Allowed

V.K.Rasheed (Expired) v. the Royal Sundaran Alliance Insurance Co.Ltd.

Kerala HC10 Nov 2022MACA/1421/2012

Case brief

AI extract

What is this about?

In this appeal against a Motor Accidents Claims Tribunal award, this Court enhanced the total compensation payable to the deceased petitioner's legal heirs. While the Medical Board's disability assessment was maintained, the monthly income was refixed higher, and loss of earning duration extended. The insurer was directed to deposit the additional sum with interest.

What did the court decide?

The insurance company ordered to deposit additional compensation of Rs.97,720/- with interest excluding the period of abatement and procedural delay.

V.K.Rasheed (Expired) Vs the Royal Sundaran Alliance… — 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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THURSDAY, THE 10TH DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944

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MACA NO. 1421 OF 2012

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AGAINST THE AWARD DATED 27.10.2011 IN O.P(M.V) NO.1923/2008 OF

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MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM

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APPELLANTS/PETITIONERS:

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*1V.K.RASHEED (EXPIRED,
VADAKKANOLIL, ANJALIPPA P.O.,
NOW RESIDING AT ALEKKAPARAMBIL, NEDUMKUNNAM P.O.,
KARUVACHAL, CHANGANACHERRY.
(ADDITIONAL APPELLANTS 2 TO 5 ARE IMPLEADED (LRS)
2BEENA RASHEED, AGED 48 YEARS, W/O. LATE V.K.RASHEED,
VADAKKANOLIL, ANJILIPPA, MANNARAKKAYAM P.O.,
KANJIRAPPALLY, KOTTAYAM, PIN- 686 506.
3SHAHANA RASHEED, AGED 27 YEARS, D/O. LATE V.K.RASHEED,
VADAKKANOLIL, ANJILIPPA, MANNARAKKAYAM.P.O,
KANJIRAPPALLY, KOTTAYAM, PIN 686 506.
4RAHANA RASHEED, 25 YEARS, D/O. LATE V.K.RASHEED,
VADAKKANOLIL, ANJILIPPA, MANNARAKKAYAM.P.O,
KANJIRAPPALLY, KOTTAYAM, PIN-686 506.
5SHIJINA RASHEED, AGED 22 YEARS, D/O.LATE V.K.RASHEED,
VADAKKANOLIL, ANJILIPPA, MANNARAKKAYAM P.O.,
KANJIRAPPALLY, KOTTAYAM, PIN- 686 506.

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*(LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE
IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 5, AS ABOVE, AS
PER ORDER DATED 25.10.2022 IN IA 1/2022)
 BY ADV SRI.P.S.PRADEEP

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RESPONDENT/RESPONDENT NO.3:

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THE ROYAL SUNDARAN ALLIANCE INSURANCE CO.LTD.
KOTTAYAM, PIN-686 101.
BY ADVS. SRI.MATHEWS JACOB (SR.)
 SRI.P.JACOB MATHEW

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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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M.A.C.A.No.1421 of 2012

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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 originated from an award passed by Motor Accidents Claims Tribunal, Kottayam (for short ‘the Tribunal’) on 27.10.2011 in O.P(M.V) No.1923/2008.

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The Original Petition was filed by the victim of a motor accident occurred at 10 am on 02.02.2008. While he was about to board an M80 scooter at Njallamattom situated in Njallamattom-Vizhickthodu road, a Maruti Car bearing Registration No.KL 5/T 9205 hit the Motorcycle and thereby he was thrown away and sustained serious injuries. He was transported to Taluk Head Quarters Hospital, Kanjirappally and was treated there as inpatient. Alleging that the motor accident was occurred due to the rash and negligent driving of the Maruti Car by its driver and claiming a sum of Rs.14,09,850/- as compensation, the Original Petition above was filed before the Tribunal. The driver, owner and the insurer of the Maruti Car were arrayed as respondent Nos.1, to 3 in the Original Petition.

