Allowed

Kumaran v. K.a.Radhakrishnan

Kerala HC16 Nov 2022MACA/1563/2013

Case brief

AI extract

What is this about?

The Kerala High Court allowed the appeal against the Motor Accidents Claims Tribunal's award. The Court found the Tribunal unjustified for not awarding compensation for loss of earning and modified awards for loss of earning capacity, bystander expenses, transportation, clothing damages, pain and suffering, and loss of amenities.

What did the court decide?

Additional compensation of Rs. 70,600 with interest granted by modifying the Tribunal's award on various heads.

Kumaran Vs K.a.Radhakrishnan — 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 16TH DAY OF NOVEMBER 2022 / 25TH KARTHIKA, 1944

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MACA NO. 1563 OF 2013

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AGAINST THE AWARD DATED 08.03.2013 IN OP(MV)NO. 1053/2000 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA

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PETITIONER/APPELLANT:

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KUMARAN,
S/O.KASI,
VAZHAKKAD HOUSE, PERUVAMBU POST,
PALAKKAD DISTRICT.

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BY ADV SRI.T.N.MANOJ

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RESPONDENTS/RESPONDENTS:

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1K.A.RADHAKRISHNAN,
KANAKKASSERY HOUSE, KUNNAPILLY,
MELOOR CHALAKUDY VIA,
THRISSUR DISTRICT, PIN-686502

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2 JOY, S/O.OUSEP,PARAKKATTIL HOUSE, CHATTIKULAM P.O., KAMALLAM,CHALAKUDY VIA, PIN-686502

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3 THE MANAGER, NEW INDIA ASSURANCE COMPANY LTD., THRISSUR. PIN-678001.

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R3 BY ADV.SRI.P.G.GANAPPAN, STANDING COUNSEL

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 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
16.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.No.1563 of 2013

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JUDGMENT

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Dated this the 16thday of November, 2022

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This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Irinjalakuda (for short 'the Tribunal') on 08.03.2013 in OP (MV) No.1053/2000.

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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 in the Original Petition.

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The appellant is the petitioner before the Tribunal. He met with a motor accident at 12 p.m. on 08.09.1999 while working as a cleaner in a Lorry bearing Registration number KL-8/K/657 near Aloor Kanal Palam. The accident was allegedly occurred due to the rash and negligent driving of the lorry by its driver, who was arrayed in the Original Petition seeking

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M.A.C.A.No.1563 of 2013

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compensation as the second respondent. Petitioner sustained serious injuries and had undergone treatment at various hospitals and expended huge amount on treatment. He had sustained crush injury on his right Axilla and upper arm and treated primarily at Trichur Heart hospital Ltd., Thrissur. Axillary artery and vein repair were done at the hospital. Compound comminuted fracture of upper end of right humerus and brachial plexus injury were found in the investigation held later. External fixator was applied on his right arm followed by skin grafting. The injury was a lacerated one severely crushed and contaminated. He was treated as inpatient from 08.09.1999 till 29.09.1999. At the time of discharge he was asked to continue medication and to review for repair of brachial plexus injury and for removal of external fixator. He was further admitted at Amala Hospital, Thrissur and

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M.A.C.A.No.1563 of 2013

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was treated as inpatient there for 36 days. Claiming a total sum of `3,50,000/- as compensation the Original Petition was moved. The owner, the driver and the insurer of the lorry were arrayed respectively as respondents 1 to 3 in the Original Petition seeking compensation.

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Originally the claim petition was awarded and

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the award was taken up in challenge in appeal before this Court. The appeal was allowed and the award was set aside and the Original Petition was remitted back to the Tribunal for re-consideration. After consideration of the Original Petition afresh, the present award was passed. After remand, the doctor who had treated the petitioner was examined as PW1 and a certificate assessing his disability issued by the above doctor was also marked in evidence as Ext.A9. Originally a certificate assessing disability was produced by the

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M.A.C.A.No.1563 of 2013

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petitioner and got marked in evidence as Ext.A8. The doctor who had issued Ext.A8 passed away at the relevant time when his further examination was scheduled after the remand. Ext.A9 was obtained and the doctor who issued it was examined as PW1. According to PW1 due to the serious injuries, he had suffered 35.95% whole body disability and 60% loss of earning capacity.

