Allowed

Manoj v. Sudheer and Others

Kerala HC13 Oct 2022MACA/750/2010

Case brief

AI extract

What is this about?

The High Court allowed the appellant's appeal against the Motor Accidents Claims Tribunal award. The Court found the Tribunal's compensation inadequate and substituted the monthly income from Rs.2,000 to Rs.4,500, enhancing compensation under heads of loss of earnings, treatment, permanent disability, pain and sufferings, and adding amounts for bystander and extra nourishment expenses.

What did the court decide?

Award of additional compensation of Rs.3,70,800/- along with interest and modification of existing compensation components.

Manoj Vs Sudheer and Others — Execution and Attachment | 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 13TH DAY OF OCTOBER 2022 / 21ST ASWINA, 1944

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MACA NO. 750 OF 2010

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AGAINST THE AWARD DATED 14.07.2009 IN OP(MV) NO.1103/2004 OF MOTOR

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ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR

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APPELLANT/PETITIONER:

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MANOJ,

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S/O.RAGHAVAN PILLAI,
ILLATHUPARAMBIL HOUSE, KAITHARAM KARA,,
KOTTUVALLY VILLAGE.

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BY ADVS.SRI.PHILIP T.VARGHESE
 SMT.ACHU SUBHA ABRAHAM
 SRI.JOSE MATHEW MELETH
 SRI.THOMAS T.VARGHESE

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RESPONDENTS/RESPONDENTS:

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1SUDHEER,
S/O.RAMAKRISHNAN,
PADASSERY HOUSE, WEST OF CHERAMAN THEATER,
ERIYAD KARA, ERIYAD VILLAGE.
2LAKSHMANAN, S/O.KARAPPAN,
VALIYAPARAMBIL HOUSE, KOOLIMATTOM,
KODUNGALLOOR P.O.
3THE BRANCH MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
BRANCH OFFICE, MUNICIPAL BUILDING,
MAIN ROAD, NORTH PARAVUR.

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R3 BY ADVS.SRI.P.JACOB MATHEW
 SRI.MATHEWS JACOB SR.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
13.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.No.750 of 2010

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JUDGMENT

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Dated this the 13th day of October, 2022

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This appeal is filed challenging an Award passed by Motor Accidents Claims Tribunal, North Paravur (for short ‘the Tribunal’) on 14.07.2009 in O.P.(M.V) No.1103/2004.

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The challenge was made by the appellant against the award passed by the Tribunal mainly for the reasons that the compensation stands awarded is inadequate and unjust. On 04.06.2004 he was travelling in a motorcycle bearing Registration No.KL-7/Y 1835 along Vypin-Munambam road and

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a service bus bearing Registration No.KL-8/U 2027 hit on his motorcycle near Sankara Narayana Temple, Nayarambalam,

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and thereby he sustained serious injuries. The accident was occurred due to the rash and negligent driving of the bus by it’s driver. A crime was registered by the police against the driver of the bus for the offences punishable under Sections 279 and 338 of the Indian Penal Code (for short ‘the I.P.C.’). Alleging that the driver of the bus has caused the accident by his rash and negligent driving and he is entitled to get a sum of

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M.A.C.A.No.750 of 2010

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Rs.15,00,000/- as compensation, the Original Petition was filed before the Tribunal.

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The parties to this appeal will hereinafter referred to as the petitioner and respondents 1 to 3.

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The driver, owner and insurer of the bus aforesaid were arrayed as respondents 1 to 3 in the Original Petition. Respondents 1 and 2 though served with notice, did not turn up to contest the Original Petition and thus, declared exparte. The 3^rd respondent has filed written statement admitting insurance coverage for the offending bus as on date of accident. It was contended that the 1^st respondent was not driving the bus in a rash and negligent manner and was not responsible for the accident. The petitioner was riding the motorcycle in a careless and negligent manner and accordingly the accident was occurred. The 1^st respondent was not holding

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a valid driving licence to drive it at the relevant time of the accident and therefore, by permitting the driver who was not holding a valid driving licence to drive the bus, the insured has violated the conditions of the policy and therfore entitled to have recovery of the amount arrived at as compensation after

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M.A.C.A.No.750 of 2010

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depositing it in favour of the appellant. Compensation claimed is also disputed for being exorbitant.

