Allowed

Gouhar, W/O.Fasalu Rahman v. Vibin v., S/O.Ravindran

Kerala HC15 Dec 2022MACA/3133/2014

Case brief

AI extract

What is this about?

The High Court enhanced compensation awarded by the Motor Accidents Claims Tribunal for a rider injured in a motor accident. The Court corrected the monthly income assessment, awarded compensation for loss of earning due to established disability, and adjusted other compensatory heads including pain and suffering and loss of amenities, increasing the total award significantly and fixing interest.

What did the court decide?

Compensation enhanced to ₹1,46,880 with interest at 7.5% per annum; award allowed accordingly.

Gouhar, W/O.Fasalu Rahman Vs Vibin v., S/O.Ravindran — 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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THURSDAY, THE 15TH DAY OF DECEMBER 2022 / 24TH AGRAHAYANA, 1944

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MACA NO. 3133 OF 2014

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AGAINST THE AWARD DATED 17.09.2011 IN O.P(M.V) NO.570/2010 OF THE
PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE

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APPELLANT/PETITIONER:

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GOUHAR, W/O.FASALU RAHMAN
AGED 58 YEARS
W/O.FASALU RAHMAN, RESIDING AT MEENAKSHIPURAM HOUSE,
P.O.KARAPARAMBU, KOZHIKODE - 673 010.

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BY ADV SRI.V.S.CHANDRASEKHARAN

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RESPONDENTS/RESPONDENTS:

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1VIBIN V., S/O.RAVINDRAN, AGE NOT KNOWN,
RESIDING AT SOUPARNIKA, POOLAKKAL PARAMBA P.O.,
MARIKKUNNU, KOZHIKODE - 673 012.
2RELIANCE GENERAL INSURANCE COMPANY LIMITED
2ND FLOOR, CITADEL ARCADE, OPP.TAGORE CENTENARY HALL,
RC ROAD, KOZHIKODE - 673 509.
BY ADVS.
R2 BY SRI.K.B.RAMANAND

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 15.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.No 3133 of 2014

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JUDGMENT

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Dated this the 15^th day of December, 2022

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The appeal on hand is filed challenging an award

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passed by Motor Accidents Claims Tribunal, Kozhikode (for short ‘the Tribunal’) on 17.09.2011 in O.P (M.V) No.570/2010. The appellant is the

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petitioner before the Tribunal.

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For the sake of convenience, the parties to

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this appeal will hereinafter be referred to as the

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petitioner and respondents 1 to 3 in accordance with their status in the Original Petition.

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The above Original Petition was filed by the petitioner seeking for a sum of `3,00,000/- as compensation. As per the averments in the Original Petition, the petitioner was hit by a Motorcycle

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bearing Registration No.KL-11-Z-7507 at

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M.A.C.A.No 3133 of 2014

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Karikkamkulam and sustained serious injuries. She was transported to District Co-operative Hospital for treatment. She was shifted therefrom to MIMS Hospital, Kozhikode for better medical management. Raising an allegation that the motor accident was occurred due to the rash and negligent riding of the Motorcycle bearing Registration No.KL-11-Z-7507 by its rider and claiming a sum of `3,00,000/- as compensation, the above Original Petition was filed.

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The owner, the rider, and the insurer of the Motorcycle were arrayed as respondents 1 to 3 in the Original Petition. Respondents 1 and 2 filed written statement denying the entire averments made by the petitioner in the Original Petition. It was contended that the motor accident was occurred not due to negligence of the 2^nd respondent but due to

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careless and negligent crossing of the road by the

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M.A.C.A.No 3133 of 2014

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petitioner. The 3^rd respondent had also filed written statement admitting issuance of a valid policy for the Motorcycle bearing Registration No.KL-11-Z-7507 covering the date of accident. The rider of the Motorcycle was contended as not negligent. Compensation claimed is also disputed.

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Before the Tribunal, evidence adduced by the petitioner consists of Exts.A1 to A9 and Ext.C1. The Tribunal found on it's appreciation of the above evidence that the motor accident alleged was occurred due to rash and negligent riding of the Motorcycle by the 2^nd respondent. On being convinced from the evidence that the petitioner had sustained injuries in the motor accident, the Tribunal found the petitioner entitled to get compensation from the respondents. `93,355/- was arrived at as the compensation payable and directed the 3^rd

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M.A.C.A.No 3133 of 2014

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respondent to pay it with interest at the rate of 7%

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per annum and proportionate costs, within 30 days from the date of passing of the award.

