Allowed

C.D.Raphy v. Aymukutty

Kerala HC12 Aug 2022MACA/962/2012

Case brief

AI extract

What is this about?

The High Court enhanced the compensation awarded by the Motor Accidents Claims Tribunal in a motor accident case, revising calculations for income, loss of earning capacity, disability percentage, pain and suffering, and loss of amenities, directing the insurance company to pay the enhanced amount.

What did the court decide?

Compensation enhanced to Rs. 2,26,713 including enhanced loss of earning, pain and suffering, and loss of amenities. Interest at 5% directed from date of petition.

C.D.Raphy Vs Aymukutty — 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 MR.JUSTICE C. JAYACHANDRAN

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FRIDAY, THE 12TH DAY OF AUGUST 2022 / 21ST SRAVANA, 1944

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MACA NO. 962 OF 2012

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AGAINST THE AWARD DATED 28.02.2011 IN OP(MV)NO.3249/2004 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL,THRISSUR

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APPELLANT/PETITIONER:

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C.D.RAPHY
AGED 32 YEARS,
S/O DEVASSY, CHIRAYATH HOUSE,
P.O. KODANNUR, THANIKYAMANAYAM VIA.,
THRISUUR-680574

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BY ADVS.
SRI.M.B.PRAJITH
SRI.SURAJ S.

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RESPONDENTS/RESPONDENTS:

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1 AYMUKUTTY

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S/O KUNJU,KAYAMKULAM HOUSE,P.O., MANNUTHY,
THRISSUR DISTRICT-688006

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2 HAMEED K.I.

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S/O AYMUKUTTY, KAYAMKULAM HOUSE, P.O.,MANNUTHY, THRISSUR DISTRICT-688006

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3 UNITED INDIA INSURANCE COMPANY LIMITED BR. OFFICE, SIMIS COMPLEX, ROUND SOUTH, THRISSUR DISTRICT-688001

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BY ADV. AGI JOSEPH

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 12.08.2022,THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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M.A.C.A. No.962 of 2012

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C. JAYACHANDRAN, J.

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= = = = = = = = = = = = = = = = = = M.A.C.A. No.962 of 2012

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= = = = = = = = = = = = = = = = = = Dated this the 12^th day of August, 2022

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J U D G M E N T

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The petitioner in OP (MV) No.3249/2004 of the Motor Accidents Claims Tribunal, Thrissur is the appellant herein. Under challenge in this appeal is the award dated 28.02.2011 in the said Original Petition. Essentially, the appellant seeks enhancement of compensation granted by the Tribunal under various heads.

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Heard, Sri.Suraj S., learned Counsel for the appellant and Sri.Agi Joseph, learned Counsel for the 3^rd respondent Insurance Company. Perused the records.

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The first point canvassed by the learned counsel for the appellant is with respect to the monthly income reckoned by the Tribunal. The appellant/claimant claimed a sum of Rs.4,500/towards monthly income, whereas the Tribunal reckoned only Rs.2,500/-. The notional income indicated in Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance

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M.A.C.A. No.962 of 2012

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Company Ltd. [(2011) 13 SCC 236] pertaining to the year 2004 is Rs.4500/ -. The p etitioner is a driver by profession, in proof of which he had produced his driving licence. In the circumstances, this Court is of the opinion that Rs.4,500/claimed can be reckoned as the notional monthly income of the appellant/claimant.

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The next point canvassed by the learned counsel for the appellant is regarding the loss of earning capacity. The Tribunal reckoned a period of three months as the period over which the claimant was deprived of his earning capacity because of the injuries sustained. This, according to the appellant/claimant, is grossly on the lower side. Learned counsel pointed out that going by the records produced, it could be seen that the claimant was treated from 08.03.2004 to 18.05.2005 during which period, the claimant was admitted in the hospital intermittently. In as much as the treatment had extended for a period of 8 months as decipherable from the dates indicated above, this Court is of the opinion that a period of ten months can be reckoned for the purpose of loss of earning. It is so done.

