Allowed

Surendran v. Anilkumar

Kerala HC18 Oct 2022MACA/872/2013

Case brief

AI extract

What is this about?

The High Court set aside the Motor Accidents Claims Tribunal award in an appeal filed with delay, rejecting respondent insurance pleas. The Court enhanced the compensation to Rs.6,10,320/- by reworking monthly income calculations and adjusting heads like pain and suffering under minor procedural omission.

What did the court decide?

Compensation enhanced to Rs.6,10,320/- with interest at 7.5% per annum from original petition date subject to exemption for respondent on delay period.

Surendran Vs Anilkumar — 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 18TH DAY OF OCTOBER 2022 / 26TH ASWINA, 1944

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MACA NO. 872 OF 2013

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AGAINST THE AWARD DATED 25.09.2012 IN O.P(M.V) NO.1341/2006 OF

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MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA

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APPELLANT [PETITIONER IN O.P(M.V)]:-

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SURENDRAN
S/O.BALAN PILLAI, AGED 48 YEARS,
MANNADIKIZHKKUNADUVILE KADAMPANADU VILLAGE, ADOOR

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BY ADVS.SRI.ARUN.B.VARGHESE
 SRI.K.REEHA KHADER

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RESPONDENTS[RESPONDENTS IN O.P(M.V)]:-

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*1 ANILKUMAR

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NAMPURAZHIKATHU VAKKETHIL MANNADY P.O.,
KADAMPANADU 691552. [DELETED]

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*[RESPONDENT NO.1 IS DELETED FROM THE PARTY ARRAY AS
PER ORDER DATED 08/03/2017 IN I.A.NO.829/17 IN
M.A.C.A.872/2013.]

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2 GOPALAKRISHNAN , GANESH BHAVANAM, THULAMPARAMBU NORTH, HARIPAD 690 514

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3THE DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY LIMITED,
THIRUVANANTHAPURAM-695 001.

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R3 BY ADVS.SRI.R.AJITH KUMAR (128/84)

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 SRI.P.JAYASANKAR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 18.10.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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M.A.C.A.No.872 of 2013

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JUDGMENT

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Dated this the 18^th day of October, 2022

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This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Pathanamthitta (for short 'the Tribunal') on 25.09.2012 in O.P(M.V.) No.1341/2006. The appellant is the petitioner before the Tribunal. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and the respondents in accordance with their status in the aforementioned Original Petition.

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The petitioner met with a motor accident at about 4 pm on 23.04.2006 at Alimukku junction in Enathu-Mannady public road. A Motorcycle bearing Registration No. KL-04/U189 dashed the scooter ridden by him and thereby he sustained serious injuries. He was treated at Kerala Institute of Medical Sciences, Thiruvananthapuram as inpatient for 9 days. C4-C6 Cord Contusion was diagnosed. Sensations were diminished below C7 level bilaterally. MRI Scan of cervical spine showed

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M.A.C.A.No.872 of 2013

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disc bulges at C4-C5 and C5-C6 with indentation of the thecal sac and narrowing of right C6 root canal. There was evidence of cord contusion from C4-C6 with prevertebral haematoma at C4-C5. He had undergone surgery and other conservative medical managements. He showed improvement in motor power but, developed paraesthesia below the chest. At the time of discharge, he had 4/5 in the triceps and 3/5 spastic paraparesis. He was aged 42 years at the time of the accident. He was a rubber dealer earning Rs.14,000/- monthly. Alleging that the injuries were sustained by him in a motor accident involving a Motorcycle bearing Registration No. KL-04/U-189, due to the rash and negligent riding of its rider and claiming a sum of Rs.8,00,000/- as compensation, the Original Petition was filed by the injured.

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The rider, owner and insurer of the Motorcycle were arrayed as respondents 1 to 3 in Original Petition. Notice was served on 1^st and 2^nd respondents but for their failure to appear, were declared ex parte. The 3^rd respondent had filed written statement admitting valid policy for the Motorcycle covering the

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M.A.C.A.No.872 of 2013

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date of the motor accident. It was contended that the accident was occurred due to the rash and negligent riding of the scooter by the petitioner himself, that the 1^st respondent who was riding the Motorcycle was not holding a valid driving licence at the time of the accident and that the amount claimed as compensation is excessive.

