Allowed

Chandran K S v. Martin and Others

Kerala HC10 Nov 2022MACA/1808/2013

Case brief

AI extract

What is this about?

The High Court set aside the tribunal's award in a motor accident claim. The court enhanced compensation for loss of earning, disability, pain and suffering, and expenses. It calculated a Net Additional Compensation of Rs.1,54,380 at 7.5% interest, directed the insurer to deposit this sum, and to recover it from the driver and vehicle owner.

What did the court decide?

Additional compensation of Rs.1,54,380 at 7.5% interest to be deposited by the insurer and recovered from the driver and owner within two months.

Chandran K S Vs Martin and Others — 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 10TH DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944

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MACA NO. 1808 OF 2013

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AGAINST THE AWARD DATED 28.02.2013 IN OP(MV)NO.704/2010 OF MOTOR

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ACCIDENTS CLAIMS TRIBUNAL, PALA

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APPELLANT/PETITIONER:

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CHANDRAN K. S,
S/O.SIVARANAN CHETTIAR, KALAPURACKAL HOUSE,ULLANADU (P.O),
BHARANANGANAM, KOTTAYAM DISTRICT.

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BY ADVS.SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
 SRI.K.B.ARUNKUMAR

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RESPONDENTS/RESPONDENTS/ADDL.RESPONDENTS 3,4

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1MARTIN
S/O.SCARIA, KAVIYIL HOUSE, ULLANADU (P.O)
BHARANANGANAM, KOTTAYAM DISTRICT. PIN - 686 651

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2 THE NATIONAL INSURANCE COMPANY LIMITED, REPRESENTED BY ITS MANAGER, CHERUPUSHPAM BUILDING, PALA, KOTTAYAM DISTRICT. PIN - 686 575

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3 JOJU TOM VALLANATTU HOUSE, ULLANADU (P.O),BHARANANGANAM, KOTTAYAM DISTRICT. PIN - 686 651

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4 MARTIN JOSEPH VALANATTU HOUSE, ULLANADU (P.O),BHARANANGANAM, KOTTAYAM DISTRICT. PIN - 686 651

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BY ADVS.SRI.GEORGEKUTTY MATHEW
 SRI.THOMAS T.VARGHESE
 SMT.E.S.SANDHYA
 SMT.ACHU SUBHA ABRAHAM
 SMT.K.R.MONISHA
 SMT.V.T.LITHA
 SMT.SHRUTHI SARA JACOB
R2 BY ADV. SRI.LAL GEORGE

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
10.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.No.1808 of 2013

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JUDGMENT

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Dated this the 10^th day of November, 2022

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This appeal is filed challenging an award passed by Motor

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Accidents Claims Tribunal, Pala (for short 'the Tribunal') on 28.02.2013 in OP (MV) No.704/2010.

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The appellant is the petitioner before the Tribunal. For the sake of clarity the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1, 2 and additional respondents 3 and 4 in accordance with their status in the above Original Petition.

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The petitioner met with a motor accident at about 8 a.m. on 04.03.2010. He was travelling in an autorickshaw bearing Registration Number KL-5/9819 from Pala to Erattupetta Bhagom and when reached near Vadakkekara on Erattupetta-Pala public road, it overturned due to the rash and negligent driving by it’s driver and thereby he sustained injuries. He was taken to IHM Hospital, Bharananganam and was shifted to Medical College Hospital, Kottayam where he was treated as inpatient till 07.03.2010. After getting discharged

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M.A.C.A.No.1808 of 2013

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from the said hospital, the treatment was continued at Government Hospital, Pala and Community Health Centre, Ullanad. The driver and insurer were arrayed as respondents 1 and 2 in the original petition. Lateron, the owner and the transferee of the vehicle from the owner were arrayed as additional R3 and R4 in the Original Petition. Alleging that the driver of the autorickshaw was responsible for the accident and claiming a sum of Rs.2,50,000/- as compensation the above Original Petition was filed before the Tribunal.

