Partly allowed

Joy.C.George v. the Divisional Manager, United India Insurance Company Ltd.

Kerala HC3 Mar 2022MACA/2072/2012

Case brief

AI extract

What is this about?

An appeal was filed by a motor accident claimant challenging the quantum of compensation awarded by the Motor Accidents Claims Tribunal. The High Court upheld the finding that injuries resulted from vehicle use and held no fault on driver's part. The court enhanced compensation by Rs.7,000 for loss of earnings and pain/suffering based on the Second Schedule, applying the 2009 Divakaran decision on

What did the court decide?

Enhanced compensation of Rs.7,000/- along with interest at 7.5% per annum to be paid by the Insurance Company within two months.

Joy.C.George Vs the Divisional Manager, United India… — 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 M.R.ANITHA

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THURSDAY, THE 3^RD DAY OF MARCH 2022 / 12TH PHALGUNA, 1943

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MACA NO. 2072 OF 2012

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AGAINST THE AWARD IN OPMV 91/2007 OF THE MOTOR ACCIDENT CLAIMS

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TRIBUNAL ,KALPETTA

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APPELLANT/PETITIONER:

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JOY.C.GEORGE AGED 37 YEARS S/O. GEORGE, CHIRAPATTU HOUSE, THAZHEMMUNDA, KENICHIRA VIA, WAYANAD DISTRICT.

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BY ADV SMT.CELINE JOSEPH

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RESPONDENT/RESPONDENT NO.2:

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THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LTD. DIVISIONAL OFFICE, NO. 2, PB 192, SEEMA TOWERS, MAVOOR ROAD, KOZHIKODE-673 121

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BY ADV SRI.S.K.AJAY KUMAR

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OTHER PRESENT:

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SRI.S.K AJAY KUMAR -RESPONDENT.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA NO. 2072 OF 2012

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JUDGMENT

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Appellant is the claimant in O.P.(MV) No.91/2007 on

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the file of Motor Accidents Claims Tribunal, Kalpetta. The claim petition has been filed under Section 163(A) of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation on account of the injuries sustained by the appellant in a motor accident.

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It is alleged that the appellant/claimant sustained injury in a motor accident occurred on 11.08.2006 at about 10.45 PM while the appellant was traveling in an auto rickshaw bearing Registration No. KL-11/B-6294 from Thazhamunda to Poothadi and when it reached Madathumpadi bridge, bridge collapsed and thereby the appellant sustained severe injuries. Total compensation of Rs.1,48,000/- has been claimed.

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The 1^st respondent is the owner cum driver of the vehicle and the 2^nd respondent is the insurer of the offending vehicle.

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The 1^st respondent remained ex parte.

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5. Before the Tribunal the 2^nd respondent/Insurance

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MACA NO. 2072 OF 2012

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Company filed written statement admitting the policy coverage with respect to the offending vehicle. It is contended that the claimant sustained injuries not due to the use of the motor vehicle but due to the collapse of the bridge. Hence, the claimant is not entitled to get any compensation.

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6 . There was no oral evidence from either side. Exts.A1 to A7 (series) and Ext.C1 were marked from the side of the appellant/claimant.

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7 . Tribunal, on evaluating the pleadings and materials produced, found that the appellant/claimant sustained injuries out

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of the use of motor vehicle and 2 nd respondent was held liable to identify the first accused.

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8 . Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellant/claimant (herein after be referred as 'claimant') came up in appeal before this Court on various grounds stated in the memorandum of appeal.

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In this case, the compensation awarded by the tribunal

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MACA NO. 2072 OF 2012

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under various heads are as follows:-

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SI No	Head of claim	Amount claimed (in rupees)	Amount awarded (in rupees)	Basis vital details in a nut-shell
1	Income/notional income	Nil	Nil	Nil
2	Loss of earning(Total)	10,000	6,000	(2x3000)
3	Loss of earning (Partial)	Nil	Nil	Nil
4	Medical and miscellaneous expenses	50,000	5,500	Acceptable bills for Rs.5,446/- produced
5	Future treatment	Nil	Nil	Nil
6	Bystander expenses	10,000	Nil
7	Transportation expenses	1,000	Nil
8	Extra nourishment	1,000	Nil
9.	Damage to clothing etc	1,000	Nil
10.	Pain and suffering	25,000	5,000
11	Loss of dependency	N.A	N.A	N.A
12	Loss of consortium	N.A	N.A	N.A
13	Loss of love and affection	N.A	N.A	N.A
14	Compensation for permanent disability	50,000	40,800	12x17x2000x 10/100
15	Loss of amenities and conveniences, etc.
	TOTAL		Rs.57,300	Rs.57,300/- along with interest at the rate of 7.5% per annum from the date of filing of the petition till the date of payment