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Petitioner did not mount the box during

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evidence to depose about his disability on account of the injuries sustained and inability to attend his work as a cleaner. True that the doctor has certified 60% as his loss of earning capacity for his inability to pursue with the avocation he was doing prior to the motor accident. Wholebody disability of 35.95% certified in Ext.A9 was already considered by the Tribunal.

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It has been pointed out by the learned

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M.A.C.A.No.1563 of 2013

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counsel for the 3^rd respondent that evidence is not forthcoming to establish that the petitioner has become totally disabled to pursue with his avocation due to the injuries sustained and therefore was terminated from his job as cleaner of the Lorry. Therefore it is not convincing for this Court to arrive at a finding that the petitioner lost his job after the motor accident in question.

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The photographs of the petitioner were found

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produced. But the Appendix of the impugned judgment is silent with regard to that. Therefore evidence is totally lacking to establish the loss of earning capacity of the petitioner. The Tribunal had taken the wholebody disability certified in Ext.A9 as such while re-assessing the compensation. Therefore, this Court is not in a position to enter into a finding that the petitioner lost his job as a cleaner after the

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M.A.C.A.No.1563 of 2013

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motor accident. Therefore, the prayer of the petitioner to consider 60% as his loss of earning power is discarded, being devoid of merits.

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The Tribunal fixed the monthly income notionally as 2,000/-. The monthly income fixed being with reference to the year 1999, is maintained. Tribunal failed to award compensation for loss of earning. Petitioner had sustained serious injuries in the motor accident and availed in-patient treatment for 56 days. Therefore, the Tribunal is unjustified in not awarding compensation for loss of earning. This Court finds it appropriate to consider 8 months for calculating compensation for loss of earning and thus arrived at 16,000/- (2,000/- x 8). As compensation towards bystander expenses and extra nourishment, the Tribunal awarded only 2,000/- and `1,000/respectively. Those being inadequate, are modified to

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M.A.C.A.No.1563 of 2013

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5,600/- (56 x 100/-) and 1,500/- respectively. Thus, the petitioner will get 3,600/- and `500/respectively as additional compensation under those heads.

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As compensation towards transportation expenses the Tribunal awarded only 500/- against a claim raised for 2,000/-. It is noticed that the petitioner was treated at Trichur Heart Hospital, Thrissur and also at Amala Hospital, Thrissur. Therefore, 500/- stood awarded by the Tribunal is inadequate and is modified to 2,000/-, the amount claimed by the petitioner in the Original Petition itself. Therefore, the petitioner will get 1,500/- as additional compensation towards transportation expenses. As compensation towards damages to clothings, this Court awards 1,000/-. Compensation stood awarded by the Tribunal towards pain and suffering being

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M.A.C.A.No.1563 of 2013

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inadequate, is modified to 40,000/-. Thus, the petitioner will get 28,000/- as additional

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compensation. As compensation towards loss of amenities and enjoyments in life `20,000/- is also awarded.

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In the above re-assessment, the petitioner will get 70,600/-(16,000/- + 3,600/- + 500/- + 1,500/- + 1,000/- + 28,000/- + 20,000/-) (Rupees Seventy Thousand and Six Hundred only) as additional compensation which will also 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 26 days being the delay occurred in filing the appeal on hand. The 3^rd respondent shall pay the additional compensation with interest fixed as above and also the amount originally stood awarded by the Tribunal with interest fixed, (if not already paid) within a period of

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M.A.C.A.No.1563 of 2013

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two months from the date on which a certified copy of the judgment is received by it, in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019.

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MACA stands allowed accordingly.

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Sd/-

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MARY JOSEPH JUDGE

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MJL

Kumaran v. K.a.Radhakrishnan

Case brief

What is this about?

What did the court decide?

Kumaran v. K.a.Radhakrishnan

Case brief

What is this about?

What did the court decide?

What the court decided

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