Allowed

Ratheesh v. Sakeer Hussain

Kerala HC25 Nov 2022MACA/211/2014

Case brief

AI extract

What is this about?

The High Court allowed the appeal altering the quantum of compensation in a motor accident case. The Court corrected an arithmetical error in the award, reassessed income and disability percentages, and enhanced specific compensation heads despite the appeal being filed over a year late.

What did the court decide?

Compensation affirmed at Rs. 1,10,510 + additional Rs. 8,510 = Rs. 1,13,600 plus 7.5% interest.

Ratheesh Vs Sakeer Hussain — 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 25TH DAY OF NOVEMBER 2022 / 4TH AGRAHAYANA, 1944

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MACA NO. 211 OF 2014

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AGAINST THE AWARD DATED 30.04.2012 IN O.P(M.V) NO.945/2008 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD

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APPELLANT/PETITIONER:

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RATHEESH, S/O.KRISHNAN, AGED 31 YEARS,
RESIDING AT PANNIKULAMBU HOUSE, P.O.MANGALAM DAM,
ALATHUR, PALAKKAD DISTRICT.

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BY ADVS.SRI.T.C.SURESH MENON
 SRI.A.R.NIMOD

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RESPONDENTS/RESPONDENTS:

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1 SAKEER HUSSAIN, RESIDING AT 9/504, VADAKKEKULAM, MANGALAM DAM, ALATHUR, PALAKKAD - 678 706.

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2 PRAKASAN S/O.THANKAPPAN, RESIDING AT PUTHENPURACKAL HOUSE, MANGALAM DAM, ALATHUR, PALAKKAD - 678 706.

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3 THE NEW INDIA ASSURANCE COMPANY LIMITED BRANCH OFFICE, P.B.NO.43, N.S.TOWERS, PALAKKAD - 678 013.

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R3 BY ADV.SMT.A.SREEKALA, STANDING COUNSEL

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
25.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.No.211 of 2014

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JUDGMENT

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 Dated this the 25th day of November, 2022

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This Appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Palakkad (for short ‘the Tribunal’) on 30.04.2012 in OP (MV) No. 945/2008.

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For the sake of clarity, the parties to this appeal will hereinafter be referred to as the Petitioner and respondents 1 to 3 in accordance with their status before the Tribunal.

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The appellant is the petitioner before the Tribunal who has raised a claim for Rs.3,01,000/- as compensation from the respondents in the Original Petition. According to him he met with a motor accident at about 7.45 p.m. on 31.05.2008. He was travelling in a jeep bearing Registration No.KL-12C/230 from Palakkad to Thrissur. The accident was occurred near Paalana Hospital when the Jeep overturned to the right side of the road, as the driver lost control over it due to his driving in high speed. He sustained serious injuries and was taken to Paalana Institute of Medical Sciences, Palakkad for treatment. After availing First Aid treatment therefrom he was transferred to Elite Mission

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MACA.No.211 of 2014

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Hospital, Thrissur for better medical management. He claimed to be a rubber tapper earning Rs.4,000/- as his monthly income. Alleging that the motor accident was occurred due to the rash and negligent driving by its driver and claiming a sum of Rs.3,01,000/- as compensation the above Original Petition was moved before the Tribunal.

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The owner, driver and insurer of the jeep bearing Registration No.KL-12C/230 were arrayed as respondents 1 to 3 in the original petition. 1^st and 2^nd respondents filed written statements raising contentions as follows:

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The Jeep bearing Registration No.KL-12C-230 was driven by the 2^nd respondent with utmost care and in clear observance of all traffic rules. The motor accident in question was occurred due to the negligence of the petitioner. The age, occupation, monthly income, the nature of injuries and the period of treatment and the expenditure incurred for treatment were denied. The compensation claimed is also disputed for its exorbitance.

