tribunal failed to award compensation proportionate to the injuries sustained. Accordingly, a modification of the sums awarded under each heads of his claim was sought.

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The 3^rd respondent has not turned up to argue the

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matter.

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This Court finds from the accident register cum wound certificate marked in evidence as Ext.A4 that the petitioner was admitted at Lisie Hospital, Cochin, following the accident. He had sustained abrasions on the mandible and contusions on the forehead and scalp, tenderness on right thigh and a mild head injury. In the X-ray, fracture shaft of femur was confirmed. As per Ext.A5, the discharge

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M.A.C.A.No.1318 of 2012

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summary issued from the very same hospital, CILN was done on 14.11.2005 and the sutures were removed on 24.11.2005. At the time of discharge on 24.11.2005, he was advised non weight bearing right LL crutch walking, Quadriceps/hamstring/knee bending exercises and

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medication. He was asked to review after six weeks at the outpatient department. Ext.A7 is the treatment certificate issued from the said hospital wherein he was directed to attend the hospital for removal of implants from the right femur on 13.10.2010. The expenses incurred for treatment stands proved through Ext.A6 series as Rs.27,223/-.

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It is pertinent to note from the impugned award that Rs.4,000/- was awarded by the Tribunal as compensation for loss of earnings. There was no discussion on the monthly income taken and the period for which the loss of income was considered. This Court finds the award of compensation under the head loss of earning disproportionate to the nature of injuries sustained and the treatment procedures undergone. The petitioner claimed to be a fish vendor earning Rs.6,000/- monthly. The profession

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M.A.C.A.No.1318 of 2012

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as a fish vendor is a self employment and therefore the monthly income is difficult to be proved. The petitioner did not also adduce any evidence to establish his monthly income. The accident being occurred in the year 2005, Rs.5,000/- is found a reasonable sum to be considered as the

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monthly income of the petitioner being a fish vendor.

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In view of the fracture sustained to shaft of femur this Court finds it reasonable to take 8 months’ period for assessment of compensation for loss of earning. While compensation is assessed with the modified factors as above, Rs.40,000/- is found payable. Rs.4,000/- awarded by the Tribunal when adjusted, the petitioner will get Rs.36,000/- as additional compensation, under the head loss of earning.

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It is pertinent to note that under the heads, damages to clothing, extra nourishment and bystander expenses, the Tribunal omitted to award any sum as compensation. The Tribunal is unjustified in doing so and this Court is inclined to award Rs.1,000/- towards damages to clothing and Rs.3,000/- each towards, extra nourishment and bystander expenses.

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M.A.C.A.No.1318 of 2012

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Towards pain and suffering, the Tribunal has awarded Rs.12,000/- against a claim raised by the petitioner for Rs.50,000/-. The fixation of compensation under the head pain and suffering appears to this Court disproportionate when compared to the injuries sustained by

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the petitioner and this Court is inclined to modify it to Rs.40,000/-, so that the petitioner will get Rs.28,000/- as additional compensation.

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Under the head loss of amenities and enjoyments in life, Rs.8,000/- was awarded by the Tribunal against the claim raised by the petitioner for Rs.50,000/-. The sum awarded being disproportionate, this Court is inclined to re-fix it as Rs.25,000/- and therefore, the petitioner will get Rs.17,000/- as additional compensation.

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The petitioner failed to prove that he suffered permanent disability due to the injuries sustained and therefore, this Court is declined to grant compensation under that head.

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When the compensation is reassessed in the above manner, the petitioner will get Rs.88,000/- (Rupees Eighty

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M.A.C.A.No.1318 of 2012

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eight Thousand only) as additional compensation. The said amount would carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation excluding 478 days being the period taken to file the appeal on hand. The 3^rd respondent being the insurer shall deposit the additional compensation now arrived at as well as the amount awarded by the Tribunal (if not paid) alongwith interest respectively fixed, within a period of two months from the date on which a certified copy of this judgment is received.

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M.A.C.A stands allowed accordingly.

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Sd/-

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MARY JOSEPH JUDGE

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NAB

A.P.Raju v. Gireesh E.N.

Case brief

What is this about?

What did the court decide?

A.P.Raju v. Gireesh E.N.

Case brief

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