Partly allowed

Prakasan v. Mohammed Razak

Kerala HC8 Nov 2022MACA/312/2013

Case brief

AI extract

What is this about?

This appeal challenged the compensation quantum awarded to an injured bicycle rider against a lorry driver. The High Court enhanced compensation by increasing the notional monthly income to Rs. 4,500, extending the loss of earnings period, and recalculating amounts for disability, pain, suffering, and extra nourishment.

What did the court decide?

Additional compensation of Rs. 37,000 granted with interest at 7.5% per annum; total compensation recalculated.

Prakasan Vs Mohammed Razak — 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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TUESDAY, THE 8TH DAY OF NOVEMBER 2022 / 17TH KARTHIKA, 1944

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MACA NO. 312 OF 2013

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AGAINST THE ORDER/JUDGMENT IN OP(MV) 118/2005 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL,THRISSUR DATED 04.10.2012

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APPELLANT/PETITIONER:

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PRAKASAN

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S/O. VELAYUDHAN RESIDING AT ITTIKOT HOUSE
KOTTAPADY, GURUVAYOOR, CHAVAKKAD, THRISSUR
DISTRICT.

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BY ADVS.SRI.T.C.SURESH MENON
 SRI.P.S.APPU
 SRI.A.R.NIMOD

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RESPONDENTS/RESPONDENTS:

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1 MOHAMMED RAZAK

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S/O. MOHAMMED, RESIDING AT PUTHUVEETTIL HOUSE,
BRAHMAKULAM.P.O., THAIKKAD, THRISSUR DISTRICT
PIN-680 104.

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2JAYAN.K..K.
S/O. KOCHUNNY, RESIDING AT KONDARAN VALAPPIL
HOUSE, P.O. KADAVALLOOR,
THRISSUR DISTRICT PIN-680 543.

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3NATIONAL INSURANCE COMPANY LIMITED
GURUVAYOOR BRANCH OFFICE, P.B. NO. 42, 1ST FLOOR
SREE NARAYANA TOURIST BUILDING, OPP. TOWNSHIP BUS
STAND, EAST NADA, GURUVAYOOR,
THRISSUR DISTRICT-680 101.
BY ADV SRI.K.B.RAMANAND

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR ADMISSION ON 08.11.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

-:2:-

MACA No.312 of 2013

JUDGMENT

Dated this the 8^th day of November, 2022

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This appeal is originated from an award passed by Motor Accident Claims Tribunal, Thrissur (for short ‘the Tribunal’) on 04.10.2012 in OP(MV) No. 118/2005. Appellant is the injured in a motor accident occurred at 10 a.m. on 16.12.2004. He was riding a bicycle through Guruvayur-Kunnamkulam public road and a lorry bearing registration No.KEF-2282 hit his bicycle at Kurukkanpara and thereby he sustained serious injuries. He was taken to Jubilee Mission Hospital, Thrissur and was treated there as inpatient for 8 days. Alleging that the accident was occurred due to the rash and negligent driving of the lorry and claiming a total sum of Rs.1,04,000/- as compensation, the above Original Petition was filed before the Tribunal.

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The parties to this appeal will hereinafter be referred to as the petitioner and the respondents in accordance with their status before the Tribunal. The driver, owner and the insurer of the lorry were arrayed as respondents 1 to 3 in the Original

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MACA No.312 of 2013

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-:3:-

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Petition. Respondents 1 and 2 though served with notice from the Tribunal, did not turn up to contest the Original Petition and accordingly declared as ex parte.

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The 3^rd respondent had filed written statement admitting insurance coverage for the lorry at the relevant time of accident, but contended that the accident was occurred not due to the rash and negligent driving of the lorry by the 2^nd respondent and that the amount claimed as compensation is excessive.

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Before the Tribunal oral evidence was not adduced by both sides. Exts.A1 to A9 were marked on the side of the petitioner. Respondents did not adduce any evidence. On appreciation of the above evidence, the Tribunal arrived at a finding that the 2^nd respondent, the driver of the lorry was rash and negligent and responsible for causing the accident. The Tribunal has also found that the petitioner in view of the injuries sustained by him, is entitled to get compensation from the respondents. It fixed Rs.48,800/- as the sum payable as compensation and directed the 3^rd respondent/insurer to deposit the sum with interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisation.

