Allowed

M.N.Sarath Chandran v. D.Madhu, Proprietor

Kerala HC8 Nov 2022MACA/699/2011

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an appeal against an award of the Motor Accidents Claims Tribunal, enhancing the compensation payable to an injured petitioner by recalculating monthly income and modifying amounts for loss of earnings, disability, medical expenses, and other heads of claim.

What did the court decide?

Compensation enhanced to Rs.10,96,361 with interest at 7.5% per annum from the date of filing of the original petition, liable to be deposited by the respondents within two months.

M.N.Sarath Chandran Vs D.Madhu, Proprietor — 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. 699 OF 2011

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AGAINST THE AWARD DATED 06.07.2010 IN OP(MV)NO.3084/2006 OF MOTOR
ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM

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APPELLANT/PETITIONER:

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M.N.SARATH CHANDRAN,
SON OF SRI.NARAYANAN NAIR,
MADATHIL HOUSE, EZHAKKARANADU P.O.,MANEED VILLAGE,
MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.

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BY ADVS.SRI.ANIL S.RAJ
 SMT.ANILA PETER
 SRI.G.ARUN GOPAN
 SMT.K.N.RAJANI

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RESPONDENTS/RESPONDENTS:

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1D.MADHU, PROPRIETOR,
M/S PADMA CARGOS TRANSPORT CONTRACTOR,
K.C.M.M.F. CATTLE FEEDS, MALAMPUZHA P.O., PALAKKAD,
PIN-678 651.

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2D.SANTHOSH, S/O.DIVAKARAN
KALAPPURAKKAL HOUSE, WEST OF KURUPPAMKULANGARA
L.P.SCHOOL, KURUPPAMKULANGARA P.O., CHERTHALA,
PIN-688 539

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3NATIONAL INSURANCE COMPANY LIMITED,
ERNAKULAM, D.O.AJAY VIHAR, KOCHI-682 016.

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R1 BY ADVS. SRI.P.ANIYAN

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 SMT.V.RENJU

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SMT.M.A.RAMITHA

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 SRI.VAKKOM N.VIJAYAN

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R3 BY ADV.SRI.LAL GEORGE, STANDING COUNSEL,

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NATIONAL INSURANCE COMPANY LIMITED

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
08.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A No.699 of 2011

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JUDGMENT

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Dated this the 8^th day of November, 2022

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This appeal is filed challenging an award passed by

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Motor Accidents Claims Tribunal, Ernakulam (for short ‘the Tribunal’) on 06.07.2010 in OP (MV) No.3084/2006.

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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. According to him he had met with a motor accident on 14.08.2006 when a lorry bearing Registration Number KL-9/ Q5385 dashed against the motor cycle bearing Registration Number KL-17/D 2983 ridden by him from north to south through Sea Port Air Port road. The accident was allegedly occurred due to the rash and negligent driving of the lorry by its driver. He had sustained serious injuries and was taken to Sun Rise Hospital, Kakkanad and after availing first aid treatment, he was shifted to Medical Trust Hospital,

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M.A.C.A No.699 of 2011

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Ernakulam. Treatment was also continued at Co-operative Medical College Hospital, Kalamassery. Ayurvedic treatment was also availed from two different hospitals. A sum of Rs.12,00,000/- was claimed as compensation from the owner, driver and insurer of the lorry, jointly and severally.

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The 2^nd respondent, the driver of the offending vehicle, though served with notice did not turn up to contest the original petition and therefore, declared ex parte. The 1^st respondent, the owner of the lorry filed written statement admitting insurance coverage for the vehicle with the 3^rd respondent. According to him the claimant was responsible for the accident and the compensation claimed under various heads are exorbitant in nature. The age, occupation and monthly income of the petitioner were also disputed.

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The 3^rd respondent in the written statement filed, admitted insurance coverage for the lorry bearing Registration Number KL-9 Q 5385 at the relevant time of accident. According to them, the original petition being filed in collusion with respondents 1 and 2, permission is required to contest the case with all defences under Section 170 of

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M.A.C.A No.699 of 2011

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the Motor Vechicles Act,1988 (for short ‘the M.V.Act’).

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Before the Tribunal proof affidavit was filed and

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Exts. A1 to A24 were marked in evidence. Permission was also granted to him to contest the original petition on all grounds available, by an order passed in the application filed by him under Section 170 M.V. Act.

