Allowed

Kausalya v. Mohanan Nair

Kerala HC3 Nov 2022MACA/1617/2011

Case brief

AI extract

What is this about?

The High Court allowed the motor accident claims appeal filed by the victim. It enhanced the monthly income used for compensation calculation and the disability percentage, recalculating various heads like loss of earnings and pain and suffering. The court enhanced the total marketable compensation to be paid by insurers and restored the direction to recover from the vehicle owner.

What did the court decide?

The appeal is allowed. The insurer is directed to pay an additional Rs.1,75,830 with interest from the date of filing, plus maintain the awarded interest on the original sum. Total compensation is enh

Kausalya Vs Mohanan Nair — 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 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944

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MACA NO. 1617 OF 2011

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AGAINST THE AWARD DATED 03.10.2010 IN O.P(MV) NO.2066/2003 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM

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APPELLANT/PETITIONER :-

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KAUSALYA, D/O PADMAKSHI
AGED 47 YEARS, RESIDING AT MELEKATTAKALIL,
VAZHAYILA, MANIKANTESWARAM.P.O.,
THIRUVANANTHAPURAM.

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BY ADVS.
SRI.R.T.PRADEEP
SRI.SREEKANTH S.NAIR

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RESPONDENTS/RESPONDENTS :-

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1 MOHANAN NAIR

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T.C.26.999, RAJAJI NAGAR, THIRUVANANTHAPURAM.695001

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2 THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO.LTD., C.W.C.BUILDING,, C.M.S.COMPOUND, PALAYAM, THIRUVANANTHAPURAM.695001

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3 BINU.P. 5/723, KUZHIVILA VEEDU, KEEZHAIKONAM,, NELLANADU.P.O., THIRUVANANTHAPURAM.695006

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4 THE MANAGER ORIENTAL INSURANCE CO.LTD. PADMASREE, NEAR BUS STAND JUNCTION,NEYYATTINKARA.695121

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BY ADVS.
SRI.P.K.MANOJKUMAR
S.K.ADHITHYAN
SRI.VPK.PANICKER

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 03.11.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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MACA No.1617 of 2011

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JUDGMENT Dated this the 03^rd day of November, 2022

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This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Thiruvananthapuram (for short ‘the Tribunal’) on 03.10.2010 in O.P.(MV) No.2066 of 2003. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 4 in accordance with their status in the Original Petition.

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Claiming a sum of Rs.4,00,000/- as compensation, the Original Petition above was moved by the petitioner before the Tribunal. The Tribunal has awarded a sum of Rs.1,84,675/- as compensation and directed the second respondent, insurer to pay it with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The Tribunal has also permitted the second respondent to recover the amount of compensation, after depositing the same in favour of the petitioner from the owner of the offending vehicle arrayed in the Original

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MACA No.1617 of 2011

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Petition as the 1^st respondent. Aggrieved by the quantum stands awarded by the Tribunal as compensation, the appeal on hand is filed.

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The main challenge raised by Sri.R.T.Pradeep, the learned counsel was on meagerness in the quantum fixed as the monthly income of the petitioner. According to him, the petitioner claimed to be a tailor by profession. The Tribunal fixed Rs.2,500/as her monthly income and the compensation has been arrived at on it’s basis. According to the learned counsel, though a certificate where the permanent disability of the petitioner was certified as 32%, is marked in evidence as Ext.A8, the Tribunal has taken only 25% while assessing compensation for disability. According to him the doctor was examined as PW1 and he deposed on the reasons for assessing the permanent disability as 32% correctly, but the Tribunal took only 25% after discarding the evidence and therefore, is unjustified.

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According to the learned counsel, the petitioner was

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treated as inpatient for 54 days. But, the Tribunal failed to award a

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MACA No.1617 of 2011

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sum proportionate to that for bystander expenses and extra nourishment. According to him, similar is the case of compensation awarded towards transportation expenses. The learned counsel has also pointed out that the petitioner had sustained grievous injuries in the motor accident and had undergone several surgical procedures as part of treatment. But the Tribunal has awarded compensation totally discarding the evidence available in that regard. According to him, compensation stands awarded towards pain and suffering and loss of amenities and enjoyments in life also fall on the lower side due to lack of proper appreciation of evidence on record.

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The learned counsel for the second respondent has contended on the contrary that the permanent disability of the petitioner was certified by an individual doctor, who had never treated the petitioner and not by the Medical Board. According to her, the doctor as PW1, has deposed to the effect that the assessment of permanent disability was certified by considering the petitioner as a housemaid and not as a manual labourer and therefore, the Tribunal was reluctant to consider 32% as the

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MACA No.1617 of 2011

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permanent disability. The learned counsel urged to maintain Rs.2,500/- as the monthly income, since evidence is not forthcoming to establish that the income of the petitioner is more than that.

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The accident in the case on hand being occurred in the year 2003, this Court finds it expedient in the interest of justice to

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fix Rs.4,000/- as the monthly income of the petitioner for the purpose of calculation of compensation.

