Allowed

Ratheeshkumar v. Sojan Thomas

Kerala HC6 Apr 2022MACA/1599/2012

Case brief

AI extract

What is this about?

The High Court of Kerala, Ernakulam dismissed the insurers' challenge to an enhanced compensation award in a motor accident case and instead granted the appellant an additional Rs. 55,700/- along with interest, adjusting the disability percentage and loss of earning period.

What did the court decide?

Appellant allowed to realize enhanced compensation of Rs. 55,700/- plus interest at 6.5% per annum from the date of petition to realization; insurer to satisfy liability within two months.

Ratheeshkumar Vs Sojan Thomas — 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 M.R.ANITHA

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WEDNESDAY, THE 6^TH DAY OF APRIL 2022 / 16TH CHAITHRA, 1944

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MACA NO. 1599 OF 2012

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AGAINST THE ORDER/JUDGMENT IN OPMV 1720/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL

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KOTTAYAM

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APPELLANT/PETITIONER:

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RATHEESHKUMAR MEKKAMPURATHU HOUSE,KULATHOORPRAYAR KARA,VELLAVOOR VILLAGE. BY ADVS. SRI.K.A.HASHIM SRI.M.I.ISMAIL

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RESPONDENTS/ADDITIONAL RESPONDENTS NOS.4 TO 6:

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1 SOJAN THOMAS

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ILLIMMOOTIL,CHURAKUZHY BHAGOM,MADAPPALLY,CHANGANACHERRY.686 101

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2 SAJI JOSEPH AYATHUKUDIYIL,ARUVAPPARA.P.O,PERUMBAVOOR,ERNAKULAM.683 545

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3 THE NATIONAL INSURANCE CO.LTD PERUMBAVOOR.683 545

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4 ABHILASH.T.K THANNIKALI,KULATHOORPRAYAR,VELLAVOOR.680 601

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5 JOSEPH CHACKO THOTTATHIL,ANICKAD.P.O,MATTAPPALLY.680 684

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6 THE ORIENTAL INSURANCE CO.LTD KOTTAYAM.680 101 BY ADV SRI.P.JACOB MATHEW ADV.SRI. GEORGE CHERIAN (THIRUVALLA)

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OTHER PRESENT:

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SRI.LAL GEORGE,R3

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON

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06.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MACA No.1599/2012

JUDGMENT

Appellant is the claimant in O.P.(MV).1720/2006 on the file of Motor Accidents Claims Tribunal, Kottayam (in short, the Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) towards compensation for the injury sustained by the appellant/claimant (hereinafter be referred as the claimant).

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It is alleged that the accident occurred on 20.06.2006, while the claimant was travelling in a goods autorickshaw bearing Reg.No.KL 03/K 2788 due to hit with Tempo van bearing Reg.No.KL- 07/S 72 driven by the 1^st respondent. It is alleged that the accident happened due to the rash and negligent driving of the 1^st respondent. Second respondent is the registered owner of the tempo van and 3^rd respondent is the insurer. The driver, owner and insurer of the autorickshaw was subsequently impleaded as additional respondents 4 to 6. The claim is for a total amount of Rs.4,28,000/-, which was limited to Rs.3,50,000/-.

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MACA No.1599/2012

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Before the Tribunal, respondents 1 and 2 entered appearance but they did not contest the matter. Third respondent/insurer filed written statement admitting the policy coverage with respect to the offending vehicle. It is also contended that 1^st respondent, driver of the offending vehicle, was not having valid driving licence and badge and there is violation of policy conditions. Rashness and negligence alleged against the 1^st respondent is denied. It is contended that the accident happened due to the rash and negligent driving of additional respondent No.4, driver of the autorickshaw.

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Subsequently, respondents 4 and 5 entered appearance and filed written statement denying the rashness and negligence on the part of respondent No.4. 6^th respondent filed written statement denying the negligence on the part of the driver of the autorickshaw. It is also contended that autorickshaw was not insured with the 6^th respondent.

