Partly allowed

Velayudhan T.K v. Muhammed Yasir

Kerala HC14 Dec 2023MACA/1771/2023

Case brief

AI extract

What is this about?

This Court allowed a Motor Accident Claims Appeal partly against the Tribunal's award. While rejecting the insurer's challenge to the disability percentage, the Court enhanced compensation for loss of earning, transportation, and future treatment expenses, directing the insurer to pay the revised amount with interest.

What did the court decide?

Appellant succeeded in part; additional compensation awarded with interest; Cross Objection dismissed.

Velayudhan T.K Vs Muhammed Yasir — 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 14TH DAY OF DECEMBER 2023 / 23RD AGRAHAYANA, 1945

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MACA NO. 1771 OF 2023

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AGAINST THE AWARD DATED 15.10.2022 IN O.P(M.V) NO.1081/2018 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI

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APPELLANT/CLAIMANT:

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VELAYUDHAN T.K, AGED 80 YEARS,
S/O.UNNEERI (LATE), THATTARAKUNNATH HOUSE,
'INDU BHAVAN', MUNDUPARAMBA P.O, MALAPPURAM DISTRICT.,
PIN - 676505
BY ADVS.SRI.P.VINODKUMAR
 SMT.AISWARYA RAMESAN
 SMT.HARITHA HARIDAS

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RESPONDENTS/RESPONDENTS:

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1 MUHAMMED YASIR AGED 26 YEARS S/O.ABDURAHIMAN, OVUNGAL HOUSE, MUTTIPALAM, MANJERI, MALAPPURAM DISTRICT, PIN – 676509.

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2 AKHITH RAJESH N.V, S/O RAJESH N.V, CHITHRAMPALLY, THRIKKALANGODE P.O, MALAPPURAM DISTRICT, PIN - 676123

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3 SAJITHA O, B.S.BHAVAN, KURIYATHI, PANACODE UZHAMLACKAL, THIRUVANANTHAPURAM P.O, PIN - 695001

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4 THE NEW INDIA ASSURANCE COMPANY LIMITED REPRESENTED BY ITS BRANCH MANAGER, CHANDRASEKHARAN NAIR STADIUM COMPLEX, PALAYAM, THIRUVANANTHAPURAM, PIN - 695033 BY ADV. R4 BY SMT.GIRIJA.K.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 14.12.2023, ALONG WITH CO.102/2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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M.A.C.A.No.1771 of 2023 and C.O No.102 of 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 14TH DAY OF DECEMBER 2023/23RD AGRAHAYANA, 1945

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CO NO. 102 OF 2023

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AGAINST THE AWARD DATED 15.10.2022 IN O.P(M.V)
NO.1081/2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI

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CROSS OBJECTOR/RESPONDENT:

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THE BRANCH MANAGER
NEW INDIA ASSURANCE COMPANY LTD,
CHANDRASEKHARAN NAIR STADIUM COMPLEX, PALAYAM,
THIRUVANANTHAPURAM, PIN - 695033.
REPRESENTED BY THE MANAGER, REGIONAL OFFICE,
M.G.ROAD, ERANAKULAM,

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BY ADV SMT.GIRIJA.K.

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RESPONDENT/APPELLANT:

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1 VELAYUDHAN T.K, AGED 75 YEARS, S/O.UNNEERI (LATE), THATTARAKKUNNATH HOUSE, ‘INDU BHAVAN', MUNDUPARAMBA.P.O., MALAPPURAM DISTRICT, PIN – 676505

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2 MUHAMMED YASIR, AGED 26 YEARS S/O.ABDURAHIMAN, OVUNGAL HOUSE, MUTTIPALAM, MANJERI, MALAPPURAM DISTRICT, PIN – 676509.

