Allowed

Sijo Johny v. Pradeep

Kerala HC7 Dec 2022MACA/1611/2013

Case brief

AI extract

What is this about?

The High Court allowed an appeal against an award by the Motor Accident Claims Tribunal. It modified the compensation quantum by enhancing monthly income, loss of earning period, and disability percentage, rejecting untimely objections to late medical evidence. The appellate court awarded over 92,000 INR as additional compensation.

What did the court decide?

The appellant was granted Rs.92,046/- as additional compensation for loss of earnings, disability, medical expenses, and other heads, to be deposited by the third respondent with interest.

Sijo Johny Vs Pradeep — 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
WEDNESDAY, THE 7TH DAY OF DECEMBER 2022 / 16TH AGRAHAYANA,

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MACA NO. 1611 OF 2013

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AGAINST THE ORDER/JUDGMENT IN OPMV 753/2008 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA DATED 31.01.2013
APPELLANT/PETITIONER:

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SIJO JOHNY
S/O.JOHNY, RESIDING AT MATHALIKKUNNEL, MARIKA
KAVALA BHAGAM, THOTTAKKARA KARA, ARAKUZHA
VILLAGE, MUVATTUPUZHA TALUK.
BY ADVS.SMT.ANEY PAUL

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 SRI.PHILIP J.VETTICKATTU

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RESPONDENTS/RESPONDENTS:

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1PRADEEP
S/O.LUKA, MAKKIYIL HOUSE, NEAR PAVNADMA COLLEGE,
MURICKASSERY P.O., VATHIKUDY VILLAGE, IDUKKI
DISTRICT- 685 604.

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*2WILLS K. SEBASTIAN(DELETED)
KOLLAMPARAMBIL HOUSE, RAJAPURAM P.O.,
POOMAMKANDAM KARA, VATHIKUDY VILLAGE, THODUPUZHA
TALUK-685 585.

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(*R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK
OF THE APPELLANT AS PER ORDER DATED 20-11-17 IN
IA NO.4111/17)

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3THE ORIENTAL INSURANCE CO.LTD.
THODUPUZHA – 685 585.
R3 BY ADV SRI.TITUS MANI
R3 BY ADV. GEORGE CHERIYAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR HEARING ON 07.12.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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MACA No. 1611 of 2013

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JUDGMENT

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Dated this the 7^th day of December, 2022

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This appeal is directed against an award passed by Motor Accident Claims Tribunal, Thodupuzha (for short ‘the Tribunal’) on 31.01.2013 in OP(MV) No. 753 of 2008. 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 and 2 in accordance with their status in the above Original Petition.

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According to the petitioner, he met with a motor accident at 5.45 p.m. on 20.03.2006 near Madapparambil Resort when an autorickshaw bearing Registration No.KL.7N/3080, wherein he was a passenger, was hit by a Bus bearing Registration No.KL.6B/3491. He sustained serious injuries and was treated at Chazhikattu Hospital, Thodupuzha. The accident was allegedly occurred due to the rash and negligent driving of the bus by its driver. A sum of Rs.2,25,000/- was claimed as

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MACA No. 1611 of 2013

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compensation. The driver, owner and the insurer of the autorickshaw were arrayed as respondents 1 to 3 in the Original Petition. 1^st and 2^nd respondents did not turn up to contest the Original Petition and therefore declared ex parte.

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The 3^rd respondent had filed written statement admitting the issuance of a policy in respect of the offending vehicle and coverage of it under the policy issued. It was contended that the accident was not occurred due to the negligence of the driver of the bus but due to negligence of the driver of the autorickshaw in which the petitioner was travelling. The driver of the autorickshaw was not holding a valid badge authorising to drive the same at the relevant time of accident. Age, occupation and monthly income of the petitioner were also disputed. The compensation claimed is also disputed for its exorbitant nature.