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The claim petition was tried along with O.P.(M.V.) No.1698/2006. PW1 examined. Exhibits A1 to A18 marked from the side of the claimant. Exhibit B1 marked from the side

MACA No.1599/2012

of the respondents.

Tribunal on evaluating the evidence as well as the materials produced, came to a conclusion that the accident happened due to the rash and negligent driving of the first respondent, driver of the tempo van. Second respondent was held vicariously liable and third respondent, insurer was liable to indemnify the second respondent insured. A total compensation of Rs.1,59,495/- was awarded.

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Dissatisfied with the quantum of compensation awarded by the Tribunal claimant approaches this Court for the various grounds stated in the memorandum of appeal.

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Third respondent appeared through Adv. Sri. Lal George. Adv.Sri. P. Jacob Mathew entered appearance on behalf of 6^th respondent. Service of notice as against the other respondents was dispensed with.

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Heard the learned counsel for the claimant as well

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as the learned counsel for the insurers. Lower Court records were called for and perused.

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MACA No.1599/2012

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According to the learned counsel for the claimant, the claimant was a driver and coolie labourer and claimed a monthly income of Rs.4,500/-. But the Tribunal taken the income notionally as Rs.4,000/-, which, according to him, is low. He would also contend that Medical Board issued a disability certificate assessing 10% permanent disability. But the Tribunal taken only 7% as the permanent disability. Hence he seeks for enhancement of compensation on all heads.

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The learned counsel for the 3^rd respondent on the other hand would contend that a just and reasonable compensation has already been awarded to the claimant and hence no enhancement is required in this appeal.

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Claimant produced Ext.A16, copy of the driving licence of the claimant. The claimant was aged 30 years. The accident occurred in the year 2006.

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In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236], the Hon'ble Apex Court reckoned the monthly income of a coolie

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MACA No.1599/2012

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(manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-.

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Since The accident in this case was in the year 2006 the amount of Rs.4,500/- claimed as his monthly income can very well be accepted. Hence monthly income of the claimant is taken as Rs.4,500/-, instead of Rs.4,000/- taken by the Tribunal.

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In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] the Apex Court has dealt with the general principles relating to compensation in injury cases. Damages have been classified under the heads pecuniary damages (special damages) and non-pecuniary damages (general damages) in cases of personal injury matters. In case of routine personal injury cases, compensation will be awarded towards expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as for damages for pain and suffering and trauma as a consequence of the

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MACA No.1599/2012

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injury. Only in serious cases of injury where there is medical evidence proving disability certificate corroborating the evidence of claimant compensation will be granted for loss of future earnings on account of permanent disability, future medical expense, loss of amenities and loss of expectation of life etc. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. It is also held that a person is not only to be compensated for the physical injury, but also for the loss which injured has suffered as a result of such injury.

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In personal injury cases, heads under which the compensation is awarded has been classified into two as pecuniary damages (Special damages) and non pecuniary damages (general damages).

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In paragraph No.5 of the above judgment, the heads

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MACA No.1599/2012

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coming under pecuniary damages and non pecuniary damages have been discussed. In personal injury cases, compensation would be awarded only under the heads ie, expenses relating treatment, hospitalization, medicine, transportation nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as damages for pain, suffering and trauma as a consequence of the injuries. In cases of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earning (and other gains) which the injured would have made had he not been injured, comprising : - Loss of future earnings on account of permanent disability, Future medical expenses, Loss of amenities (and/or loss of prospects of marriage) and Loss of expectation of life (shortening of normal longevity). The assessment of non pecuniary damages under the damages for pain, suffering and trauma, loss of amenities and loss of expectation of life involves determination of lump sum amounts with reference to circumstances such as age, nature

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MACA No.1599/2012

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of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant.

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The claimant in this case sustained lacerated injury chin, bone deep 4x2 cm, lacerated injury forehead vertical towards scalp, bone deep 4x2 cm, bone deep lacerated injury 10x2 cm mid scalp, comminuted fracture frontal bone, fracture nasal bone, fracture maxilla and fracture of base of skull.