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Based on the affidavit filed by the petitioner and the documentary evidence adduced by him the Tribunal found that the accident was occurred due to rash and negligent driving of the lorry by the 2^nd respondent. The Tribunal also found that the petitioner suffered injuries in the motor accident and was treated at different hospitals. The Tribunal has also found that the petitioner has sufffered permanent disability on account of the injuries sustained by him in the motor accident. Considering all the above aspects, Rs.10,20,878/- was arrived at as the total compensation payable and respondents 1 to 3 were directed to pay the said sum with interest at the rate of 8% per annum from the date of filing of the original petition (30.12.2006) till the date of realisation alongwith proportionate costs. Aggrieved by

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the quantum awarded, the petitioner is now before this Court in the appeal on hand, seeking for enhancement.

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Smt.Rajani K.N., the learned counsel for the petitioner has contended that Rs.4,574/- was fixed by the Tribunal notionally as the monthly income. According to her documents relevant for fixing the monthly income were produced by the petitioner and marked in evidence as Exts. A17 to A20. But the Tribunal failed to consider those while fixing the monthly income.

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The learned counsel has pointed out that Ext.A17 is a certificate issued by the Senior Manager, Human Resources of Geojit where the net pay drawn by the petitioner was certified as Rs.22,376/-. According to her the true copy of the Saral Form which acknowledges the filing of returns for the purpose of Income Tax in the assessment year relevant was also produced, where Rs.54,892/- was shown as petitioner’s annual income for the financial year 2006-2007. The annual income received from business was also shown as Rs.58,742.50/-. It was also pointed out by the learned counsel that the petitioner was working in a firm

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namely “Dhanam Financial Services”, and is obtaining profit therefrom. True copy of the partnership deed is marked in evidence as Ext.A20. According to the learned counsel, the Tribunal had fixed the monthly income on the basis of the annual salary shown in the Saral Form and failed to consider the monthly income earned by him from the partnership business for the purpose of computation of compensation. He has also pointed out that the petitioner/injured being aged 30 years at the relevant time of motor accident and permanent disability being suffered on account of the injuries sustained in the accident, 40% ought to have been added to the monthly income in consideration of future prospects. The learned counsel has also contended that the petitioner has turned a vegetable after the accident and despite observing so, the Tribunal had taken 63% as the percentage of disability. According to her when the Tribunal was convinced from watching him that he is like a vegetable, it ought to have taken 100% as his disability and to assess the compensation on its basis. The learned counsel has contended that the multiplier for the purpose of assessment

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of compensation was taken by the Tribunal as 17 and it being correct is only to be maintained.

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According to the learned counsel, medical bills worth Rs.1,04,509.25/- were produced by the petitioner to establish the expenses incurred by him for ayurvedic treatment and those are marked in evidence as Ext.A23. But the Tribunal failed to take that into account and to award compensation based on those. According to the learned counsel, the petitioner has two medical claims and his claim with Medi Assist India Pvt.Ltd, was settled for Rs.50,000/against his claim for Rs.53,550/-, due to limit of coverage under the policy issued in his favour. Petitioner’s claim with Good Health Plan Ltd. was settled for Rs.10,000/- against a claim for Rs.32,794/-. It is urged by the learned counsel that since the entire amount was not paid by the insurance company under the claims, Rs.3,550/- and Rs.22,794/respectively disallowed by them is reasonable to be considered by this Court and awarded as additional compensation.

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M.A.C.A No.699 of 2011

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It was contended that compensation awarded under loss of earnings, transportation expenses, extra nourishment, bystander expenses, damages to clothings, pain and sufferings and loss of amenities and enjoyments in life are also on the lower side and call for interference and re-fixation.

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The learned counsel for the 3^rd respondent has contended that the monthly income was fixed by the Tribunal correctly, since under the partnership business, it is unlikely for the petitioner to earn a stable income in every month. He also failed to prove the income earned by him from the partnership business months preceding the month in which the motor accident was occurred. The learned counsel for the 3^rd respondent has also submitted that 63% disability has been taken by the Tribunal correctly taking the average of the disability assessed by the Medical Board under various heads. According to him loss of earning has been considered by the Tribunal for one year and therefore interference is uncalled for. Grant of compensation under various other heads were also submitted by the learned

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M.A.C.A No.699 of 2011

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counsel for the 3^rd respondent as just and reasonable and canvassed for dismissal of the appeal.