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M.A.C.A.No.1421 of 2012

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Summons were served on respondents 1 and 2 but, they did not turn up to contest the Original Petition and therefore declared ex parte . The 3^rd respondent had filed written statement admitting coverage of the Maruti Car under the Certificate of Insurance issued by them at the relevant time of the motor accident. It was contended that the motor accident was not caused due to rash and negligent driving of the car by the 1^st respondent, that the accident was occurred solely due to the negligence of the claimant himself and that the compensation claimed is exorbitant. The age, occupation and monthly income of the petitioner were also disputed.

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Before the Tribunal, Exts.A1 to A8 and Ext.X1 were marked in evidence by the petitioner. Respondents did not adduce any evidence. On appreciation of the evidence, the Tribunal found negligence on the part of the driver of the Maruti Car and accordingly fixed liability on him, who was arrayed as the 1^st respondent. Thus, the registered owner of the vehicle arrayed in the Original Petition as the 2^nd respondent and the insurer as the 3^rd respondent were also made liable. Rs.1,30,115/- was the compensation arrived at

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M.A.C.A.No.1421 of 2012

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by the Tribunal. Aggrieved by the quantum stands awarded by the Tribunal, the petitioner has approached this Court in the appeal on hand.

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During the pendency of the appeal, the sole appellant died and therefore his wife and three children were brought on record as additional appellants 2 to 5.

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It is contended by Sri.P.S.Pradeep, the learned counsel for the appellants that the Medical Board had assessed 12% as his permanent disability on account of loss of sexual capacity following the injuries sustained in the motor accident. According to him, the assessment of disability by the Medical Board is incorrect and interference is warranted. The learned counsel has further contended that the assessment of compensation by the Tribunal under other heads viz., transportation expenses, extra nourishment, damages to clothing, expenses for bystander, pain and sufferings and loss of amenities also fall on the lower side. According to him the monthly income was fixed by the Tribunal as Rs.3,500/- for the purpose of assessment of compensation. According to him, the petitioner had claimed in

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M.A.C.A.No.1421 of 2012

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the Original Petition that he was a fish vendor by occupation and has Rs.10,000/- as monthly earning. He urged for a consideration of a sum higher than Rs.3,500/- as his monthly income and assessment of compensation on it’s basis.

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The contention of Sri.Mathews Jacob, the learned counsel on behalf of the 3^rd respondent was that though the petitioner claimed to be a fish vendor earning Rs.10,000/- as monthly income, he failed to adduce any evidence to establish those aspects. According to him, the disability being assessed by a Medical Board and the court being not a medical expert cannot re-fix a higher percentage than that was certified by a Medical Board constituted with experts on various medical fields and to modify the disability. It is further contended by the learned counsel that the Tribunal has awarded just and reasonable compensation under all heads and therefore interference with the impugned award is totally unwarranted.

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This Court finds from Exts.A5 and A6 on record, which are nothing but the Accident Register cum Wound Certificate and the discharge card issued from Taluk Head

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M.A.C.A.No.1421 of 2012

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Quarters Hospital, Kanjirappally that the petitioner had sustained tenderness on his lower abdomen and an abrasion on forehead. It is reported in Ext.A6 discharge card issued from the very same hospital following the investigation held there, that the petitioner had a crack fracture on his left pubic

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ramus and contusion with hematoma on left testis. He was treated there with antibiotics and other supportive measures and was discharged on 09.02.2008 with advise to continue medication further. Any other follow up treatment was not evidenced from the documentary evidence on record.

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Ext.X1 is a certificate issued by the Medical Board associated with Govt.Medical College Hospital, Kottayam where the permanent disability of the petitioner was certified as 12% on account of fracture sustained to his left pubic ramus and injury caused to his scrotum with contusion. Petitioner was unable to erect his penis following the injury sustained in the motor accident and therefore, he was certified as 12% permanently disabled.