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3 AKHITH RAJESH N.V, S/O.RAJESH N.V, CHITHRAMPALLY, THRIKKALANGODE P.O, MALAPPURAM DISTRICT, PIN - 676123

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4 SAJITHA O, B.S.BHAVAN, KURIYATHI, PANACODE UZHAMLACKAL, THIRUVANANTHAPURAM P.O - 695001

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THIS CROSS OBJECTION HAVING COME UP FOR HEARING ON

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14.12.2023, ALONG WITH MACA.1771/2023, THE COURT ON THE

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SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.No.1771 of 2023 and C.O No.102 of 2023

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JUDGMENT

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Dated this the 14^th day of December, 2023

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The appeal and the Cross Objection are originated

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from an award passed by Motor Accident Claims Tribunal, Manjeri (for short ‘the Tribunal’) on 15.10.2022 in O.P. (M.V.) No.1081/2018.

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The appeal on hand was filed by the claimant challenging the quantum of compensation stood awarded by the Tribunal under various heads. Cross Objection was filed by the insurer of the offending vehicle involved in the motor accident for the reason that the compensation stood awarded by the Tribunal towards permanent disability is on the higher side, since the Tribunal had based 56% disability certified by the Medical Board, for calculation of compensation. According to the learned counsel for the cross objector, the disability of the petitioner was certified as permanent partial disability

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M.A.C.A.No.1771 of 2023 and C.O No.102 of 2023

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and therefore the Tribunal ought not to have taken 56% as such for the purpose of calculation of compensation.

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The motor accident in the case on hand was

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occurred in the year 2016. Petitioner was a pedestrian through the road and was knocked down by a Motorcycle bearing Registration No.KL-21K 2925, ridden by the 1^st respondent in a rash and negligent manner. Petitioner was rushed to Moulana Hospital, Perinthalmanna for treatment and was treated there as inpatient for 9 days. After getting discharged from the hospital, he had also attended the hospital on several occasions as outpatient. The doctor who had treated the petitioner issued Ext.A7 certificate wherein it was stated that the implants laid was in a deformed stage and therefore suggested him to undergo a surgical procedure for correction of it as well as one for hip replacement in future. The petitioner claimed to be aged 76 years and that is established from

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M.A.C.A.No.1771 of 2023 and C.O No.102 of 2023

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the copy of the Aadhar card produced and marked in evidence as Ext.A5. He also claimed to have a monthly income of ₹25,000/- from his occupation as a

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businessman.

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Petitioner failed to adduce any evidence to establish his job and monthly income at the relevant time of the motor accident. Therefore the Tribunal was constrained to fix his monthly income as ₹10,500/- on a notional basis, for calculation purpose.

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It is noticed that the Tribunal has fixed ₹10,500/- as the monthly income of the petitioner. It stood established from the evidence on record that the petitioner had sustained tenderness crepitus right trochanteric area, lacerated wound on scalp, bilateral knee bruising, restriction of ROM of left knee, fracture of left medial tibial condyle and fracture intertrochanteric area of right femur. It is further established that the

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M.A.C.A.No.1771 of 2023 and C.O No.102 of 2023

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petitioner had also undergone inpatient treatment for 9 days and outpatient treatment for several days spreading to several months. Therefore, the Tribunal is highly unjustified in not awarding compensation towards loss of earning. In view of the duration of treatment and the surgical procedures established from the evidence on record as undergone by the petitioner, this Court is inclined to consider loss of earning for ten months. It is pertinent to note that the cross objector has not raised a challenge against the monthly income fixed by the Tribunal as ₹10,500/- notionally. Therefore, this Court finds every reason to maintain it. When compensation

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for loss of earning is considered for ten months, ₹1,05,000/- (₹10,500/- x 10) is arrived at.