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M.A.C.A. No.962 of 2012

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The 3^rd count canvassed by the learned counsel for the appellant is with respect to ‘pain and suffering’, where the Tribunal had granted only Rs.16,000/-. The details of the treatment given to the claimant is narrated in paragraph Nos.9 and 10 of the Award impugned. As already indicated above, he had to undergo treatment for a period of 8 months, which includes intermittent admission as well. His left leg was shortened by 1 cm. In the circumstances, this Court is of the opinion that it would be reasonable to reckon a sum of Rs.50,000/- towards pain and suffering. Ordered accordingly.

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The compensation on account of loss of amenities was not reckoned by the Tribunal. The petitioner was assessed with disability of 15.44% as per Ext.A10 disability certificate, about which detailed discussion will be made in the succeeding paragraph. For the same set of reasons as taken stock of for compensation under the head ‘pain and suffering’, including the fact that petitioner’s left leg was shortened by 1 cm, this Court is of the opinion that the petitioner can be awarded a sum of Rs.25,000/- towards loss of amenities.

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M.A.C.A. No.962 of 2012

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The last but the main issue canvassed by the learned counsel for the appellant is with respect to Ext.A10 disability certificate, which has been issued by a private doctor certifying that the claimant had suffered a whole body disability of 15.44%. However, the doctor was not examined. Even the claimant did not mount the box. Therefore, the Tribunal only took the disability at 6%. It is true that the doctor ought to have been examined or atleast the claimant should have presented himself before the Tribunal, so as to enable the Tribunal to understand his practical difficulties. Both having not been done, Ext.A10 as such cannot be taken stock of. However, the details of the treatment undergone by the petitioner would indicate that, he had suffered disability of a permanent nature. It has been taken note of the Tribunal that his left leg was shortened by 1 cm. In such circumstances, reckoning the disability at 6% is on the lower side. This Court also take into account the fact that, Ext.A10 certificate is an exhaustive one, narrating the reasons and the methodology as per which the disability has been arrived at. It also refers to the fact that the doctor who issued Ext.A10 has 28

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M.A.C.A. No.962 of 2012

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years of experience in Orthopedic specialty. Solely, for the reason that he was not examined, the disability assessed cannot be reduced substantially. This Court is therefore of the opinion that, disability can be reckoned at 11%, instead of 15.44% indicated in Ext.A10.

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The learned Counsel for the 3^rd respondent Insurance Company pointed out that the multiplier 17 taken by the Tribunal is wrong and that the correct multiplier is 16. This aspect is not opposed/challenged by the learned counsel for the appellant, wherefore, this Court directs to reckon the multiplier as 16.

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In the result, this MACA is allowed and the compensation amount payable to the claimant/appellant is enhanced as indicated in the table shown herein below.

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Sl. No.	Head of claim	Amount awarded by the Tribunal (Rs)	Total amount after enhancement in appeal (Rs.)
1	Loss of earning (Total)	7500	45000 (4500X10)
2	Loss of earning(Partial)	-	-
3	Medical and Miscellaneous expenses	5173	5173

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M.A.C.A. No.962 of 2012

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4	Future treatment	-	-
5	Bystander expenses	3000	3000
6	Transportation expenses	1000	1000
7	Extra nourishment	2000	2000
8	Damages to clothing, etc	500	500
9	Pain and suffering	16000	50000
10	Disability, etc	30600	*****95040
11	Loss of amenities	-	25000
	Total	65773	226713

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Amount enhanced = Rs.160940/- (226713 – 65773) ***** (4500x12x16x11/100)

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The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amounts at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. Since there was a delay of 306 days in filing the appeal, the interest for the enhanced quantum shall not run for the said period as directed in order dated 10.03.2021 in C.M.Appl.No.1186/2012. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank

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M.A.C.A. No.962 of 2012

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account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest on enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition.

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Sd/- C.JAYACHANDRAN JUDGE

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C.D.Raphy v. Aymukutty

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C.D.Raphy v. Aymukutty

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