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Before the Tribunal the petitioner had adduced evidence as Exts.A1 to A13 and Ext.C1. Evidence of any nature was not adduced by the 3^rd respondent. The Tribunal on the basis of the evidence, found negligence on the side of the rider of the Motorcycle who was the 1^st respondent in the claim petition. The Tribunal has also found that the petitioner in view of the injuries sustained in the motor accident is entitled to get compensation and fixed a sum of Rs.5,64,390/- as the compensation payable. Contending that the compensation arrived at is inadequate and therefore, unjust and unreasonable, the appeal on hand is filed by the petitioner.

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Sri.Arun B Varghese, the learned counsel for the petitioner has contended that the monthly income was fixed by

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the Tribunal notionally as Rs.3,000/- and it is too meagre. According to him, the petitioner had pleaded in the Original Petition as a rubber dealer having Rs.14,000/- as his monthly income. He had not mounted the witness box to depose about his job and monthly income but had produced true copies of the Special Licence issued to a rubber dealer and Certificate of Registration issued from Commercial Tax Department to substantiate his pleading about his job as a rubber dealer and got those marked in evidence as Exts.A11 and Ext.A12 respectively. Documents being photocopies, the Tribunal discarded those and thus the monthly income stands disproved. In the above circumstances that the Tribunal fixed the monthly income of the petitioner notionally as Rs.3,000/- and arrived at the compensation on its basis.

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The accident in the case on hand was occurred in the year 2006. The Apex Court had fixed the monthly income of a coolie worker who got injured in a motor accident in the year 2004 as Rs.4,500/- and therefore, it appears just and reasonable to take Rs.5,500/- which is a sum proportionate to the year of accident.

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M.A.C.A.No.872 of 2013

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The learned counsel for the petitioner has relied on Pappu Deo Yadav v. Naresh Kumar and Others [2020 KHC 6547 (SC)] to contend that in the case of a typist/data entry operator who had lost both upper limbs, the Apex Court had added 40% of the monthly income fixed, towards future prospects to arrive at the compensation payable. The learned counsel canvassed for adoption of that criteria in the case on hand also whose both upper limbs have been paralysed partially and lower limbs, totally.

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The learned counsel for the 3^rd respondent has contended that in view of the dictum in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]

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the appellant being aged 42 years, 25% of addition to the monthly income for future prospects is permissible. The Tribunal had accepted the claim of the petitioner that he was aged 42 years at the relevant time of the accident. In the absence of any challenge on that by the respondent, this Court is empowered by the dictum in Pranay Sethi supra to take 25% addition to the monthly income in consideration of future

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M.A.C.A.No.872 of 2013

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prospects. When 25% is added to the notional income fixed as Rs.5,500/-, Rs.6,875/- is arrived at. The multiplier was taken by the Tribunal correctly as 14. Relying on Ext.A13, 72% permanent disability assessed by the District Medical Board, Pathanamthitta as such is taken. Thus in the reassessment with a change in the monthly income alone, Rs.8,31,600/- is arrived at. The amount already stands awarded by the Tribunal being Rs.3,62,880/- the petitioner will get Rs.4,68,726/- as additional compensation under that head. Compensation for loss of earning was arrived at based on Rs.3,000/- as monthly income and the period for which he was prevented from earning income as one year. The one year period is maintained and the compensation for loss of earning was reassessed on the basis of the monthly income modified as Rs.5,500/- and Rs.66,000/was arrived at. Rs.36,000/- being the sum stands awarded by the Tribunal, the petitioner will get Rs.30,000/- as additional compensation under that head. Towards bystander expenses Rs.900/- was awarded by the Tribunal against a claim of Rs.20,000/-. The petitioner was completely bed ridden after

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the motor accident and therefore, Rs.30,000/- is found a reasonable sum to be granted towards bystander expenses and Rs.10,000/- towards extra nourishment. Under the head pain and sufferings the Tribunal has awarded Rs.50,000/-. It being disproportionate to the grave injuries sustained by the petitioner, this Court is inclined to enhance the sum as Rs.1,00,000/- and therefore the petitioner will get Rs.50,000/as additional compensation. Rs.25,000/- stands awarded under the head loss of amenities and enjoyments in life is also modified to Rs.50,000/- and therefore, the petitioner will get Rs.25,000/- as additional compensation under that head.

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In the interference and modification of the compensation, the petitioner will get Rs.6,10,320/- (Rupees Six Lakhs Ten Thousand Three Hundred and Twenty only). The said amount 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 deposit the sum stands awarded by the Tribunal (if not paid till date) and the sum now arrived at as payable

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