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It is contended by

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Shri.V.S.Chandrasekharan, the learned counsel for the petitioner that the Tribunal took only `3,500/-

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as the monthly income for the purpose of computation of compensation. According to him, the accident being occurred in the year 2009, the Tribunal is unjustified in fixing the monthly income as above. The learned counsel has also pointed out that the Tribunal failed to award compensation towards loss of earning and therefore, is unjustified. According to him, the Tribunal also failed to award just and reasonable compensation also under other heads. The learned counsel seeks for enhancement of the compensation.

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M.A.C.A.No 3133 of 2014

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The learned counsel for the 3^rd respondent

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contended on the contrary that just and reasonable compensation was awarded by the Tribunal and therefore, interference with the calculation is not warranted. The learned counsel has also invited this Court's attention to certain medical documents marked in evidence and contended that those being totally unrelated to the injuries sustained in the motor accident and the treatment availed for that are only to be discarded.

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It is found that the Tribunal had fixed 2,000/- as the monthly income notionally. The Tribunal was constrained to do so for failure of the petitioner to adduce any evidence in that regard. The petitioner claimed to be a Tailor by profession and earning 8,500/- monthly. The monthly income fixed being related to the year 2009, is too low and

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M.A.C.A.No 3133 of 2014

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therefore, is re-fixed as `7,000/-.

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The Tribunal failed to award any sum as compensation towards loss of earning. As per medical documents available in evidence petitioner sustained comminuted supra condylar fracture of left femur and fracture of both bones of lower 1/3^rd right tibia and fibula. She was treated as inpatient from 07.11.2009 till 20.11.2009 and from 22.02.2010 till 25.02.2010. She had also undergone interlocking nailing for fracture of femur and plate and screw fixation for fracture of right tibia and fibula. The interlocking nailing was found removed. Though these aspects stood proved before the Tribunal, it failed to award compensation towards loss of earning. On account of the injuries sustained in the motor accident and the treatment undergone,

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the petitioner must have been unable to attend his

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M.A.C.A.No 3133 of 2014

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work as a Tailor for a prolonged period. It is reasonable in the context to consider ten months and thus 70,000/- (7,000/- x 10) is arrived at.

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The Tribunal has awarded 1,000/- and 900/- respectively as compensation towards extra nourishment and bystanders expenses. When viewed in the light of the injuries sustained and the duration of treatment, the sums stood awarded as above, are found disproportionate. In the above circumstances, this Court finds it reasonable to grant 4,000/- and 5,100/- more under the respective heads and does so.

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As compensation towards damages to clothing, 500/- more is awarded. As compensation towards pain and suffering, this Court enhances the compensation to 50,000/- and therefore, petitioner will get `32,000/- as additional compensation. As

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M.A.C.A.No 3133 of 2014

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compensation towards loss of amenities and enjoyments in life, this Court enhances the compensation to 30,000/- and therefore, the petitioner will get 24,000/- as additional compensation.

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Medical Board examined the petitioner and assessed his disability as 2%. 8 was adopted by the Tribunal as the multiplier. It being incorrect is substituted by 9, the correct one. In the reassessment of compensation for disability with the above factors, 15,120/- (7,000/- x 12 x 9 x 2/100) is arrived at. 3,840/- the sum stood awarded by the Tribunal when adjusted against the sum now arrived at, petitioner will get 11,280/- as additional compensation.

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In the above manner of reassessment, the petitioner will get `1,46,880/- (Rupees One Lakh

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M.A.C.A.No 3133 of 2014

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Forty Six Thousand Eight Hundred and Eighty only) (70,000/- + 4,000/- + 5,100/- + 500/- + 32,000/- + 24,000/- + `11,280/-) as additional compensation. The said amount 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 excluding 995 days, being the period of delay occurred in filing the appeal on hand. The 3^rd respondent being the insurer shall pay the above sum with interest fixed as above within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the directions 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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MARY JOSEPH

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NAB

Gouhar, W/O.Fasalu Rahman v. Vibin v., S/O.Ravindran

Case brief

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Gouhar, W/O.Fasalu Rahman v. Vibin v., S/O.Ravindran

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What did the court decide?

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