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It is noticed from the wound certificate-cumdischarge certificate marked in evidence as Ext.A7 that the petitioner had sustained contusions on forehead and right arm, lacerated wound on the right elbow, fracture on the right leg and wounds and abrasions on his face. In the CT Scan taken of his brain, mid brain contusion on the right side, interpeduncular subarachnoid hemorrhage and Quadrigeminal cistern subarachnoid hemorrhage were diagnosed. In the X-ray taken of pelvis, fracture of left superior pubic ramus and in the X-ray taken of right leg, fracture of both bones were also detected. It is found from Ext.A8 that the petitioner was treated as inpatient for 2 days at Sunrise Hospital, Kakkanad and he was transported therefrom to Medical Trust Hospital, Ernakulam. Ext.A9 is the discharge summary issued from Medical Trust Hospital, Ernakulam and it reports inpatient treatment of the petitioner there from 16.08.2006 till 30.10.2006. The petitioner was treated conservatively with antibiotics,

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analgesics, AEDs, antiedema measures, cerebro protective measures and neurotropic agents. Tracheostomy was done for tracheo bronchial toileting followed by Percutaneous endoscopic gastrostomy. At the time of discharge, he was made to sit on folleys and PEG feed, E4 M5 V2 Pupils (R) 2 + (L) 5- (L) 3^rd nerve palsy was diagnosed. At the time of discharge wounds were reported as clean and in healing state and he was advised to continue medication for two weeks and to review in Neuro Surgery, Orthopedics and Plastic Surgery OP. Ext.A10 is the 2^nd discharge summary issued from Medical Trust Hospital, Ernakulam and it reports inpatient treatment from 21.01.2007 till 31.01.2007. He was admitted for the 2^nd time at the hospital for delayed union of right tibia. He was treated with wound debridement, external fixator on right leg and skin grafting by plastic surgeon. External fixator was removed and AK cast was fixed on 05.10.2006. He had slurred speech. In X- ray of right leg AP/Lateral recurvatum (+) 15⁰ angulation was found. Deficit callus was also noted in anterior cortex. Accordingly bone grafting of right tibia was done on

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22.01.2007. At the time of discharge, he was advised to continue medication for 6 weeks and to review thereafter in OP Department. Ext.A11 is a certificate issued by the Ophthalmologist on 11.08.2008. The Ophthalmologist has reported about lesion involving both visual pathways and accordingly directed to correlate clinically. Ext.A12 is a certificate issued from Aditya Eye Hospital wherein the vision in both eyes were certified as affected on account of the injury sustained in the accident. Ext.A13 is the discharge card issued from Sowparnika Ayur Nikethan, Thrissur where the petitioner was admitted on 13.07.2009 and discharged on 23.07.2009. Ext.A14 is another discharge card issued from the very same hospital which reports inpatient treatment of the petitioner there from 30.09.2009 till 12.10.2009. Ext.A15 is a letter issued from Medical Insurance Company (Medi Assist) wherein the petitioner had mediclaim stating that medical bills for Rs.3,550/- have been returned for the claim raised being excessive than the coverage under the policy stands issued. Ext.A16 is also a letter issued from Good Health Plan Ltd. wherein the

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M.A.C.A No.699 of 2011

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mediclaim was taken by the petitioner stating that medical bills, for Rs.22,794/- has been returned, for that amount being excessive of the claim for which mediclaim policy was issued.

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The basic pay of the petitioner was certifed in Ext.A17 as Rs.3,163/-. Other allowances granted to the petitioner were also shown in Ext.A17. Apart from the above, Rs.8,000/- was shown as performance Award. The performance Award is likely to vary. The salary given to the petitioner in the month of July, 2005 which is much earlier to the month in which he met with the motor accident alone is certified in Ext.A17. The certificate with reference to the salary earned by the petitioner in the month immediately preceeding the one in which the motor accident was occurred is not produced. The Saral Form which acknowledges the filing of income tax Return for the assessment year 2006-2007 is produced and marked in evidence as Ext.A18 where Rs.54,892/- was shown as income from salary and Rs.58,742.50/- as income from business. Ext.A20 is a deed of partnership related to

