Partly allowed

Annamma Cheriyan @ Annamma v. Jawahar @ Babu

Kerala HC13 Feb 2023MACA/1566/2020

Case brief

AI extract

What is this about?

This hesitation motor accident claim appeal involved a passenger injured in a bus accident. The High Court of Kerala revised the Tribunal's compensation assessment, increasing notional income based on Supreme Court authority and awarding enhanced sums for loss of earnings, earning capacity, pain and suffering, and loss of amenities.

What did the court decide?

Compensation under Loss of Earnings revised to Rs.80,000; Loss/Reduction in Earning Capacity to Rs.42,000; Pain and Suffering to Rs.1,00,000; additional Rs.50,000 for Loss of Amenities; total addition

Annamma Cheriyan @ Annamma Vs Jawahar @ Babu — 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 MR. JUSTICE DEVAN RAMACHANDRAN

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MONDAY, THE 13TH DAY OF FEBRUARY 2023 / 24TH MAGHA, 1944

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MACA NO. 1566 OF 2020

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AGAINST THE AWARD DATED 05.11.2019 IN OP(MV) NO.833/2015 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM

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APPELLANT:

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ANNAMMA CHERIYAN @ ANNAMMA, AGED 63 YEARS
W/O.CHERIYAN, PANAKUNNEL HOUSE, 2 CENT ALBERT,
PANAKUNNELPADI BHAGOM, AMAYANNOOR P.O.,
AYARKUNNAM, KOTTAYAM.

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BY ADV P.M.JOSHI

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RESPONDENTS:

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1 JAWAHAR @ BABU, S/O.MAJEED, THOTTAMCHIRA HOUSE, AYARKUNNAM KARA, AYARKUNNAM P.O., KOTTAYAM, PIN-686 564.

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2 SHIJO KURIAN, S/O.P.K.KURIAN, POOVATHARAYILL THIRUVANCHOOR P.O., MANARCADU VILLAGE, KOTTAYAM, PIN-686 019.

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3 M.A.MATHEW, 1/303 CHIRAVATHARA HOUSE, PARAMPUZHA P.O., KOTTAYAM, PIN-686 004.

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4 THE NATIONAL INSURANCE CO.LTD., KOTTAYAM, KOTTAYAM-1, REPRESENTED BY ITS DIVISIONAL MANAGER.

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BY ADV SRI. AJAY KUMAR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 13.02.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

MACA 1566/20

JUDGMENT

This appeal is being disposed of today itself with the

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consent of both sides, and as requested by them.

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The 63 year old appellant was concededly involved in

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a road accident, while she was alighting from a bus; thus sustaining injuries. She, therefore, preferred OP(MV) No.833/2015 before the Motor Accidents Claims Tribunal, Kottayam (‘Tribunal’ for short), seeking a total compensation of Rs.16,78,000/-, limited to Rs.8,00,000/-; but has been granted only Rs.2,48,270/-, against

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which, she has filed this appeal.

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Sri.P.M.Joshi – learned counsel appearing for the appellant, argued that, since the factum of negligence of the driver of the bus, or the seriousness of the injuries sustained by his client are undisputed, the Tribunal ought to have adopted a minimum of Rs.10,000/- per month as her notional income and then to have granted compensation based on such. He submitted that, however, instead of doing so, it has erroneously adopted

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only Rs.6,000/- as the notional income of his client, thus leading

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MACA 1566/20

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to the total compensation granted to be inadequate.

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Sri.Ajay Kumar – learned Standing Counsel appearing

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for the Insurance Company, conceded that, going by Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the minimum notional income ought to have been considered by the Trbunal in favour of the appellant was Rs.10,000/-; but added that since no such claim was made, it was without error in having not granted it. He thus prayed that this appeal be dismissed.

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I am afraid that I cannot find favour with the afore

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submissions of Sri.Ajay Kumar because, as per the evidence on record – copies of which have been handed over across the Bar

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by the learned counsel for the parties, with the express consent that it can be acted upon by this Court without dispute – the appellant has certainly suffered serious injuries on account of the accident; and was thus entitled to be granted notional income based on Ramachandrappa (supra). Going by the standardization postulated in Ramachandrappa (supra), no evidence is required to have been led by the appellant to prove the figures mentioned

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MACA 1566/20

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therein, particularly because it is intended to cover the cases of

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persons with unascertainable income.

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6 . In the afore circumstances, I am left without doubt

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that the notional income adopted by the Tribunal is wrong and

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that it ought to have been Rs.10,000/-, as per Ramachandrappa (supra), in favour of the appellant.

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7 . That being said, I am also in favour of the submissions of the learned counsel for the appellant that the compensation granted under the head ‘Pain and Suffering’; and denial of same under the head ‘Loss of Amenities’ was incorrect.

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This is because, going by the medical evidence on record, particularly Ext.A4 Wound Certificate, the appellant had suffered ‘fracture distal end of right radius, fracture styloid process right ulna and fracture neck of femur right’ (sic). These injuries are surely serious, requiring treatment for some time to be suffered by the appellant. I am, therefore, of the firm view that the compensation under the head ‘Pain and Suffering’ ought to have been at least Rs.1,00,000/-, while for ‘Loss of Amenities’ the

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appellant is entitled to a further sum of Rs.50,000/-.

MACA 1566/20

Resultantly;

a ) The compensation under the head ‘Loss of Earnings’ is

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revised to Rs.80,000/-, instead of Rs.48,000/- now granted by the

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Tribunal.

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b ) The compensation under the head ‘Loss/Reduction in

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Earning Capacity’ is enhanced to Rs.42,000/-, instead of Rs.25,200/- granted by the Tribunal.

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c ) The compensation under the head ‘Pain and Suffering’

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is enhanced to Rs.1,00,000/-, instead of Rs.70,000/- granted by

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the Tribunal.

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d ) In addition to the above, an amount of Rs.50,000/- is

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granted under the head ‘‘Loss of Amenities and Conveniences’.

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e ) In all other heads, findings of the Tribunal will remain unaltered.

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This Appeal is thus partially allowed, granting an additional compensation of Rs.1,28,800/- to the appellant, which she is entitled to recover along with the compensation awarded by the Tribunal, along with interest at the rate of 9% from the date of filing of the claim till realisation. She will also be entitled to

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MACA 1566/20

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proportionate cost on the enhanced amount, as ordered by the

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Tribunal.

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Sd/-

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ACR/RR

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DEVAN RAMACHANDRAN

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JUDGE

Annamma Cheriyan @ Annamma v. Jawahar @ Babu

Case brief

What is this about?

What did the court decide?

Annamma Cheriyan @ Annamma v. Jawahar @ Babu

Case brief

What is this about?

What did the court decide?

What the court decided

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