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Since, claim petition has been filed under Section 163 A

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MACA NO. 2072 OF 2012

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claimant is not bound to prove the negligence or fault on the part of the driver of the offending vehicle and from the pleadings and documents Tribunal rightly found that the claimant sustained injuries out of the use of motor vehicle and hence 2^nd respondent rightly held liable to indemnify the insured.

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It has been contended by the counsel for the claimant that monthly income of Rs.2,000/- fixed is very low. But monthly income claimed in the petition is also Rs.2,000/-. In National Insurance Co.Ltd V. Divakaran [2009 4 KLT 90] it has been held that only persons with an annual income upto Rs.40,000/can avail benefit of Section 163 A. Hence, Rs.2,000/- taken as monthly income by the Tribunal is only to be approved.

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The following injuries have been noted by the Doctor:Haematoma right eye peri orbital

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Cut lacerated wound right supra orbital region 2x1x0.5 cm Supra abrasion left elbow 2x2cm Superficial abrasion right leg 1x1cm

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CT scan showed right frontal bone fracture with minimal arachnoid hedge

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Right frontal region, Right and left maxillary with sinusitis

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MACA NO. 2072 OF 2012

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The claimant had appeared before the Medical Board, Medical college Hospital, Kozhikode. The report issued by the medical board is marked as Ext.C1. The permanent disability of the claimant was assessed by the medical board as 10%. The monthly income is already approved as Rs.2,000/-. Claimant was 32 years old at the time of accident. So as per the II schedule attached to the Act the proper multiplier would be 17 adopted by the Tribunal. So the compensation towards disability and future loss of earnings power would be 2000x12x17x10/100=Rs.40,800/-. That has already been awarded by the Tribunal.

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According to the learned counsel for the claimant the claimant claimed Rs.10,000/- under the head of loss of earning but the Tribunal fixed the monthly income as Rs.6,000/- (3,000x2) which according to him is very low.

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The claimant had appeared before the tribunal, whose disability was personally examined. The claimant had sustained head injury and he stated that he suffers headache, pain on the neck and difficulty in chewing.

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MACA NO. 2072 OF 2012

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As per II schedule clause 5 loss of income for actual period of disbursement not exceeding 52 weeks can be awarded. In this case taking into account the nature of injuries period of treatment and disability sustained, loss of earnings for 4 months can be granted. Monthly income claimed is Rs.2,000/-. So towards loss of earnings claimant is entitled to get compensation for 4 months. That will come to Rs.2,000x4=Rs.8,000/-. Deducting the amount already awarded the balance would be Rs.2,000/-. Claimant sustained grievous injury involving fracture of frontal bone, 10% permanent disability is also assessed by the Medical Board. Hence, as per clause 4 of the II schedule claimant is entitled to get Rs.5,000/- towards pain and suffering.

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In the result, the appellant/claimant is allowed to realise enhanced compensation of Rs.7,000/- (Rs.2,000+5,000) (Rupees seven thousand only) in this appeal, which will carry interest at the rate of 7.5% per annum from the date of petition till realisation. The respondent is directed to pay the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of

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MACA NO. 2072 OF 2012

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this judgment.

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In the result, appeal allowed in part by enhancing compensation to an amount of Rs.7,000/- (Rupees seven thousand only) which will carry interest @ 7.5% per annum from the date of petition excluding the period of delay of 200 days in filing the appeal. The respondent, Insurance Company, shall satisfy additional compensation granted in this appeal together with interest within a period of two months from the date of receipt of certified copy of this judgment.

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The appellant shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment.

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There will be no order as to costs.

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Sd/-

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M.R.ANITHA JUDGE

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ska

Joy.C.George v. the Divisional Manager, United India Insurance Company Ltd.

Case brief

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Joy.C.George v. the Divisional Manager, United India Insurance Company Ltd.

Case brief

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