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1^st respondent has filed written statement contending that the accident was occurred due to the slippery nature of the road and not due to the rash and negligent driving by it’s driver. It was further contended that the vehicle was originally owned by one Mr.George Michael and the said person has transferred the ownership in favour of the additional 3^rd respondent, who in turn has sold the vehicle to the additional 4^th respondent on 30.11.2009. Admittedly the vehicle at the relevant time of accident was insured with the Additional 3^rd respondent. The age, occupation and the monthly income of the injured were disputed.

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M.A.C.A.No.1808 of 2013

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The 2^nd respondent in the written statement filed had

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admitted the insurance coverage of the autorickshaw at the relevant time of the accident but contended that the 1^st

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respondent was not holding a valid and effective driving licence at the relevant time of the accident. It was contended that the driver was chargesheeted for an offence under Section 3(1) of the Motor Vehicles Act, 1988 (for short ‘the M.V.Act’). The age, occupation and income of the petitioner are also disputed.

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Evidence was adduced by both sides before the Tribunal. The petitioner was examined as PW1 and Exts.A1 to A12 and Ext.X1 were marked. On the side of the 1^st respondent Exts.B1 and B2 were marked. The Tribunal on the basis of the evidence found the driver of the autorickshaw bearing Registration Number KL-5/9819 responsible for the accident due to his rash and negligent driving. The Tribunal had also arrived at Rs.1,33,483/- as the compensation payable to the petitioner. The Tribunal also found force in the contention of the 2^nd respondent that the driver of the autorickshaw who was the 1^st respondent in the original petition was not holding a

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M.A.C.A.No.1808 of 2013

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valid driving licence at the relevant time of the accident. Accordingly, the 2^nd respondent/insurer was directed to deposit the amount arrived at as compensation in favour of the petitioner and to recover the same from respondents 1 and additional respondent No.3 who were the driver and registered owner of the vehicle at the relevant time of the accident.

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The main contention of the learned counsel for the petitioner is that monthly income fixed is too low. According to him the petitioner claimed to be a mason earning a sum of Rs.8,000/- monthly from the said job. According to him though the accident was occurred in the year 2010, the Tribunal fixed the monthly income as Rs.4,000/- without adverting to the price index and cost of living prevalent then and therefore is unjustified. He has also canvassed for fixing a monthly sum proportionate to the one fixed by the Apex Court in Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co.Ltd. [(2011) 13 SCC 236] . According to him a certificate of disability was obtained by the petitioner from the Medical Board and marked in evidence as Ext.X1 where the

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M.A.C.A.No.1808 of 2013

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permanent disability was certified as 19.3%. But the Tribunal failed to take 19.3% but only took 13%, and the compensation for disability was assessed on it’s basis. According to him the Tribunal went wrong in taking a reduced percentage of disability than that was assessed by the Medical Board and the said fixation needs interference. The attention of this Court was also invited to the trip sheets produced and marked in evidence as Ext.A11 series, to contend that the compensation for transportation expenses was granted in total disregard of those. According to him the Tribunal has awarded only minimal amounts as compensation under various heads and this Court’s interference and modification is very much needed to make those just and reasonable.

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The learned counsel for the 2^nd respondent has contended on the contrary that just and reasonable sums have been awarded as compensation by the Tribunal under various heads. According to him the disability assessed by the Medical Board as per Ext.X1 as such was not considered by the Tribunal for valid reasons. According to him cogent reasons have not

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M.A.C.A.No.1808 of 2013

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been stated by the Medical Board in Ext.X1 certificate while arriving at 19.3% as his permanent disability. It is contended that the Tribunal is perfectly justified in taking a lower percentage of disabilty for computation of compensation payable under that head. The monthly income was fixed by the Tribunal as Rs.4,000/- notionally for want of any cogent and reliable materials to establish the job and monthly income of the petitioner. It is pertinent to note that the petitioner was examined as PW1 and he deposed categorically about his job and income. But failed to produce any materials indicative of drawal of a higher sum as monthly salary to corroborate his version as PW1 regarding the monthly income and therefore the Tribunal was constrained to fix Rs.4,000/- notionally and to calculate the compenstion on its basis. This Court finds it appropriate to take Rs.7,500/- being a sum corresponding to the fixation in Ramachandrappa supra. Petitioner had sustained fracture of both bones of left leg and various other injuries in the motor accident. He was treated by CMR and POP slab. He was treated as inpatient for 10 days in various

