Allowed

Kunjachan.K.J. v. Santhosh

Kerala HC7 Dec 2022MACA/2958/2014

Case brief

AI extract

What is this about?

The High Court enhanced penalty compensation awarded by the Motor Accidents Claims Tribunal for injuries sustained in a motor accident. The court found the Tribunal unreasonably fixed the petitioner's monthly income and failed to award compensation for certain heads like loss of earning due to hospitalization. The court re-assessed these elements and granted additional compensation.

What did the court decide?

Additional compensation of Rs.13,450/- awarded at 7.5% interest to include compensation for loss of earning, extra nourishment, transportation, and bystander expenses, along with enhancement of pain a

Kunjachan.K.J. Vs Santhosh — Medical Negligence | 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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WEDNESDAY, THE 7TH DAY OF DECEMBER 2022 / 16TH AGRAHAYANA, 1944

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MACA NO. 2958 OF 2014

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AGAINST THE AWARD IN O.P(MV) NO. 1240/2010 DATED 24.02.2014 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM

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APPELLANT/PETITIONER :-

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KUNJACHAN.K.J., AGED 54 YEARS
S/O.K.P.JOSEPH, KIRIYANTHAL HOUSE,
NAYARAMBALAM, VYPIN NAYARAMBALAM VILLAGE,
KANAYANNUR TALUK, ERNAKULAM PIN-682 508

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BY ADVS.
SRI.K.C.ELDHO
SRI.ANEESH JAMES
SRI.JIJO THOMAS
SRI.SURAJ.S

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RESPONDENTS/RESPONDENTS :-

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1SANTHOSH, AGED 33 YEARS
S/O.DASAN, OLIPPARAKKUNNEL HOUSE, KEEZHMADU P.O,
ALUVA EAST VILLAGE, ALUVA, ERNAKULAM-683 105
(1ST RESPONDENT IN THE OP(MV)

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2M.K. RAFEEQUE SO.KHALID
MUNDAPPILLY HOUSE, THURUTHIPADY ROAD,
EADAYAPURAM P.O. ALUVA-683 101
(2ND RESPONDENT IN THE OP(MV)

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3THE UNITED INDIA INSURANCE COMPANY LTD
ERNAKULAM BRANCH-682 016
(3RD RESPONDENT IN THE OP(MV)
BY ADVS.
SMT.T.C.SOWMIAVATHY
SRI.JOHN JOSEPH VETTIKAD

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 07.12.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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MACA NO. 2958 OF 2014

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JUDGMENT

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Dated this the 07^th day of December, 2022

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This appeal is filed against an award passed by Motor Accidents Claims Tribunal, Ernakulam (for short ‘the Tribunal’) on 24.02.2014 in O.P.(MV) No.1240/2010. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition.

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The Tribunal has arrived at Rs.19,750/- as compensation payable to the petitioner for the injuries sustained by him in a motor accident. As per the averments in the Original Petition, at about 4.20 pm on 27.06.2003, the petitioner while boarding a bus bearing Registration No.KL-7/AF 2972 which was proceeding from High Court Junction to Aluva, was thrown away due to careless moving of the bus ahead by it’s driver. The petitioner sustained serious injuries in the impact and was treated

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MACA NO. 2958 OF 2014

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at City Hospital, Ernakulam and thereafter at Medical Trust Hospital, Ernakulam. Alleging that the motor accident was occurred due to the rash and negligent driving of the bus by its driver and claiming a sum of Rs.1,60,000/- as compensation, the above Original Petition was filed by the petitioner before the Tribunal. The driver, owner and the insurer of the bus were arrayed as respondents 1 to 3 in the Original Petition seeking compensation.

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The first and second respondents though received summons from the Tribunal did not turn up to contest the Original Petition and therefore, were declared exparte. The third respondent entered appearance and filed written statement admitting issuance of a valid policy for the bus covering the date of the accident. It was contended that the motor accident was occurred not due to the rash and negligent driving of the bus by the first respondent and that the bus has no involvement in the alleged accident. The age, occupation and the monthly income

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MACA NO. 2958 OF 2014

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of the petitioner were disputed. The sum claimed as compensation is also disputed for its exorbitant nature. It was contended further that the driver of the bus had no authorization to drive the same at the relevant time of the motor accident and the owner of the bus by permitting the driver having no authorization to drive the bus has violated the policy conditions. The bus involved was alleged as not holding a fitness certificate and permit. Therefore, for violation of the policy conditions, the third respondent is not liable to indemnify the insured.

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Evidence adduced by the petitioner before the Tribunal consists of Exts.A1 to A10. No evidence was let in by the third respondent. Based on the above evidence, the Tribunal found negligence on the part of the driver of the bus bearing Registration No.KL-7/AF 2972, who was arrayed as the first respondent in the Original Petition.

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The Tribunal has also found that the petitioner in view of the injuries sustained in the motor accident is entitled to

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MACA NO. 2958 OF 2014

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get compensation. Rs.19,750/- was arrived at as the

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compensation payable and the 3^rd respondent was directed to pay the said amount with interest at the rate of 6% per annum from

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the date of filing of the Original Petition till the date of realization alongwith proportionate costs, within one month from the date of the award. Aggrieved by the quantum of compensation awarded, the appeal on hand is filed.