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Ex.A11 wound certificate as well as Ext.A14 discharge summary issued from Pushpagiri Medical College Hospital, Thiruvalla would prove the above injuries. The Medical Board certified 10% permanent disability. Ext.A15 is the disability certificate issued by the Medical Board. The disability noted are: mild impairment of memory, anosmia – bilateral (loss of sensations of smell), mildly deforming scar (L) forehead, loss of (L) central incisor (upper).

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In view of the series of fractures sustained by him and the procedures of treatment undergone by him and especially because of the Medical Board certificate assessing

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MACA No.1599/2012

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10% permanent disability, the reduction of disability to 7% by the Tribunal is not seems to be reasonable. Moreover, the doctor who issued the certificate was also examined as PW1. During evidence the doctor gave evidence in corroboration with Ext.A15 disability certificate. During cross examination he asserted that he has conducted test to ascertain impairment of memory and anosmia. He would also depose that mild deformity scar will not cause disability. It will cause dis-figuration. He also answered to a question that is not correct to say that there is no functional disability to the patient, impairment of memory and complete loss of smell assessed based on a booklet issued by Government of India and disability was not assessed according to Mc Bride scale.

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So in view of the series of fractures sustained by the claimant as well as the period of treatment and the procedures undergone by him the 10% disability assessed by the Medical Board as proved through the examination of PW1 can be very well be accepted and hence permanent disability of the claimant is taken as 10%.

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MACA No.1599/2012

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According to the learned counsel, the accident and the resultant injuries prevented him from going for work especially being a driver and a coolie worker. The Tribunal awarded only five months loss of earning, which according to him is insufficient. So taking into account the facts and circumstances, loss of earnings for six months is seems to be reasonable. Accordingly, loss of earning for six months is awarded. That will come to Rs.27,000/- [4500x6]. Deducting the amount already awarded, balance would be Rs.7,000/[27,000-20,000]. Towards permanent disability, it has already been found that the permanent disability at 10% as assessed by the Medical Board can be taken. The claimant was aged 30 years at the time of accident. As per Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)] the suitable multiplier would be '17'. So towards permanent disability, claimant is entitled to get Rs.91,800/[4500x12x17x10/100]. Deducting the amount already awarded, balance would be Rs.34,680/ - [91,800-57,120].

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The learned counsel also seeks for enhancement of

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MACA No.1599/2012

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compensation on the head of pain and suffering as well as loss of amenities. Rs.20,000/- and Rs.15,000/- respectively have already been awarded on that heads. On the facts and circumstances, the compensation towards pain and suffering

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can be enhanced to Rs.25,000/-. Deducting the amount already awarded, balance would be Rs.5,000/ - [25,00020,000]. An amount of Rs.5,000/- more is awarded towards loss of amenities. Learned counsel also contends about loss of upper incisor which is borne out from the Ext.A11 wound certificate as well as Ext.A15 disability certificate. So an amount of Rs.4,000/ - is awarded on that account.

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In the result, the appellant/claimant is allowed to realise enhanced compensation of Rs.55,680/[7,000+34,680+5,000+5,000+4,000], which is rounded off to Rs.55,700/- (Rupees fifty five thousand seven hundred only), which will carry interest at the rate of 6.5 % per annum from

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the date of petition till realisation (excluding the period of 30 days delay caused in filing the appeal). The third respondent, insurer shall satisfy the additional compensation granted in

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MACA No.1599/2012 13

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this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment, after deducting the liability of the appellant/claimant towards balance Court Fee, if any.

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Appellant/claimant shall provide his Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs.

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Sd/-

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M.R.ANITHA

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shg

Ratheeshkumar v. Sojan Thomas

Case brief

What is this about?

What did the court decide?

Ratheeshkumar v. Sojan Thomas

Case brief

What is this about?

What did the court decide?

What the court decided

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