Allowed

Mohanan v. Pradeep.v.S

Kerala HC4 Nov 2022MACA/1757/2012

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the appeal against the Motor Accident Claims Tribunal order. The Court re-fixed the monthly income and period of loss of earning, accepted a disability certificate without examining the doctor, and enhanced compensation under various heads including medical and for loss of amenities.

What did the court decide?

Award of Rs.1,45,571/- as additional compensation with interest at 7.5% per annum; modification of previous award components.

Mohanan Vs Pradeep.v.S — 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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FRIDAY, THE 4TH DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944

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MACA NO. 1757 OF 2012

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AGAINST THE AWARD DATED 04.06.2012 O.P(M.V) NO.1270/2007 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM

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APPELLANT/PETITIONER:

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MOHANAN.T.A., S/O.AYYAPPAN,
THAIVALAPPIL HOUSE, MULAMKUNNATHUKAVU P.O.,
CHIRAKKUNNU, MG KAVU VILLAGE, THRISSUR TALUK,
THRISSUR DISTRICT – 680 581.

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BY ADVS.SRI.SHEJI P.ABRAHAM
 SRI.O.K.MURALEEDHARAN

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RESPONDENTS/RESPONDENTS:

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1PRADEEP.V.S,
MUDATHOLI HOUSE, M G KAVU P.O., THRISSUR TALUK,
THRISSUR DISTRICT – 680 001
(RIDER AND OWNER OF MOTOR CYCLE NO.KL 08 AG 1380).

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2UNITED INDIA INSURANCE COMPANY LTD.,
PARK HOUSE BUILDING, 2ND FLOOR, ROUND NORTH,
THRISSUR - 680001,
POLICY NO.100600/31/06/01/00015849
VALID FROM 10/10/2006 TO 9/10/2007.
BY ADVS.SRI.C.JOSEPH JOHNY
R2 BY SRI.JOHN JOSEPH VETTIKAD

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARS
ON 04.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A No.1757 of 2012

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JUDGMENT

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Dated this the 4^th day of November, 2022

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This appeal is filed challenging an Award passed by Motor Accident Claims Tribunal, Ottapalam (for short ‘the Tribunal’) on 04.06.2012 in O.P(MV) No.1270/2007.

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Petitioner before the Tribunal is the appellant in the appeal on hand. He met with a motor accident at about 18.30 hours on 17.06.2007 when a motorcycle bearing Registration No.KL 8HL 6646 ridden by its rider in a rash and negligent manner dashed the motorcycle bearing Registration No.KL8AG 1380 in which he was travelling as pillion rider. He sustained serious injuries and was rushed to Medical College Hospital, Thrissur for treatment. He was treated there as inpatient for 38 days. Alleging that the motor accident was occurred due to the rash and negligent riding of the motorcycle bearing Registration No.KL8AG 1380 by its rider and raising a claim for a sum of Rs.2,00,000/- as

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M.A.C.A No.1757 of 2012

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compensation the original petition above was filed before the Tribunal.

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The owner cum rider of the motorcycle bearing Registration Number KL8AG 1380 and its insurer were arrayed as 1^st and 2^nd respondents in the original petition seeking compensation. The rider and insurer of the motorcycle bearing Registration No.KL8HL 6646 were also arrayed as supplemental respondents 3 and 4 in the Original Petition. 1^st respondent remained ex parte.

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2^nd respondent had filed written statement admitting that the motorcycle bearing Registration Number

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KL8AG 1380 was validly insured with them. It was contended that the 1^st respondent who was riding the motorcycle was not holding a valid driving licence at the relevant time of accident. The age, occupation, monthly income, the injuries sustained and the quantum of compensation claimed are also disputed. It was also contended that the policy issued in respect of the vehicle bearing Registration Number KL8AG 1380 will not cover the risk of a pillion rider travelling in the motorcycle.

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M.A.C.A No.1757 of 2012

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Supplemental 3^rd respondent has filed written statement denying all the averments of the petitioner in the original petition including negligence attributed to him. According to him the motor accident was occurred due to the rash and negligent riding of the motorcycle by it’s rider, wherein the petitioner was travelling as a pillion rider. The insurance coverage for the vehicle at the relevant time of the motor accident is admitted.

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Supplemental 4^th respondent also filed written statement denying all the averments made by the petitioner in the original petition. According to him the motor accident was occurred due to the rash and negligent riding of the motorcycle bearing Registration No.KL8 AG 1380 by its rider. The age, income and occupation of the injured and also the amount claimed as compensation are disputed.

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During trial, the petitioner tendered oral evidence as PW1. Exts.A1 to A10 were also marked. Exts.B1 and B2 were marked in evidence by the respondent.

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On the basis of the evidence the Tribunal found negligence on the part of the rider of the motorcycle bearing

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M.A.C.A No.1757 of 2012

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Registration No.KL8AG 1380. The Tribunal also found that the petitioner is entitled to get compensation for the injuries sustained by him in the motor accident in question. Rs.79,350/- was also arrived at as the total compensation payable. Liability was fixed on the rider cum owner (R1) and the insurer of the motorcycle (R2) jointly and severally. The 2^nd respondent insurer was directed to deposit the above sum with interest at the rate of 8% per annum from the date of filing of the original petition till the date of realisation. Being aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner has approached this Court in the appeal on hand.