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M.A.C.A No.699 of 2011

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‘Dhanam Financial Services’. Ext.A19 is a certificate issued from Dhanam Financial Services which shows that the petitioner was paid Rs.5,000/- as partner’s monthly salary for the financial year 2005-2006. It is shown under Serial No.12 of Ext.A20, the partnership deed that the petitioner as the managing partner of the firm has the power to negotiate, transact and do other activities of the firm which are necessary for the day-to-day functioning of the firm. It has been stated in Sl.No.7 of Ext.A20, that the 1^st and 3^rd partners were incorporated as working partners, entitled for a fixed minimum remuneration of Rs.5,000/- per month. In the above circumstances, this Court is inclined to fix the monthly salary by dividing the annual income from salary certified in Ext.A18 by 12. The monthly income when assessed on the basis of Ext.A18 will be Rs.4,574/-. This Court is inclined to add 40% to the monthly income in consideration of future prospects. 40% of the monthly income being Rs.1829/- the monthly income liable to be fixed is Rs.6,403/-. Since it stands established from Ext.A19 that the petitioner was getting a fixed remuneration of

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Rs.5,000/- monthly this Court is inclined to add that also to the monthly income for the purpose of assessment of compensation for disability. Thus, Rs.11,403/- is arrived at and therefore the multiplicand liable to be considered is 1,36,836/- (Rs.11,403x12). When the above multiplicand is multiplied with the multiplier 17, and 63% as the percentage of disability, Rs.14,65,513/- (Rs.1,36,836x17x63/100) is arrived at as payable additionally. Rs.5,87,893/- being the sum already awarded by the Tribunal, the petitioner will get Rs.8,77,620/- as compensation. The Tribunal had taken 12 months’ period for the purpose of computation of compensation for loss of earning. This Court is inclined to maintain the period taken by the Tribunal and to reassess the compensation payable on the basis of the modified monthly income of Rs.9,574/- (Rs.4,574/-+Rs.5,000/-) and therefore, the petitioner will get Rs.1,14,888/- as compensation. Rs.55,000/- being the sum stands awarded by the Tribunal, the petitioner will get Rs.59,888/- as additional compensation under the head loss of earning.

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M.A.C.A No.699 of 2011

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Under the head bystander expenses, the Tribunal

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has awarded Rs.10,000/- and it being low, this Court is inclined to enhance it to Rs.15,000/- and thus the petitioner will get Rs.5,000/- as additional compensation. Under the head medical expenses the Tribunal has discarded the bills for Ayurvedic Treatment which would come to Rs.1,04,509.25/-(Ext.A23 series). The nature of injuries sustained also justify availing of ayurvedic treatment and therefore, Rs.1,04,509/- covered by the medical bills marked in evidence as Ext.A23 series is also awarded as compensation for treatment expenses. Under the head damages to clothing the amount stands awarded being Rs.500/-, this Court is inclined to award Rs.500/- more. Under the head pain and sufferings the compensation awarded by the Tribunal being disproportionate to the nature of injuries suffered and the treatment procedures undergone, this Court is inclined to modify it to Rs.50,000/so that Rs.20,000/- is payable as additional compensation under that head. Towards loss of amenities and enjoyments in life the sum stands awarded being Rs.50,000/-, this

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Court finds no reason to interfere with. Under the head extra nourishment, the Tribunal has awarded Rs.7,500/and this Court is inclined to enhance it to Rs.10,000/-. So that, Rs.2,500/-will be payable as additional compensation under that head. Claim for Rs.3,550/- and Rs.22,794/stands rejected by the insurer of mediclaims, were also considered and added towards treatment expenses additionally payable.

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In the above manner of re-assessment the petitioner will get Rs.10,96,361/- (Rupees Ten Lakhs Nintey Six Thousand Three Hundred and Sixty one only). The amount would carry interest at the rate of 7.5% per annum from the date on which the original petition is filed till the date of realisation. The appeal having been filed with a delay of 96 days, the 3^rd respondent is exonerated from liability to pay interest fixed for the sum, for that period as per the order of this Court dated 07.10.2021. The 3^rd respondent shall deposit the above amount and also the original amount stands awarded by the Tribunal with interest (if not paid) within a period of two months from the

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date of receipt of a certified copy of this judgment.

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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

M.N.Sarath Chandran v. D.Madhu, Proprietor

Case brief

What is this about?

What did the court decide?

M.N.Sarath Chandran v. D.Madhu, Proprietor

Case brief

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What did the court decide?

What the court decided

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