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3^rd respondent has also filed written statement admitting insurance coverage for the Jeep as on date of accident. The

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MACA.No.211 of 2014

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age, occupation and monthly income of the petitioner were disputed. Similarly the nature of injuries, the period of treatment and expenditure incurred for treatment were also denied. A further contention was also raised that the Jeep was overloaded with more than six persons and therefore the insurer was not liable to pay compensation.

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Evidence was adduced in common in the original petition on hand and other petitions filed by other victims. The evidence consists of the deposition of PW1 and Exts.A1 to A25. In the case on hand the evidence is confined to oral testimony of

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PW1 and Exts.A1 to A8. No evidence was let in by the respondents. On appreciation of the evidence on record, the Tribunal found that the motor accident was occurred due to the rash and negligent driving of the Jeep by the 2^nd respondent. The Tribunal has also found that the petitioner sustained injuries in the motor accident and therefore is entitled to get compensation. Rs.1,10,510/- was arrived at as the compensation payable. But the amount was wrongly mentioned in the award as 1,10,510/-, rounded as Rs.1,02,000/-. Accordingly respondents 1 to 3 were directed to deposit

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MACA.No.211 of 2014

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Rs.1,02,000/- with interest at the rate of 7.5% per annum from the date of the Original Petition till the date of realisation.

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It is contended by the learned counsel that the total compensation arrived at by the Tribunal is Rs.1,10,510/- but the figure was noted down mistakenly in the impugned award as Rs.1,02,000/-. He sought for correction of the figure of compensation accordingly.

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The learned counsel has contended that the monthly income for the purpose of computation of compensation was fixed by the Tribunal as Rs.3,000/-. According to him, the petitioner had raised a claim for Rs.4,000/- as the monthly income. Since the motor accident was occurred in the year 2008, the Tribunal is justified in considering Rs.4,000/- as the monthly income and calculating compensation on its basis. It is further contended by the learned counsel that under various other heads of compensation also the Tribunal has awarded meagre sums as compensation and re-assessment and modification of those is required. It is also contended by the learned counsel that the disability of the petitioner was assessed by a medical practitioner as 12% and a certificate was also

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MACA.No.211 of 2014

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issued by him which is marked in evidence as Ext.A7. The doctor who had issued the same was also examined before the Tribunal as PW1. The Tribunal was reluctant to consider the disability to assess compensation on its basis. According to him the Tribunal is unjustified in not accepting 12% disability certified in Ext.A7 as such.

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The monthly income was assessed by the Tribunal notionally as Rs.3000/-. Considering the year in which the accident was occurred, this Court finds it appropriate to re-fix Rs.6,500/- as the monthly income. Compensation for loss of earning was calculated by the Tribunal as Rs.5000/-. On what basis, the sum was arrived at is not mentioned in the impugned award. The petitioner had sustained fracture of C2 in the motor accident. He had also sustained fracture of Axis, involving the body, left pedicle and articular pillar and laceration on right side of the face. The wound was sutured by a plastic surgeon and Philadelphia Collar was applied for the neck. He was also treated with medication. He was advised at the time of discharge on 17.06.2008 to continue medication further for one month and to review. Ext.A7 is a certificate assessing disability

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MACA.No.211 of 2014

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of the petitioner. Pain in neck while doing some work and stiffness of cervical spine were based for assessment of 12% disability. An x-ray was found taken on 27.07.2010 and the fracture of axis was noted united. But the Doctor who issued it when examined as PW1 has stated that he has not treated the petitioner at any point of time. According to him, the petitioner approached him only for assessment of his permanent disability and to obtain a certificate, that the present condition of the petitioner is not known to him and that he has not examined the fracture site to assess the disability. It appears from the version of PW1 that though he has assessed 12% as the permanent disability and issued Ext.A7 certificate, he has no idea about the present condition of the petitioner.