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The monthly income of the petitioner was fixed by the Tribunal as Rs.3,500/- on a notional basis, since the

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M.A.C.A.No.1421 of 2012

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petitioner failed to adduce any evidence to establish his claims on occupation and monthly income. However, the notional fixation of monthly income as Rs.3,500/- appears to this Court disproportionate, when viewed in the background of the year of accident, cost of living and price index prevalent then. The accident being occurred in the year 2008, this Court finds Rs.6,500/- as a reasonable sum to be fixed as monthly income.

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The Tribunal had considered loss of earning only for three months. This Court is inclined to enhance the period to four months. When compensation for loss of earning is assessed on the basis of the modified monthly income of Rs.6,500/- for four months, Rs.26,000/- is arrived at. Rs.10,500/- was already awarded by the Tribunal and therefore the petitioner will get Rs.15,500/- as additional compensation under that head.

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As compensation towards extra nourishment and damages to clothing the Tribunal had awarded Rs.1,000/and Rs.500/- respectively. This Court is inclined to modify it to Rs.2,000/- and Rs.1,000/- respectively and thereby the

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M.A.C.A.No.1421 of 2012

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petitioner will get Rs.1,000/- and Rs.500/- as additional compensation under those heads. As compensation towards bystander expenses, the Tribunal has awarded Rs.1,400/-. Taking into account of the fracture caused to the pubic ramus and contusion on scrotum, this Court is inclined to refix the compensation as Rs.3,000/- and thus, the petitioner will get Rs.1,600/- as additional compensation. As compensation towards pain and suffering and loss of amenities and enjoyments in life also this Court finds it appropriate to grant Rs.5,000/- each as additional compensation.

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The argument of the learned counsel to consider a higher percentage as permanent disability is untenable for the reason that it stands assessed by a Medical Board consisting of subject experts in different medical branches. In view of the non-availability of the petitioner now, due to his death, a re-assessment of his physical disability is also impossible. Moreover, a court of law being not an expert in medical field cannot sit over the assessment of permanent disability by a Medical Board consisting of medical experts on

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M.A.C.A.No.1421 of 2012

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the field. In the above circumstances, this Court finds it justified in reassessing the compensation for disability with the modified monthly income and all other factors taken by the Tribunal maintained. When compensation for disability is reassessed with Rs.6,500/- as the monthly income refixed and other factors maintained, Rs.1,49,760/- [Rs.6,500/- x 12 x 12 x 16/100] is arrived at. Rs.80,640/-, the sum already awarded by the Tribunal, when deducted from the sum now arrived at, the additional appellants will get Rs.69,120/- as additional compensation.

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When reassessed in the above manner, a total sum of Rs.97,720/- (Rupees Ninety seven Thousand Seven Hundred and Twenty only) is found payable to the additional appellants 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 realisaiton. The 3^rd respondent being the insurer shall deposit the additional compensation with interest fixed on it as above and the amount stands originally awarded by the Tribunal as compensation with interest fixed on it (if not already paid)

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M.A.C.A.No.1421 of 2012

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within a period of two months from the date on which a certified copy of this judgment is received.

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The appeal on hand was filed delayed by 164 days. The appeal on hand was ordered as abated due to nonimpleadment of the legal representatives of the original appellant and the order of abatement got set aside after a gap of 2081 days. Therefore interest of justice demands the 3^rd respondent insurer to be exonerated from liability to pay interest for those days.

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M.A.C.A stands allowed accordingly and the 3^rd respondent shall deposit the compensation with interest excluding the period of delay [2081 days + 164 days], within a period of two months from the date on which a certified copy of this judgment is received.

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MARY JOSEPH JUDGE

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NAB

V.K.Rasheed (Expired) v. the Royal Sundaran Alliance Insurance Co.Ltd.

Case brief

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V.K.Rasheed (Expired) v. the Royal Sundaran Alliance Insurance Co.Ltd.

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