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Joint trial was held in the claim petition on hand alongwith the claim petitions preferred by other injured. Evidence was also adduced in common. Evidence in the case on hand consists of Exts.A1 to A10. The 3^rd respondent had also marked Ext.B1 policy in evidence. The Tribunal found from the

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MACA No. 1611 of 2013

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evidence on record that the driver of the bus bearing registration No.KL.6B/3491 was responsible for the accident by his rash and negligent driving. The Tribunal has arrived at Rs.2,20,000/- as the compensation payable and directed the 3^rd respondent to deposit the same with interest at the rate of 7.5% per annum from 17.12.2008 till the date of realisation. Aggrieved by the quantum of compensation arrived at by the Tribunal, the petitioner is now before this Court in the appeal on hand.

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It is contended by Adv.Aney Paul, the learned counsel for the petitioner that the Tribunal has fixed the monthly income notionally as Rs.4,000/- and that is too low. According to her, the petitioner claimed to be a driver by profession having Rs.4,500/- as his monthly income. According to her, the accident being occurred in the year 2006, the Tribunal ought to have fixed Rs.4,500/- itself as the monthly income of the petitioner instead of Rs.4,000/-. The learned counsel has contended that the petitioner was unable to attend his job and earn income due to multiple fractures sustained by him in the motor accident and therefore, the Tribunal has gone wrong in limiting the period for

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MACA No. 1611 of 2013

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computing compensation for loss of earning to five months. The learned counsel has also contended that compensation awarded under various other heads being low, interference is warranted to enhance it. According to the learned counsel the treatment was continued even in 2014 and the medical bills relating to that are produced alongwith the appeal on hand. According to her, those are required to be marked in evidence and the sum expended must be awarded as compensation under the head future treatment expenses. The learned counsel has also pointed out that the petitioner got his permanent disability assessed by the medical board and marked the certificate issued by it in evidence as Ext.A10. 17% was assessed as the disability of the petitioner and the assessment was supported by valid reasons, but, the Tribunal had taken only 15% and is highly unjustified in assessing the compensation payable, on its basis. Thus, modification of the compensation stands awarded under various heads is sought.

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The learned counsel for the 3^rd respondent has contended

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that the compensation awarded under various heads being just

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MACA No. 1611 of 2013

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and reasonable, interference is uncalled for. According to him, the monthly income is fixed as Rs.4,000/- on a reasonable basis and it is not required to be enhanced. The learned counsel also vehementally opposed the marking of the medical bills for its belated production. The learned counsel has also contended that the Tribunal is justified in taking 15% disability. The learned counsel for the 3^rd respondent canvassed for maintaining the impugned award.

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It is noted from the medical documents on record that the petitioner had sustained fractures of right femur, right superior and interior pubic rami, left clavicle and depressed fracture of left zygomatic arch in the motor accident. CT scan of brain and face reveals subdural bleeding in posterior cranial fossa, fractures on left clavicle, left orbit and left maxillary sinus walls. Petitioner had underwent a surgery for nailing under spinal anesthesia on 25.03.2006. Skin grafting was also done under spinal anesthesia on 05.04.2006. Treatment was continued with antibiotics and analgesics and he was discharged on 08.04.2006. He was reviewed on 13.04.2006 and

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MACA No. 1611 of 2013

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17.04.2006. In the X-ray taken on 12.05.2006, union of fractures was in progression and the petitioner was advised toe touching walk with the support of walker. The X-ray of right femur, clavicle and pelvis repeated on 02.06.2006 showed union of fractures in further progress and he was advised 50% weight bearing with axillary crutches. The fractures found united in the X-ray taken on 10.07.2006 and full weight bearing with axillary crutches was advised. The certificate issued on 23.06.2014 reveals admission of the petitioner at Chazhikattu Hospital, Thodupuzha on 16.06.2014 with the implants in situ. Procedure was done there for screw removal and he was discharged on 20.06.2014. He was reviewed on 23.06.2014 for the purpose of cleaning and dressing.