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It is contended by Shri.K.C.Eldho, the learned counsel for the petitioner that the Tribunal failed to award any compensation under the heads future treatment and loss of earning power. According to him, though Rs.5,000/- and Rs.25,000/- respectively were claimed as compensation in the Original Petition under those heads, the Tribunal failed to award any sum.

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This Court notices from the impugned award that evidence adduced by the petitioner as Exts.A1 to A10 incorporates only two medical documents, which are the wound

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MACA NO. 2958 OF 2014

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certificate issued from Medical Trust Hospital, Ernakulam and the discharge summary issued from the same hospital. Those documents were respectively marked in evidence as Exts.A7 and A8. The petitioner failed to get his disability due to the injuries sustained assessed by a Medical Board. The Petitioner did not even mount the witness box to depose about his difficulties in perusing his occupation following the motor accident. The Petitioner has not let in evidence to establish that in view of the injuries sustained in the motor accident, treatment is required to be continued further. Therefore, for want of evidence, this Court is unable to grant compensation claimed for future treatment expenses and loss of earning power.

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Though the learned counsel for the petitioner did not argue on the inadequacy of compensation stand granted under various other heads, this Court is duty bound to award just and reasonable compensation under all heads. The monthly income of the petitioner is found notionally fixed by the Tribunal as

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Rs.3,000/- for the purpose of calculation of compensation for loss of earnings. The petitioner claimed to be an employee in an Ice Factory, but, he did not opt to tender oral evidence to establish his occupation and monthly income. Such being the circumstance, the Tribunal was constrained to fix the monthly income on a notional basis. However, the fixation of monthly income as Rs.3,000/- is highly unreasonable, when viewed in the backdrop of the year in which the motor accident was occurred. This Court finds Rs.4,000/-, a reasonable sum to be fixed as the monthly income as on date of occurrence and accordingly, do so.

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The Tribunal failed to award any sum as compensation towards loss of earning. It is noticed from Exts.A7 and A8 that the petitioner was treated as inpatient for 13 days from 27.06.2003 to 10.07.2003. He was also asked to review in the hospital after finishing the meditation advised. When viewed in that backdrop, the Tribunal is found unjustified for not awarding any compensation for loss of earning. When viewed in

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MACA NO. 2958 OF 2014

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the light of the grave injuries sustained by the petitioner, this Court finds it reasonable to consider two months for calculating compensation for loss of earning. When compensation for loss of earning is re-assessed with the modified monthly income of Rs.4,000/-, Rs.8,000/- (Rs.4,000/- x 2) is arrived at. Rs.3,000/was already awarded by the Tribunal and that when deducted from the sum now arrived at, the petitioner will get Rs.5,000/- as additional compensation. This Court notices that the Tribunal failed to award reasonable compensation towards bystander expenses as well as transportation expenses. The sums stand awarded being Rs.1,000/- and Rs.2,000/- respectively, this Court grants Rs.950/- and Rs.1,000/- more respectively as additional compensation under those heads. As compensation towards extra nourishment, the Tribunal failed to award any sum as compensation and therefore, this Court awards Rs.1,500/-. As compensation towards pain and sufferings Rs.5,000/- stands awarded and this Court is inclined to modify it to Rs.10,000/-,

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MACA NO. 2958 OF 2014

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and therefore, the petitioner will get Rs.5,000/- as additional compensation.

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In the above manner of re-assessment, Rs.13,450/(Rupees Thirteen thousand four hundred and fifty only) is found payable as additional compensation and this Court awards so. 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 realisation. Due to delay of 94 days occurred in filing the appeal on hand, the 3^rd respondent stands exonerated from paying interest for that period, vide order passed on 04.12.2021 in C.M.A.No.2 of 2014. Therefore, the 3^rd respondent need not pay interest for the period of delay occurred in filing the appeal. The 3^rd respondent shall pay the additional compensation with interest and the original compensation stands awarded by the Tribunal with interest fixed for it, within two months’ from the date of receipt of a certified copy of this judgment, in accordance with the direction issued by this Court in Circular No.03/2019 dated 06.09.2019.

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MACA NO. 2958 OF 2014

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It is found from the impugned award that the third

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respondent has successfully established before the Tribunal that

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the 1^st respondent, the driver of the bus was not holding a valid driving licence at the relevant time of the motor accident. Accordingly, the Tribunal has permitted the 3^rd respondent to recover the compensation with interest, from the 2^nd respondent. For want of any challenge against the said finding, the right of recovery granted in faovur of the 3^rd respondent is maintained.

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MACA stands allowed accordingly.

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Sd/-

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MARY JOSEPH JUDGE

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SMA

Kunjachan.K.J. v. Santhosh

Case brief

What is this about?

What did the court decide?

Kunjachan.K.J. v. Santhosh

Case brief

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What did the court decide?

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