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Before the Tribunal, the petitioner had adduced oral evidence as PW1 and examined the doctor who has issued certificate of disability, as PW2. Exts.A1 to A9 were also marked. On the side of respondent No.3 neither any oral nor documentary evidence was adduced. After appreciating the evidence on record, the Tribunal found that the petitioner is entitled to get compensation from the respondents and the liability for the accident was fixed on the driver of the bus who was arrayed as the 1^st respondent in the Original Petition seeking compensation. The Tribunal has arrvied at a sum of Rs.5,07,934/- as the total compensation payable to the petitioner. It also directed the 3^rd respondent to deposit the same with interest at the rate of 7% per annum from the date of the Original Petition till the date of realisation. The quantum alone is under challenge by the petitioner for the reason that it is meagre.

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Sri.Philip T Varghese, the learned counsel for the appellant has contended that the monthly income of the injured

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M.A.C.A.No.750 of 2010

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was fixed by the Tribunal notionally as Rs.2,000/- and it is too low when compared to the fixation of Rs.4,500/- by the Apex Court in the case of a coolie worker in the year 2004 in Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co.Ltd. [(2011) 13 SCC 236] . According to him Rs.4,500/- is a reasonable sum to be fixed as monthly income. According to him the Tribunal failed to award compensation under the heads extra nourishment and bystander expenses. According to him the petitioner had sustained grave injuries in the motor accident and was treated as inpatient for 49 days. The grievance of the learned counsel was that the Tribunal overlooked those aspects and thereby denied compensation under the above heads. It is contended by the learned counsel that sums awarded as compensation under the heads loss of earning and disability were also on the lower side since calculated on the basis of monthly income taken as Rs.2,000/-. The learned counsel has also pointed out that under the head pain and sufferings and loss of amenities and enjoyments in life also the Tribunal has awarded inadequate compensation and interference is warranted to make it just and reasonable. The

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M.A.C.A.No.750 of 2010

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learned counsel for the petitioner has also contended that the earning capacity of the petitioner has been lost fully in view of the injuries sustained in the motor accident and therefore, 100% ought to have been taken by the Tribunal in consideration of his permanent disability and compensation, calculated on it’s basis.

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The learned counsel for the 3^rd respondent has contended that just and reasonable sums have been awarded as compensation by the Tribunal under various heads and interference is totally uncalled for.

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The medical documents describing the kind of injuries sustained and the treatment availed by the petitioner were marked in evidence as Exts. A3, A4, A5, A6 and A7. The photographs of the petitioner taken after the accident was also produced and marked in evidence as Ext.A8. Ext.A9 series of medical bills were also produced and those would disclose that a sum of Rs. 2,03,534/- was spent towards treatment.

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Exts. A3 is the wound certificate-cum-discharge certificate issued from Medical Trust Hospital, Ernakulam which reports that the petitioner had sustained a lacerated wound on

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M.A.C.A.No.750 of 2010

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his right forehead, block on right eye, abrasions on the right cheek, left cheek and left forehead, bleeding from mouth and nose, compound fracture of shaft of right femur, and broken right upper central incisor. Fracture of lower end of radius and right frontal extradural haematoma in the Brain, contusion on left internal capsule, Sub Arachnoid Hemorrhage, diffuse cerebral edema, linear undisplaced fracture of roof of orbit on the right and fracture of shaft of right femur were diagnosed in various medical investigations held at the hospital.

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It is revealed from Ext.A3 that he was treated as inpatient at the hospital from 04.06.2004 till 10.07.2004. Ext.A4 is the discharge summary issued from Medical Trust Hospital, Ernakulam. Severe head injury was diagnosed as caused to the petitioner in the motor accident. Emergency right frontal craniectomy and EDH evacuation were done on 04.06.2004. Postoperatively the petitioner was paralysed and therefore, ventilated for 48 hours. He gradually showed recovery neurologically and the ventillatory support was weaned off. Sutures were removed on the 10^th post operative day. Thereafter he was advised to continue antibiotics,

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M.A.C.A.No.750 of 2010

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analgesics, AED’s, antioedema measures and other brain protective agents. At the time of discharge, he was fully conscious, oriented and was also taking oral feeds. There was right UMN facial palsy and Bowel/bladder continence. He was advised at the time of discharge to continue medicines prescribed for one month and to review at the hospital.

