Allowed

Joby Andrews v. Dr.Mathew Abraham

Kerala HC3 Jun 2022MACA/2037/2018

Case brief

AI extract

What is this about?

The High Court in a Motor Accident Claim Appeal allowed the first appeal against a Tribunal award. The Court set aside the Tribunal's reduced notional income assessment and enhanced compensation under heads ofpain and suffering, loss of amenities, and loss ofearning, granting an additional Rs.2.75 lakhs with interest to the injured appellant.

What did the court decide?

Enhanced compensation of Rs.2,75,076 awarded to the appellant with 8% interest from the date of the original award until realisation.

Joby Andrews Vs Dr.Mathew Abraham — 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 MR.JUSTICE BASANT BALAJI

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FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944

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MACA NO. 2037 OF 2018

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OPMV 1588/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM
APPELLANT/S:

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JOBY ANDREWS, S/O.E.M.ANTHRAYOSE, IDATHARA
MOOLAYIL, NALUNAKKAL P.O., VAKATHANAM,
CHANGANACHERRY, KOTTAYAM.
BY ADVS.
SRI.PHILIP T.VARGHESE
SMT.ACHU SUBHA ABRAHAM
SRI.ARJUN SATHISH KUMAR
SRI.THOMAS T.VARGHESE

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RESPONDENT/S:

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1DR.MATHEW ABRAHAM, PATHIYAPALLIL, NJALIYAKUZHY
BHAGOM, VAKATHANAM P.O.,
CHANGANACHERRY - 686538.
2FUTURE GENERALI INDIA INSURANCE CO. LTD.,
IV/278B, VETTEL ESTATE,
KANJIKUZHY,
KOTTAYAM – 686004.
*.The cause title is amended by correcting the
status of the insurer as the 2nd respondent
instead of the 3rd respondent as per order dated
11.10.19 in Ia 1/18 in MACA 2037/2018.

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OTHER PRESENT:

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ADV. AKHIL K. MADHAV
ADV.THOMAS M JACOB -R2

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 03.06.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

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MACA NO. 2037 OF 2018

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JUDGMENT

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(Dated this the 3^rd day of June 2022)

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Being dissatisfied with the compensation awarded in O.P. (M.V.) No.1588 of 2014 on the files of the Motor Accidents Claims Tribunal, Kottayam, the petitioner has filed this appeal.

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The case of the petitioner is as follows: On 11.6.2014 at about 17.30 hrs., while the appellant was riding his motor cyle bearing reg.No.33/A-1841 through Thengana – Njaliyakuzhy road from south to north direction, he gave signal to turn towards right to enter into Kurumbanadam public road and while turning towards right, he was hit by a car. The car was driven by the first respondent in excessive speed. The appellant sustained grievous injuries and was immediately taken to Medical College Hospital, Kottayam and thereafter, to Matha

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MACA NO. 2037 OF 2018

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Hospital, Thellakom. He was admitted in Medical Trust Hospital, Kochi as inpatient from 13.6.2014 to 14.7.2014. He was again admitted on 28.7.2014 for further treatment and was discharged on 4.8.2014.

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The appellant was conducting a business in the name of St. George Agencies providing building materials and was earning a monthly income of Rs.15,000/- at the time of accident. He had also obtained Trade Certificate in

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the trade Draftsman-Civil and had work experience for six years under Chartered Engineer and approved valuer. He is also a qualified Nurse and midwife. The disability assessed by the Medical Board was 31.27%. The appellant claimed a compensation of Rs.30,58,000/-.

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The first respondent entered appearance and filed

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a written statement contending that the petition is not

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maintainable. The amount claimed is highly excessive. He

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MACA NO. 2037 OF 2018

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has denied the fact that he was driving the car in a rash and

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negligent manner.

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The 2^nd respondent filed a written statement

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contending that the amount claimed is highly excessive and admitted that the vehicle was insured with the respondent at

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the time of the accident.

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The Tribunal, relying on Exts.A1 to A21 and Exts.B1 to B2 and X1, awarded a compensation of

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Rs.15,42,250/- with 9% interest. Aggrieved by the same, this appeal is filed.

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The counsel for the appellant submitted that the appellant was earning an income of Rs.15,000/- per month. But the Tribunal fixed the notional income of the appellant at Rs.12,000/- per month only. The appellant is a qualified Draftsman and also a qualified Nurse. Hence, the Tribunal

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was not justified in reducing the monthly income from

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MACA NO. 2037 OF 2018

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-5-

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Rs.15,000/- to Rs.12,000/-.

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The counsel for the Insurance Company/2nd respondent submitted that when there is no proof to the income of the appellant, the Tribunal was justified in taking the notional income of the appellant as Rs.12,000/-, relying on the decision reported in Ramachandrappa v.

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Manager, Royal Sundaram Alliance Insurance Company Limited [2011 (13) SCC 236]. The counsel for the appellant submits that the compensation ought to have increased on various heads taking into consideration the income as Rs.15,000/-.

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Heard.

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There is evidence to show that the appellant is a

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qualified Draftsman and qualified Nurse and also he had

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undergone short terms courses evidenced from Exts.A1

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series and started business in the year 2006 evidenced from

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MACA NO. 2037 OF 2018

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-6-

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Ext.A18 to A19 documents. When there is evidence before

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the court that he was a qualified Draftsman and a qualified nurse, the notional income ought not have been taken by the Tribunal as Rs.12,000/-. The appellant has claimed only Rs.15,000/- as his monthly income and in that case, the Tribunal ought to have taken the monthly income as Rs.15,000/- per month. Taking the monthly income of the appellant as Rs.15,000/- the compensation for loss of earning can be re-worked as Rs.15,000 x 10 = Rs.1,50,000/-. Deducting the compensation awarded, the appellant is entitled to the balance amount of Rs.30,000/(1,50,000 – 1,20,000) under the head.

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Towards compensation for pain and suffering, the appellant claimed Rs.3,00,000/-. The appellant sustained injuries such as fracture shaft of left femur, fracture proximal phalanx of left great toe with extrinsic wound left

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MACA NO. 2037 OF 2018

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leg and left foot, degloving injury left lower leg and foot and deformity left thigh. Hence, I am inclined to enhance the compensation under the head compensation for pain and suffering from Rs.60,000/- to Rs.1,00,000/- . The difference will be, 1,00,000 – 60,000 = Rs.40,000/- towards the same.

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Taking into consideration of the injuries sustained by the appellant, I am inclined to enhance the compensation towards loss of amenities as Rs.75,000/- from Rs.50,000/-.

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The appellant would be entitled to the balance amount of Rs.25,000/- under the head.

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The Tribunal, taking the monthly income as Rs.12,000/-, has granted Rs.7,20,500/- Towards loss of permanent disability. When the income is taken as Rs.15,000/-, the compensation for loss of permanent disability would be worked as 15,000 x 12 x 31.27 x

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MACA NO. 2037 OF 2018

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16/100 = Rs.9,00,576/-, less the amount awarded by the Tribunal - 9,00,576 - 720500 = Rs.1,80,076/-. Thus the total enhanced compensation would be 180076 + 25000 + 40000+ 30000 = Rs.2,75,076/-.

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In the result, the appeal is allowed and the appellant is entitled to the enhanced compensation of Rs.2,75,076/(Rupees two lakh seventy five thousand and seventy six only) with 8% interest from the date of award till realisation.

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BASANT BALAJI, JUDGE

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dl/

Joby Andrews v. Dr.Mathew Abraham

Case brief

What is this about?

What did the court decide?

Joby Andrews v. Dr.Mathew Abraham

Case brief

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What did the court decide?

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