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MACA No.312 of 2013

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-:4:-

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Aggrieved by the quantum arrived at by the Tribunal in the impugned award, this Court is approached in the appeal on hand seeking for enhancement. The learned counsel for the appellant has pointed out that the monthly income of the petitioner was fixed notionally as Rs.2,500/- and the same when viewed in the light of the fixation of monthly income in Ramachandrappa vs. Royal Sundaram Alliance Insurance Co. Ltd. [(2011) 13 SCC 236], is disproportionate. The learned counsel has also pointed out that under the heads, transportation expenses, extra nourishment, damages to clothing, pain and suffering and loss of amenities and enjoyments in life also the Tribunal had awarded only inadequate sums as compensation and canvased for interference and enhancement. The learned counsel also sought for interference with the sum awarded as compensation under the head disability. It is contended by the learned counsel that the petitioner has marked a certificate assessing his disability as 5% in evidence as Ext.A9. According to him, the Tribunal failed to consider the disability certified in Ext.A9 as such but confined its consideration to 2% and therefore is unjustified.

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MACA No.312 of 2013

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In the Original Petition the petitioner had raised a claim that he was earning Rs.4,000/- as monthly income at the relevant time of accident. Though claimed to be a workshop mechanic, he failed to mount the witness box to depose so. He also failed to produce any materials to establish his job and monthly income. He did not examine his employee. In the above circumstances that the Tribunal was constrained to fix Rs.2,500/notionally as the monthly income and arrived at the compensation payable on its basis. In Ramachandrappa supra, the Apex Court had taken Rs.4,500/- as the monthly income of a coolie worker who had met with a motor accident in the year 2004 and in the case of the petitioner who met with a motor accident and sustained injuries in the year 2012, this Court finds it reasonable to take Rs.4,500/-. The Tribunal has assessed loss of earning by taking two months’ period. It is revealed from the accident register-cum-wound certificate issued from Royal Hospital, Kunnamkulam and marked in evidence as Ext.A3 that the petitioner had sustained multiple abrasions and contusion on left side of his chest. In the X-ray of chest any bony injury was not detected. The discharge summary issued from Jubilee

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MACA No.312 of 2013

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-:6:-

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Mission Hospital, Thrissur and marked in evidence as Ext.A7 reports treatment of the petitioner as inpatient from 16.12.2004 till 23.12.2004, for frontal lobe contusion and right lateral orbital sinus fracture. He was treated by medication and was discharged with advice to review. Ext.A6 is the report of CT Scan of Brain and minimal blood density along the anterior falx cerebri and adjacent right frontal sulci, suggestive of subarachnoid haemorrhage and depressed fracture involving the right zygomatic arch at the mid portion were diagnosed. In the clinical co-relation followed, small foci of haemorrhagic contusion ruled out and depressed fracture involving the right zygomatic arch at the mid portion was confirmed.

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In the above circumstances, this Court finds it reasonable to consider three months as the period for which he suffered loss of income. When reassessed on the basis of the monthly income modified as Rs.4,500/- and taken for three months, the sum payable as compensation for loss of earning would come to Rs.13,500/-. Rs.5,000/- being the sum stands awarded by the Tribunal, the petitioner will get Rs.8,500/- as additional compensation under that head. Towards bystander and

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MACA No.312 of 2013

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-:7:-

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transportation expenses, the amounts stands awarded by the Tribunal as compensation appears to this Court reasonable and are not interfered with.

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Under the head extra nourishment, the Tribunal failed to award any sum as compensation. Considering the period of inpatient treatment and the nature of injuries and treatment procedures, this Court finds it appropriate to grant Rs.1,600/-, by taking Rs.200/- per day. Under the head damages to clothing, this Court is inclined to award Rs.500/- more. Under the head pain and suffering the compensation is enhanced to Rs.20,000/- and therefore the petitioner will get Rs.8,000/additionally. Rs.10,000/- granted by the Tribunal as compensation under the head loss of amenities and enjoyments in life, appears to this Court reasonable and therefore, declined to interfere with. Under the head disability, the compensation has to be reassessed on the basis of the monthly income fixed as Rs.4,500/- and the percentage of disability modified as 3%, the petitioner will get Rs.29,160/-. Rs.10,800/- being the sum stands awarded as compensation by the Tribunal, the petitioner will get Rs.18,360/- as additional compensation.

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MACA No.312 of 2013

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-:8:-

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In the reassessment as above, the total sum payable as compensation additionally is Rs.37,000/- (Rupees Thrityseven thousand only) and it would 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 3^rd respondent shall deposit the sum stands already awarded by the Tribunal by the impugned award (if not paid) and the additional compensation now arrived at in the appeal on hand, with interest at the rate of 7.5% per annum,

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from the date of filing of the Original Petition till realisation within a period of two months from the date on which a certified copy of this judgment is received by them.

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Sd/MARY JOSEPH,

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JUDGE.

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ttb

Prakasan v. Mohammed Razak

Case brief

What is this about?

What did the court decide?

Prakasan v. Mohammed Razak

Case brief

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What did the court decide?

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