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Petitioner had sustained fracture of C2 spine in the motor accident. Even at the time of discharge from the hospital also the neck was reported stiff and all movements of the neck, restricted. Therefore he was advised at the time of discharge to continue use of a neck collar. How long he has to use the collar was not mentioned in Ext.A6. But it is found reported in the medical documents that C-spine has become straightened

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MACA.No.211 of 2014

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following the injuries sustained in the motor accident. Taking those aspects into consideration, this court finds that there is basis for fixation of permanent disability as 10%. It is found from the impugned award that the petitioner has been awarded with Rs.5,000/- as compensation for loss of earning. Duly considering the nature of injuries sustained by the petitioner, this Court finds it reasonable to award compensation for loss of earnings for two months. Therefore Rs.13,000/- (Rs.6,500 x 2) is arrived at. Rs.5,000/- was already awarded and therefore, the petitioner will get Rs.8,000/- as additional compensation under that head. As compensation towards bystander expenses, Rs.2,550/- stands awarded by the Tribunal being inadequate, this Court awards Rs.3,000/-, and thereby the petitioner will get Rs.450/- as additional compensation under that head. As compensation towards transportation expenses, Rs.2,000/- was awarded by the Tribunal. It is noticed that the petitioner was taken to Elite Mission Hospital, Thrissur immediately after the accident and thereafter the treatment was continued at Paalana Institute of Medical Sciences, Palakkad. Therefore the petitioner must have incurred more amount for transportation than that

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MACA.No.211 of 2014

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was awarded by the Tribunal. This Court enhances the compensation to Rs.3,000/- and therefore, the petitioner will get Rs.1,000/- as additional compensation under that head. As compensation towards extra nourishment, it is found that Rs.1,500/- was awarded by the Tribunal. In the nature of injuries sustained by the petitioner he must have to take nutritious food and therefore this Court awards Rs.1,500/- more. Under the head damages to clothing Rs.500/- being the sum stands awarded by the Tribunal, this Court awards Rs.500/more. As compensation towards pain and sufferings, this Court awards Rs.25,000/-. Rs.18,000/- stands awarded by the Tribunal, when deducted from it, the petitioner will get Rs.7,000/- as additional compensation. As compensation towards loss of amenities and enjoyments in life, the Tribunal has awarded Rs.9,000/- and this Court enhances it to Rs.12,000/-. Therefore, the petitioner will get Rs.3,000/- as additional compensation. The compensation stands awarded towards permanent disability needs to be reassessed on the basis of Rs.6,500/-, the modified monthly income, and 10%, the modified percentage of disability. When the compensation is re-

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MACA.No.211 of 2014

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assessed on the basis of the factors stated above, and maintaining the multiplier adopted by the Tribunal, the petitioner will get Rs.1,32,600/- (Rs.6,500/- x 12 x 17 X 10/100). Rs.48,960/- stands awarded by the Tribunal when deducted from it, the petitioner will get Rs.83,640/- as additional compensation.

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In the above manner of re-assessment, the petitioner will get Rs.1,05,090/- as additional compensation. In view of the error crept in the award while mentioning the figure of compensation, the petitioner has sustained a loss of Rs.8,510/-. Thus, the figure is corrected as Rs.1,10,510/- and therefore, Rs.8,510/- is payable over and above the sum stands mentioned by the Tribunal in the impugned award as the compensation payable. Thus the petitioner will get Rs.1,13,600/(Rupees One Lakh Thirteen Thousand and Six Hundred only) and it will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realization. The 3^rd respondent being the insurer shall deposit the above said sum with interest at the rate of 7.5% per annum and the sum originally stands awarded by the Tribunal with interest at the

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MACA.No.211 of 2014

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rate as ordered in the original award (if not already paid) within a period of two months from the date on which a certified copy of this judgment is received. The appeal having been filed with a delay of 467 days, the 3^rd respondent is exonerated from liability to pay interest fixed for that period as per order passed by this Court on 03.01.2022. Compensation shall be disbursed to the petitioner as per direction issued by this Court in Circular No.03/2019 dated 06.09.2019.

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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

Ratheesh v. Sakeer Hussain

Case brief

What is this about?

What did the court decide?

Ratheesh v. Sakeer Hussain

Case brief

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