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M.A.C.A.No.1808 of 2013

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hospitals. No materials are produced by him to show any follow up treatment as outpatient. In view of the injuries sustained by the petitioner in the motor accident, this Court finds that 6 months’ period if taken would be adequate to grant a just and reasonable compensation for loss of earning. Rs.7,500/- if considered for six months, the petitioner will get Rs.45,000/as compensation under the head loss of earning. Rs.16,000/being the sum stands awarded by the impugned award, the petitioner will get Rs.29,000/- as additional compensation. Under the head transportation expenses and bystander expenses the Tribunal has awarded Rs.2,000/- each, which this Court is inclined to modify respectively to Rs.5,000/- and Rs.4,000/-. Therefore, the petitioner will get Rs.3,000/- and Rs.2,000/- respectively as additional compensation under those heads. Under the head extra nourishment the Tribunal has awarded only Rs.500/- and this Court is inclined to modify it to Rs.3,000/- and therefore the petitioner will get Rs.2,500/- as additional compensation. Under the head pain and suffering and loss of amenities and enjoyments in life the Tribunal has

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M.A.C.A.No.1808 of 2013

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awarded Rs.20,000/- and Rs.10,000/- respectively. Being low and disproportionate to the injuries sustained in the motor accident, this Court is inclined to enhance the amount to Rs.25,000/- and Rs.15,000/- respectively, so that the petitioner will get Rs.5,000/- each under those heads as additional compensation. Eventhough reassessment of compensation on the basis of a higher percentage of disability is sought this Court finds from Ext.X1 that the assessment was solely based on restriction of rotation of movements of left knee. During the course of examination the petitioner has stated that his left leg has shortening following the injuries sustained in the motor accident. But, while examining the petitioner, that aspect was not noticed by the Medical Board and reported in Ext.X1. In that context, the Tribunal was constrained to take the disability at a lesser percentage. In consideration of the fact that the petitioner had sustained fracture of both bones of left leg, this Court finds it reasonable to consider 15% as his permanent disability and to assess the compensation payable on it’s basis. From the extract of entries of the Admission Register marked in

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M.A.C.A.No.1808 of 2013

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evidence as Ext.A12, the date of birth of the victim is revealed as 22.01.1968. Therefore, the victim has reached 42 yeas at the relevant time of accident and if so, the multiplier relevant is ‘14’. In the calculation afresh with the monthly income modified as Rs.7,500/-, 15% as the disability and 14 as the multiplier, a sum of Rs.1,89,900/- (Rs.7,500x12x14x15/100) is arrived at. The sum stands awarded by the Tribunal being Rs.81,120/- the petitioner will get Rs.1,07,880/- as additional compensation.

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In the reassessment as above a sum of Rs.1,54,380/- is payable as additional compensation. The said amount would carry interest at the rate of 7.5% per annum from date of filing of the original petition seeking compensation till the date of realisation. The 2^nd respondent being the insurer shall deposit the amount arrived at as additional compnesation now with interest fixed as above and the sum originally awarded by the Tribunal with interest at the rate specified in the original award (if not already paid) within a period of two months from the date on which a certifed copy of this judgment is received. The 2^rd respondent was permitted by the

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M.A.C.A.No.1808 of 2013

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impugned award to get recovery of the compensation amount after depositing the same in favour of the petitioner, from the 1^st and additional 3^rd respondent. Since appeal was not filed

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by the additional 3^rd respondent against the said finding, it is maintained. In the said context, the 2^rd respondent shall also get recovery of the amount now arrived at as additional compensation together with interest fixed, from the 1^st and additional 3^rd respondents.

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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

Chandran K S v. Martin and Others

Case brief

What is this about?

What did the court decide?

Chandran K S v. Martin and Others

Case brief

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What did the court decide?

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