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According to Sri.Sheji P. Abraham, the learned counsel for the appellant, as per the claim of the petitioner in the Original Petition, he was a Coolie worker and the Tribunal fixed his monthly income as Rs.3,000/- on a notional basis. According to him, the motor accident being occurred in the year 2007, the Tribunal is not justified in fixing such a lower sum as monthly income. According to him, the Tribunal also failed to consider a reasonable period

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M.A.C.A No.1757 of 2012

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for assessment of compensation for loss of earning. According to him the Tribunal overlooked the grievous nature of injuries evidenced as sustained by the petitioner and the prolonged treatment while fixing the period. He thus canvassed for a re-fixation of the monthly income and

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the period for which the petitioner was prevented from attending his job. It was also pointed out that compensation stands awarded towards pain and sufferings and loss of amenities and enjoyments in life are also meagre and inadequate. The learned counsel urged that just and reasonable compensation was not arrived at and granted by the Tribunal. Thus re-consideration of the quantum payable as compensation was sought. According to him, a certificate assessing the permanent disability of the petitioner was produced by him and marked in evidence as Ext.A4 but, the Tribunal discarded it and declined to grant any sum as compensation towards disability. According to him, the Tribunal discarded Ext.A4 for non-examination of the doctor who had examined the petitioner and issued it.

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M.A.C.A No.1757 of 2012

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The learned counsel for the 3^rd respondent contended on the contrary that the sum stands awarded as compensation being just and reasonable, interference is totally unwarranted. According to him in a context where Ext.A4 was not put to proof, the Tribunal cannot be found fault with in not accepting it. It was contended by the learned counsel that the petitioner could have approached a medical board to get his disability assessed.

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This Court finds that the monthly income for the purpose of computation of compensation was fixed by the Tribunal as Rs.3,000/- on a notional basis. Petitioner was a Coolie worker and the motor accident in question was occurred in the year 2007. Therefore, this Court finds it appropriate to re-fix the monthly income as Rs.6,000/-. The Tribunal has recorded in the impugned award that the petitioner was unable to attend the job on account of the injuries sustained, for a period of six months. This Court is inclined to refix the period for which the petitioner was unable to attend his job as eight months on the basis of the grievous injuries sustained by him. In the re-assessment of

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M.A.C.A No.1757 of 2012

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compensation as above, Rs.48,000/- (Rs.6,000/- x 8) is arrived at. Rs.12,000/- stands awarded by the Tribunal is liable to be deducted and thus, Rs.36,000/- is arrived at as additional compensation. The sum stands awarded as compensation towards bystander expenses being reasonable, this Court finds no reason to interfere with. The Tribunal has awarded Rs.3,800/- as compensation towards extra nourishment and it being inadequate, this Court modifies it to Rs.7,600/-. Therefore, the petitioner will get Rs.3,800/- as additional compensation. As compensation towards transportation expenses, Rs.3,000/- stands awarded. It is noticed from the documentary evidence on record that the petitioner was treated as inpatient in the hospital for 38 days in three different spells of hospitalization. He had also underwent three surgical procedures. When viewed in that backdrop, this Court is inclined to enhance it to Rs.6,000/- and thus the petitioner will get Rs.3,000/- as additional compensation. As compensation towards damages to clothing Rs.500/- alone was awarded by the Tribunal, and therefore, Rs.500/- more

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M.A.C.A No.1757 of 2012

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is granted. As compensation towards pain and sufferings and loss of amenities and enjoyments in life, Rs.15,000/and Rs.7,500/- respectively stand awarded by the Tribunal being too low, this Court is inclined to enhance it to Rs.40,000/- and Rs.20,000/- respectively. Thus, the petitioner will get Rs.25,000/- and Rs.12,500/- as additional compensation under the respective heads.

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Ext.A4 is a certificate issued by an individual medical practitioner where 6.92% was certified as the permanent disability of the petitioner. The petitioner failed to examine the doctor who issued Ext.A4. In Ext.A4 shortening of leg was stated as one among the reasons for fixing 6.92% as the permanent disability of the petitioner. Injuries sustained by the petitioner include Grade III compound fracture of both bones of leg. Several surgical procedures were undergone as corrective measures. He was also subjected to bone grafting. Shortening of leg is possible in such a circumstance. Evenif the doctor who had issued Ext.A4 was not examined, in the factual context on hand, there is every likelihood for the petitioner to be disabled to a

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M.A.C.A No.1757 of 2012

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certain extent. The petitioner did not mount the box to depose about the disabilities resulted to him due to the injuries sustained. When examined as PW1, he had stated about his inability to walk and do any work on account of the injuries sustained in the motor accident. The percentage of the disability stands established by an Orthopedic Surgeon in Ext.A4 being not exorbitant, this Court finds it reasonable to accept it and to fix the compensation payable on it’s basis. When compensation for disability is reassessed, Rs.64,771/- (Rs.6,000/- x 12 x 13 x 6.92/100) is arrived at.

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Thus, Rs.1,45,571/- (Rupees One Lakh Forty five Thousand Five Hundred and Seventy one only) is awarded as the total additional compensation. The said sum 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 2^nd respondent shall disburse the aforesaid sum with interest fixed as above and also the original sum stands awarded by the Tribunal with interest fixed on it (if not already paid) within a period of two months from the date on

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M.A.C.A No.1757 of 2012

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which a certified copy of this judgment is received in accordance with Circular No.03/2019 dated 06.09.2019

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issued by this Court.

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MACA stands allowed accordingly.

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MARY JOSEPH JUDGE

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MJL

Mohanan v. Pradeep.v.S

Case brief

What is this about?

What did the court decide?

Mohanan v. Pradeep.v.S

Case brief

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What did the court decide?

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