Single Judge set aside the Tribunal's award on facts, enhancing compensation for loss of earning, disability, pain and suffering, and other heads due to erroneous income assessment and multiplier application.
Compensation enhanced by additional Rs.1,73,100/- plus interest from date of filing of the original petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 9TH DAY OF NOVEMBER 2022 / 18TH KARTHIKA,
1944
MACA NO. 2118 OF 2013
AGAINST THE ORDER/JUDGMENT IN OPMV 891/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA DATED 31/10/2012
APPELLANT/PETITIONER:
ABRAHAM THOMAS @ TIJO
NOW AGED 30 YEARS, S/O.T.T THOMAS,NELLIKAKUZHY
HOUSE,MADATHANI BHAGOM,THOTTAKADU KARA,THOTTAKADU
VILLAGE,THOTTAKADU P.O,NOW RESIDING AT CHAVOLIL
HOUSE,KEZHUVANKULAM P.O,PULIYANNOOR VILLAGE,
PIN 686 584
BY ADVS.SRI.C.M.TOMY
SRI.MATHEW SKARIA
RESPONDENTS/RESPONDENTS:
1 BABU THOMAS @ BABU S/O.THOMAS,MANNALAYIL HOUSE,MADAPPALLYVILLAGE,MADAPPALLY KARA,NADACKAPADAM BHAGOM, PIN 686 5462 TOMY THOMASS/O.OUSEPH,KALLOOPARAMBIL HOUSE,THOTTAKKADU PIN 686 5393 THE MANAGER NATIONAL INSURANCE CO.LTD,KOTTAYAM ,PIN 686 0014 MATHEW THOMAS KALLOOPARAMBIL HOUSE,THOTTAKKADU PIN 686 539 R3 BY ADV SRI.K.B.RAMANANDTHIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR HEARING ON 09.11.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
Dated this the 9th day of November, 2022
This appeal is filed by the petitioner injured who had filed O.P.(M.V.) No.859/2009 before Motor Accident Claims Tribunal, Pala (for short ‘the Tribunal’).
MACA No.2118 of 2013
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insurance coverage for the Stage Carriage Bus as on date of
MACA No.2118 of 2013
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accident. It was contended that the petitioner was an employee in a jewellery shop at the relevant time of accident. According to the 3rd respondent the age, occupation and monthly income stated in the claim petition are not true to facts.
MACA No.2118 of 2013
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It was pleaded in the Original Petition that the petitioner was a rubber tapper and civil contractor, earning Rs.14,000/- monthly. According to him, PW2 was also examined to establish the occupation. But discarding the evidence of PW2, the Tribunal has fixed the monthly income notionally as Rs.4,000/-. The learned counsel has also urged that the Tribunal failed to award a reasonable sum as compensation under various heads. The learned counsel has pointed out that though the permanent disability of the petitioner was assessed by an independent doctor as 31%, the Tribunal has considered only 22%. According to him, the Tribunal is unjustified in doing so. He canvassed for re-fixation of compensation for loss of disability by taking the entire percentage of disability certified by the doctor.
MACA No.2118 of 2013
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examined one among his customers to prove his occupation. The oral evidence of the witness being not corroborated by any other materials is not relied on by the Tribunal to take a view that the petitioner was doing the work as a rubber tapper. No evidence to establish the monthly income is forthcoming. The Tribunal fixed the monthly income on a notional basis in the above context and is justified in adopting the method. But the quantum taken is disproportionate, especially when the motor accident causing injuries to the petitioner was occurred in the year 2007. Rs.6,000/- appears reasonable and this Court is inclined to fix accordingly. The petitioner had sustained dislocation of left shoulder, fracture on mid-shaft of left femur, fracture and loss of bone on left ankle and fracture on L1, L2, L3 vertebrae. Apart from that he had also sustained multiple abrasions on the face, contusion and tenderness on the left thigh, pain and tenderness on the left shoulder and degloving injury on left ankle and foot with loss of soft tissues. Petitioner had availed treatment initially from Medical College Hospital, Kottayam and was shifted to Matha Hospital, Thellakom and finally to Medical Trust Hospital,
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Ernakulam. Treatment procedures were PFN nail surgery for femur fracture, L2 Laminectomy for D12, L1 and L3, pedicle screw fixation for spine fracture and flap plastic surgery for ankle injury. Plastic surgery and skin grafting were also done for loss of entire soft tissues on left ankle and foot. He was advised at the time of discharge to continue physiotherapy and medication and have review after one month.
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compensation. Under the head damages to clothing the Tribunal has awarded only Rs.500/- and this Court is inclined to modify it to Rs.1,000/-, so that the petitioner will get Rs.500/- additionally. Under the head pain and suffering, the Tribunal has awarded Rs.23,000/- and this Court is inclined to modify it to Rs.50,000/and thus, the petitioner will get Rs.27,000/- as additional compensation. Under the head, loss of amenities and enjoyments in life the Tribunal has awarded Rs.25,000/-. The said sum being reasonable, this Court is declined to interfere with. The Tribunal has adopted 17 as the multiplier. It being wrong, this Court is inclined to substitute it by 18. When compensation for disability is reassessed on the basis of the modified monthly income of Rs.6,000/-, 22% as the disability and 18 as the multiplier, Rs.2,85,120/- is arrived at. Rs.1,79,520/- stands awarded by the Tribunal and when that is adjusted, the petitioner will get Rs.1,05,600/- as additional compensation.
MACA No.2118 of 2013
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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 3rd respondent being the insurer shall deposit the sum now arrived at as additional compensation with interest fixed on it and the amount already awarded by the Tribunal alongwith interest fixed on it (if not paid) within a period of two months from the date of receipt of a certified copy of this judgment.
M.A.C.A stands allowed accordingly.
Sd/-
MARY JOSEPH,
JUDGE.
ttb
2 issues framed by the court
Whether the compensation awarded by the Motor Accident Claims Tribunal requires modification on facts.
Whether the quantum of headless compensation and medical expenses needs enhancement.
ABRAHAM THOMAS @ TIJO
BABU THOMAS @ BABU
TOMY THOMAS
THE MANAGER NATIONAL INSURANCE CO.LTD
MATHEW THOMAS
MARY JOSEPH
As recorded by the court registry
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