Allowed

Vinod v. The Managing Director

Kerala HC9 Nov 2023MACA/143/2023

Case brief

AI extract

What is this about?

Kerala High Court allowed the appellant's appeal in a motor accident claim, enhancing the compensation awarded by the Motor Accidents Claims Tribunal. The Court fixed a higher notional monthly income, increased the disability percentage from 30% to 50% due to amputation of a foot, extended the treatment period, and awarded additional compensation for various heads, totaling Rs. 10,47,400 with inte

What did the court decide?

Additional compensation of Rs. 10,47,400 with interest at 7.5% per annum from the date of filing the original petition till realization.

Vinod Vs The Managing Director — Medical Negligence | Kerala HC (2023)

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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 9TH DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945

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MACA NO. 143 OF 2023

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CRIME NO.3898/2016 OF KOLLAM WEST POLICE STATION, KOLLAM

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AGAINST THE AWARD IN OPMV 197/2017 OF MOTOR ACCIDENT CLAIMS

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TRIBUNAL, KOLLAM DATED 15.07.2022

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APPELLANT/PETITIONER:

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VINOD
AGED 22 YEARS
S/O KUNJUMON, RESIDING AT THONDALIL PUTHEN VEEDU, MEKKONE,
CHANDANATHOPE, PERINAD, CHANDANATHOPE P.O.,
KOLLAM, PIN – 691 014
BY ADVS.R.RAJESH (VARKALA)
 M.KIRANLAL
 MANU RAMACHANDRAN
 SAMEER M NAIR
 GEETHU KRISHNAN
 SAILAKSHMI MENON

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RESPONDENTS/RESPONDENTS:

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1 THE MANAGING DIRECTOR KERALA STATE ROAD TRANSPORT CORPORATION, TRIVANDRUM, PIN – 695 035

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2 MADHU C S/O CHELLAPPAN, CHARUVILA PUTHEN VEEDU, MUTHUPILAKKADU, MUTHUPILAKKADU WEST P.O., KOLLAM DISTRICT, PIN – 690 520

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3 THE BRANCH MANAGER NEW INDIA ASSURANCE CO. LTD., THIRUVANANTHAPURAM DISTRICT, PIN – 695 033 BY ADVS.ALEX ANTONY SEBASTIAN P.A. GIRIJA.K.

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ADV LAL K JOSEPH -SC

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
09.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MACA No. 143 of 2023

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JUDGMENT

Dated this the 09^th day of November, 2023

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The appeal on hand is originated from an award passed by II Additional Motor Accidents Claims Tribunal, Kollam (for short ‘the Tribunal’) on 15.07.2022 in OP (MV) No.197/2017. The appellant is the petitioner before the Tribunal. He seeks for enhancement of compensation in the appeal on hand.

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For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the above Original Petition.

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As per the averments in the Original Petition, the petitioner met with a motor accident at 1.40 p.m. on 12.12.2016 when a KSRTC bus bearing Registration No.KL15/6413 driven by the 2^nd respondent in a rash and negligent manner hit against the motorcycle bearing

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MACA No. 143 of 2023

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Registration No.KL-02/AG-5308 ridden by him with another person on its pillion seat from Asramam to Chinnakkada at Muneeswaran Kovil Junction and thereby he sustained serious injuries. Immediately after the motor accident, he was taken to District Hospital, Kollam and referred therefrom to Medical College Hospital, Thiruvananthapuram for better management. Motor accident was allegedly occurred due to the rash and negligent driving of the KSRTC bus by the 2^nd respondent. A sum of `40,00,000/- was also claimed as total compensation in the Original Petition.

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All respondents were served with notice from the Tribunal. 1^st and 2^nd respondents did not turn up to contest the Original Petition and therefore were declared as exparte . In the written statement filed by the 3^rd respondent, policy issued for the KSRTC bus bearing Registration No.KL15/6413 covering the date of accident was admitted. It was contended that conditions of the policy were violated by the

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2^nd respondent and therefore they are not liable to pay any

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MACA No. 143 of 2023

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compensation to the petitioner. The rider of the motorcycle was also alleged as negligent in riding it and causing the motor accident. Claims of the petitioner regarding the age, the occupation and the monthly income were disputed. The permanent disability claimed as suffered was also disputed.

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Before the Tribunal, petitioner alone adduced evidence and it consists of Exts.A1 to A13 and Ext.C1. Based

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on the evidence adduced by the petitioner, the Tribunal arrived at a finding that the motor accident was resulted from the rash and negligent driving of the KSRTC bus by its driver. The Tribunal also arrived at a sum of 9,36,041/(9,36,000/-) as the total compensation payable to the petitioner. Interest at the rate of 8% per annum was also ordered to be paid from the date of filing of the Original Petition till the date of realisation. Being aggrieved by the compensation stood awarded by the Tribunal, petitioner is now before this Court seeking for modification.

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MACA No. 143 of 2023

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It is contended by Sri.Sameer M.Nair, the learned counsel for the petitioner that the Tribunal failed to award just and reasonable compensation under various heads. According to him 9,000/- was fixed by the Tribunal as the monthly income of the petitioner on a notional basis. According to him, as per the pleadings raised in the Original Petition, the petitioner was a collection agent of Kotak Mahindra Finance earning 15,000/- monthly. According to him, the Tribunal is unjustified in discarding the claims of the petitioner as above and fixed `9,000/- as the monthly income notionally.