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Viewed in the above backdrop, the Tribunal is unjustified in considering only five months as the period for assessment of compensation for loss of earning. This Court finds it reasonable to take eight months’ period for assessment of compensation for loss of earning. The monthly income is also refixed as Rs.4,500/on a notional basis. In the re-fixation of compensation with the

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MACA No. 1611 of 2013

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modified factors, the petitioner will get Rs.36,000/- as compensation. Rs.20,000/- stands awarded by the Tribunal when adjusted in the above sum, the petitioner will get Rs.16,000/-.

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Towards bystander expenses, the Tribunal has awarded Rs.4,000/- and it being inadequate, this Court is inclined to modify it to Rs.6,000/-, so that the petitioner will get Rs.2,000/as additional compensation. Tribunal has already awarded the ambulance charges stands established, as compensation for transportation expenses and therefore, interference is unwarranted. Rs.5,000/- stands awarded for Extra Nourishment being just and reasonable, this Court is hesitant to interfere. Under the head damages to clothing, the Tribunal has awarded Rs.250/- and this Court finds justification in enhancing it to Rs.1,000/- so that the petitioner will get Rs.750/- as additional compensation. Rs.25,000/- stands awarded as compensation under the head pain and suffering when viewed in the backdrop of the multiple fractures sustained by the petitioner appears to this Court, disproportionate and therefore, Rs.15,000/- more is awarded under that head. Under the head loss of amenities and

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MACA No. 1611 of 2013

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enjoyments in life, the sum stands awarded by the Tribunal being inadequate, this Court is inclined to award Rs.10,000/- more.

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The permanent disability of the petitioner was assessed by a medical board and Ext.A10 certificate was issued by them. The assessment is also supported by cogent reasons. But the Tribunal opted to take only 15%, without stating any reasons. Therefore, this Court is inclined to take 17% itself as the percentage of disability of the petitioner. When the monthly income stands modified as Rs.4,500/- and percentage of disability as 17%, re-assessment of compensation is inevitable and Rs.1,56,060/- is found payable. Rs.1,22,400/- being the sum stands awarded, the petitioner will get Rs.33,660/- as additional compensation under the said head.

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Additional medical bills now produced by the petitioner in the appeal on hand are found related to the continuous treatment undergone by the petitioner following the injuries sustained in the motor accident and justice demands it’s reception in evidence as Ext.A21 series. Therefore, Rs.14,636/-

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MACA No. 1611 of 2013

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is found payable as additional compensation towards future medical expenses incurred by the petitioner.

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In the manner of reassessment as above, the petitioner will get Rs.92,046/- (Rupees Ninetytwo thousand fourty six only) 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 3^rd respondent shall deposit the compensation now arrived at additionally within

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a period of two months from the date of receipt of a certified copy of this judgment. The 3^rd respondent shall also deposit the

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sum stands originally awarded (if not paid) within the time granted.

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M.A.C.A stands allowed accordingly.

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Sd/MARY JOSEPH,

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ttb

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MACA No. 1611 of 2013

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APPENDIX OF MACA 1611/2013

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PETITIONER’S ANNEXURES :
Annexure A1True copy OF BILL DATED 16-06-2014
Annexure A2True copy OF BILL DATED 16-06-2014
Annexure A3True copy OF BILL DATED 16-06-2014
Annexure A4True copy OF BILL DATED 17-06-2014
Annexure A5True copy OF BILL DATED 17-06-2014
Annexure A6True copy OF BILL DATED 17-06-2014
Annexure A7True copy OF BILL DATED 17-06-2014
Annexure A8True copy OF BILL DATED 18-06-2014
Annexure A9True copy OF BILL DATED 19-06-2014
Annexure A10True copy OF BILL DATED 20-06-2014
Annexure A11True copy OF BILL DATED 20-06-2014
Annexure A12True copy OF BILL DATED 23-06-2014
Annexure A13True copy OF BILL DATED 26-06-2014

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MACA No. 1611 of 2013

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Sijo Johny v. Pradeep

Case brief

What is this about?

What did the court decide?

Sijo Johny v. Pradeep

Case brief

What is this about?

What did the court decide?

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