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Ext.A5 is the discharge summary issued from the Orthopedic Department of the very same hospital where Type I open fracture of Right Femur was diagnosed. Wound debridement and upper tibial skeletal traction were done as part of treatment. IMIL nailing of right Femur was done with INOR nail of 11x420 mm. Fracture of distal end radius (R) was treated with BE POP cast application. At the time of discharge all wounds were reported healed and suture was also removed. He was advised to review after four weeks with a fresh X-ray of (R) femur.

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In Ext.A6 issued on 18.07.2007, Septic Arthritis of (L) Knee was suspected and he was advised to take rest for two weeks. Ext.A9 series show that a sum of Rs.2,03,534/- was spent for treatment.

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M.A.C.A.No.750 of 2010

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13. When viewed in the light of the above aspects, this

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Court finds that compensation awarded by the Tribunal under various heads is on the lower side. The monthly income taken as Rs.2,000/- is also on the lower side and this Court is inclined to substitute it by Rs.4,500/-, in consideration of the monthly income taken by the Apex Court in Ramachandrappa supra. The Tribunal has considered loss of earnings for 8 months. This Court is inclined to enhance the period to 10 months. When calculated on the basis of the monthly income fixed as Rs.4,500/- and the period as 10 months, the sum payable as compensation under the head loss of earnings would be Rs.45,000/-. Rs.16,000/- already awarded by the Tribunal when deducted, the compensation payable additionally under the head would come to Rs.29,000/-. The Tribunal has awarded compensation together under the head treatment expenses and transportation expenses. As already pointed out, a sum of Rs.2,03,534/- has been spent by the petitioner towards treatment and therefore, this Court is inclined to split the compensation awarded under the head treatment expenses and transportation expenses. Rs.2,03,534/- is awarded for

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M.A.C.A.No.750 of 2010

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treatment expenses and Rs.7,000/- for transportation expenses. Rs.3,000/- already awarded by the Tribunal for transportation expenses when deducted, Rs.4,000/- would be payable in addition under the said head. Under the head bystander expenses, the Tribunal failed to award any compensation, despite noticing that the petitioner had inpatient treatment for 49 days. Therefore, this Court is inclined to award Rs.9,800/- towards bystander expenses by taking Rs.200/- per day, for 49 days. Under the head extra nourishment, the Tribunal failed to award any compensation and this Court is inclined to award Rs.5,000/-. Towards pain and sufferings and towards loss of amenities and enjoyments in life, the Tribunal awarded Rs.35,000/- and Rs.20,000/respectively. This Court is inclined to modify those to Rs.50,000/- and Rs.40,000/- respectively. Therefore, the petitioner would get Rs.15,000/- and Rs.20,000/- as additional compensation. Under the head permanent disability, the Tribunal has awarded Rs.2,30,400/-. This Court is inclined to modify the same by recalculating the compensation, on the basis of the monthly income refixed as Rs.4,500/- and the

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M.A.C.A.No.750 of 2010

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other factors maintained, the compensation payable under the head disability would be Rs.5,18,400/-. The Tribunal has awarded Rs.2,30,400/- and when that amount is deducted, the compensation payable additionally would come to Rs. 2,88,000/-. Thus, in the reassessment Rs.3,70,800/- is payable as additional compensation.

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Needless to say the amount now arrived at additionally would carry interest at the rate of 7.5% per annum from the date of the Original Petition till the date of realisation. The 3^rd respondent shall pay the sum originally awarded with interest at the rate specified in the original award (if not already paid) and the sum now found additionally payable, with interest at the rate of 7.5% per annum from the date of the Original Petition till the date of realisation within a period of two months from the date on which a copy of the judgment is received there.

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MACA stands allowed accordingly.

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Sd/-

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JUDGE

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MJL

Manoj v. Sudheer and Others

Case brief

What is this about?

What did the court decide?

Manoj v. Sudheer and Others

Case brief

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What did the court decide?

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