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It is revealed from the treatment records marked in evidence as Ext.A1 to A7 that the petitioner was taken to Medical College Hospital, Thiruvananthapuram on 27.11.2003 and was treated there as inpatient till 14.01.2004. Therefore, the petitioner had inpatient treatment for 54 days. It is established from Exts.A2 to A6 that the petitioner had follow ups in the same hospital as outpatient for a number of occasions. The injuries were Type II compound fracture of both bones of right leg and subtrochanteric fracture of right femur. The petitioner was treated by Open Reduction and Internal Fixation with K-nail and bone grafting.

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MACA No.1617 of 2011

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The permanent disability of the petitioner was certified

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in Ext.A8 as 32%. The doctor who issued it was examined as PW1. In Ext.A8, fracture of femur was reported as not united and fracture of tibia, malunited. POP cast was reported applied till October. It was also noted in Ext.A8 that the implants were in situ.

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Compensation for loss of earnings needs re-calculation in view of the re-fixation of monthly income and period of loss of income. In the re-assessment, Rs.48,000/- (Rs.4,000 x 12) is arrived at. Rs.30,000/- was already awarded by the Tribunal and when that amount is deducted from the sum arrived at now, the petitioner will get Rs.18,000/- as additional compensation. As compensation towards transportation, Rs.2,000/- stands awarded by the Tribunal being a meagre amount, this Court awards Rs.8,000/- and therefore, the petitioner will get Rs.6,000/- as additional compensation.

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As compensation towards, extra nourishment, Rs.2,000/- stands awarded being inadequate, this Court awards Rs.8,100/- (54 x Rs.150/-). Rs.2,000/- awarded by the Tribunal when deducted from the sum arrived at, the petitioner will get

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MACA No.1617 of 2011

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Rs.6,100/- as additional compensation. The Tribunal has awarded Rs.5,300/- as compensation towards bystander expenses and that being low, this Court awards Rs.8,100/- (Rs.150/- x 54). Rs.5,300/already awarded by the Tribunal when adjusted in the sum now arrived at, the petitioner will get Rs.2,800/- as additional compensation.

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Towards damages to clothing Rs.250/- was awarded and this Court awards Rs.750/- more. As compensation towards pain and suffering the Tribunal has awarded only Rs.15,000/- and it being inadequate, this Court enhances it to Rs.50,000/-. Therefore, the petitioner will get Rs.35,000/- as additional compensation. As compensation towards loss of amenities, Rs.15,000/- stands awarded being low, this Court enhances it to Rs.20,000/- and thereby the petitioner will get Rs.5,000/- as additional compensation.

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The Tribunal had taken only 25% as the disability of the petitioner for the purpose of assessment of compensation. In Ext.A8 the permanent disability of the petitioner was certified by a

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MACA No.1617 of 2011

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Medical Practitioner as 32%. The doctor who had issued the certificate was also examined before the Tribunal as PW1. According to him, the basis for preparation of Ext.A8 was MCBride Scale. According to him, fracture of femur of the petitioner was non united and the fracture of tibia was malunited. The petitioner has a shortening of one inch for her right leg. It was deposed by PW1 on the basis of the X-ray taken that the implants are in situ. It is revealed from the medical documents on record that the wound site was infected and the petitioner had undergone treatment for that also. In the above circumstances, the assessment of 32% disability appears reasonable. The reasons stated in Ext.A8 find corroboration in the medical records pertaining to the treatment undergone by the petitioner and marked in evidence.

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In the above circumstances, the Tribunal is highly unjustified in opting to consider a reduced percentage of disability for calculation of compensation. In the re-assessment with Rs.4,000/- as the monthly income, 13 as the multiplier and 32% as the permanent disability Rs.1,99,680/- (Rs.4,000/- x 12 x 13 x

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MACA No.1617 of 2011

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32/100) is arrived at. Rs.97,500/- stands awarded by the Tribunal when deducted, the petitioner will get Rs.1,02,180/- as additional compensation for disability.

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In the reassessment of compensation as above, the petitioner will get Rs.1,75,830/- as additional compensation in total. 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 deposit of the same.

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The learned counsel for the second respondent has put to the notice of this Court that the appeal in question was filed with a delay of 239 days and seeks for exoneration from liability to pay interest for that period. The demand being reasonable is allowed.

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It was established before the Tribunal that the driver of the offending vehicle was not holding valid driving licence and therefore, the 2^nd respondent was permitted to recover the compensation after payment of the same in favour of the petitioner. The same is only to be maintained. The second respondent, the insurer shall pay Rs.1,75,830/- (One lakh seventy five thousand

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MACA No.1617 of 2011

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eight hundred and thirty only) with interest at the rate of 7.5% per annum and also the amount stands originally awarded by the Tribunal with interest fixed for it (if not already paid) from the date of filing of the Original Petition till the date of realisation within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019 and thereafter, recover the same from the first respondent.

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M.A.C.A. stands allowed accordingly.

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Sd/-

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MARY JOSEPH SMA JUDGE

Kausalya v. Mohanan Nair

Case brief

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Kausalya v. Mohanan Nair

Case brief

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