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The learned counsel also urged that in Ext.C1 issued by the Medical Board the wholebody disability of the petitioner was certified as 30% and being a collection agent, the disability undoubtedly impacted his loss of earning power, but the Tribunal failed to consider that aspect while awarding compensation. According to him, compensation was calculated by the Tribunal based on 30% wholebody

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MACA No. 143 of 2023

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disability certified in Ext.C1. According to him, the functional disability of the petitioner is more than 30% certified in Ext.C1 and therefore, the compensation ought to have been modified. According to the learned counsel, `75,000/- stood awarded by the Tribunal towards pain and sufferings being inadequate and highly disproportionate to the injuries sustained by the petitioner and his sufferings following that, it needs to be enhanced. It was urged furthermore that the Tribunal failed to award reasonable compensation towards bystander expenses, transportation expenses and extra nourishment and canvassed for enhancement of compensation stood awarded under those heads also. The learned counsel canvassed for further enhancement of the interest rate as 9%.

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The learned counsel for the 1^st and 2^nd respondents contended on the contrary that the compensation stood awarded by the Tribunal under various heads are reasonable and proportionate to the injuries sustained by the petitioner.

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MACA No. 143 of 2023

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According to them, in Ext.C1, the wholebody disability of the petitioner was certified by the Medical Board as 30% and therefore, the Tribunal is justified in calculating compensation on its basis. The argument of the learned counsel to consider a higher percentage for the functional disability of the petitioner is discarded for the reason that the petitioner was not restrained by the injuries from travelling.

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The counsel also canvassed for maintaining the rate of interest stood awarded by the Tribunal itself for the additional compensation that would be arrived at in the appeal on hand. The learned counsel has pointed out further that the compensation stood awarded by the Tribunal towards loss of amenities and enjoyments in life being a higher sum, modification in the quantum of compensation, stood awarded towards pain and sufferings is not at all warranted.

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MACA No. 143 of 2023

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In the backdrop of the rival contentions raised, this Court has gone through the pleadings of the petitioner in the Original Petition as well as the documentary evidence adduced by him.

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As per the claims raised in the Original Petition, petitioner is a collection agent of Kotak Mahindra Finance earning 15,000/- monthly. The petitioner failed to produce any materials to establish his job and monthly income. However, 9,000/- fixed notionally as monthly income is not a reasonable sum with reference to the year 2016, in which he met with the motor accident and therefore this Court re-fixes it as `10,500/-.

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Petitioner being a young man of 22 years and being 30% permanently disabled, it is reasonable to add 40% to his monthly income in consideration of loss of his future prospects. Thus, 14,700/- ( 10,500/- + 40% of `10,500/- ) is arrived at.

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MACA No. 143 of 2023

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In Ext.C1 the wholebody disability of the petitioner was assessed as 30%. With 30% wholebody disability, petitioner could not pursue his job in the same manner as he was performing prior to the motor accident. Since he has lost his foot, travelling may not be comfortable as before and this Court finds justification in considering 50% occupational disability for him as per Schedule I of the Workmen’s Compensation Act, 1923 for loss of one foot.

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The multiplier being correctly adopted by the Tribunal is maintained. When compensation for loss of earning power is calculated based on the modified monthly income and the percentage of disability, 15,87,600/(14,700/- x 12 x 18 x 50/100) is arrived at. 5,83,200/stood awarded by the Tribunal when adjusted against, the petitioner will get 10,04,400/- as additional compensation under that head.

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As already stated, treatment was availed by the petitioner from a local hospital as well as Medical College

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MACA No. 143 of 2023

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Hospital, Thiruvananthapuram. Since he has lost a foot, he may not be able to travel in an ordinary conveyance like bus. He must have been constrained to travel by availing the service of a taxi or allied vehicle. Considering all these aspects, this Court grants 5,000/- more as compensation towards transportation expenses. 5,000/- and 3,000/more are awarded as compensation towards extra nourishment and bystander expenses respectively. The Tribunal has awarded 75,000/- as compensation towards pain and sufferings. The amount stood awarded undoubtedly a meagre sum when viewed in the backdrop of the injuries sustained by him. It is found that `1,95,000/was awarded by the Tribunal as compensation towards loss of amenities and enjoyments in life. This Court finds it reasonable to adjust a portion of the amount stood awarded under the above heads towards the compensation for pain and sufferings. Six months was considered by the Tribunal for calculating compensation under the head loss of earning.

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MACA No. 143 of 2023

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The nature of injuries sustained in the motor accident and the period of treatment constrains this Court to enhance the period to 8 months. When compensation for loss of earning is calculated on the basis of the modified monthly income and the period, 84,000/- (10,500/- x 8) is arrived at. When 54,000/- already stood awarded by the Tribunal is adjusted against, the petitioner will get 30,000/- as additional compensation.

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In the manner of calculation afresh, the petitioner will get 10,47,400/- (10,04,400/- + 5,000/- + 3,000/- + 30,000/- + 5,000/-) (Rupees Ten Lakhs Forty Seven Thousand and Four Hundred only) as additional compensation which amount will also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation of the amount.

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In the result, MACA is allowed and a sum of `10,47,400/- is awarded as additional compensation with interest at the rate of 7.5% per annum from the date of

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MACA No. 143 of 2023

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filing of the Original Petition till the date of realisation. The 3^rd respondent, shall pay the additional compensation now arrived at with interest accrued on it and the Original Compensation stood awarded by the Tribunal alongwith interest and costs (if not already paid), 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

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06.09.2019.

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Sd/-

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MARY JOSEPH JUDGE

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MJL

Vinod v. The Managing Director

Case brief

What is this about?

What did the court decide?

Vinod v. The Managing Director

Case brief

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What did the court decide?

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