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It is also noticed that compensation stood awarded by the Tribunal towards transportation expenses, extra nourishment, damages to clothing and

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M.A.C.A.No.1771 of 2023 and C.O No.102 of 2023

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bystander expenses are also inadequate and disproportionate. The Tribunal also failed to award compensation towards discomforts and inconveniences. This Court finds in the context to award ₹5,500/- more as compensation towards transportation expenses, ₹5,300/-, more towards extra nourishment, ₹250/- more towards damages to clothing, ₹20,000/- more towards bystander expenses and ₹50,000/- towards discomforts and inconveniences suffered by the petitioner. From Ext.A7, this Court is convinced that the petitioner requires future treatment. Materials are not available in evidence to establish that the petitioner had already undergone a surgical procedure as suggested by his doctor for curing the deformity of the implant or else had undergone a surgery for hip replacement. However, the doctor who had treated him has certified in Ext.A7 that a correctional measure for the deformed

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M.A.C.A.No.1771 of 2023 and C.O No.102 of 2023

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implant at the fracture site is required. Considering those aspects, this Court finds justification in awarding some amount towards future treatment expenses. Petitioner has sought for grant of ₹2,50,000/- certified in Ext.A7 towards the expenditure required for the surgeries proposed. But, Ext.A7 is not put to proof by examining its signatory and therefore, this Court is inclined to award only ₹1,50,000/- towards future treatment expenses.

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The contention of the cross objector was that since only permanent partial disability was certified in Ext.X1, the Tribunal ought not to have based 56% certified therein for the purpose of calculation of compensation for permanent disability. But it is revealed from Ext.A7 certificate issued by the doctor who had treated him that the implant laid at the fracture site was in a deformed condition and the petitioner is required to undergo a surgery for its correction. The doctor had also

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M.A.C.A.No.1771 of 2023 and C.O No.102 of 2023
9

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suggested a surgery for replacement of hip in future.

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A perusal of Ext.X1 would reveal to this Court that the disability certified by the Medical Board is permanent locomotor disability of 56% and not permanent partial disability as contended by the learned counsel for Cross Objector. The disability was certified

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by the District Medical Board, Government General Hospital, Manjeri. The assessment by a Medical Board with members having expertise in the subjects under consideration is only to be relied on. The Tribunal has relied on it correctly and therefore, the argument advanced by the learned counsel for the cross objector to re-calculate the compensation for disability on the basis of a percentage lesser than 56% is only to be discarded, being devoid of merits.

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It is found that the multiplier was adopted as ‘5’ and that being correct, is maintained. It is justified to

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M.A.C.A.No.1771 of 2023 and C.O No.102 of 2023

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consider loss of future prospects but the petitioner being aged 76 years at the relevant time of the motor accident, and ₹10,500/- having been taken as his monthly income, loss of future prospects is unlikely to be considered. Therefore, compensation stood awarded by the Tribunal towards disability is maintained. Accordingly, the cross objection was dismissed.

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In the above manner of calculation of compensation afresh, petitioner will get a sum of ₹3,36,050/- (Rupees three lakhs thirty six thousand and fifty only) (₹1,05,000/- + ₹5,500/- + ₹5,300/- + ₹250/+ ₹20,000/- + ₹50,000/- + ₹ 1,50,000/-) as additional compensation, which amount excluding ₹ 1,50,000/awarded towards future treatment expenses will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 4^th respondent being the insurer shall pay the additional

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M.A.C.A.No.1771 of 2023 and C.O No.102 of 2023

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compensation with interest accrued on it at the rate fixed as above, excluding 128 days of delay occurred in filing the appeal on hand, within two months from the date on

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which a certified copy of this judgment is received. The disbursal of the amount in favour of the petitioner shall be in accordance with the directions issued by the Tribunal as well as the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019.

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M.A.C.A succeeds and is allowed in part. Cross Objection fails and is dismissed.

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Sd/-

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MARY JOSEPH JUDGE

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NAB

Velayudhan T.K v. Muhammed Yasir

Case brief

What is this about?

What did the court decide?

Velayudhan T.K v. Muhammed Yasir

Case brief

What is this about?

What did the court decide?

What the court decided

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