Allowed

Sivadasan P.P. v. United India Insurance Company Ltd.

Kerala HC5 Dec 2023MACA/1881/2023

Case brief

AI extract

What is this about?

The High Court allowed an appeal against the Motor Accident Claims Tribunal's award. The Court critically examined the evidence regarding the appellant's income, disability, and injuries, recalculating compensation for loss of earnings, permanent disability, and other heads. It modified the interest rate from 6% to 7.5%, resulting in an additional compensation of Rs. 1,39,660 to be paid by the ins

What did the court decide?

Awarded additional compensation of Rs. 1,39,660 and increased interest rate to 7.5% per annum on total compensatory amount.

Sivadasan P.P. Vs United India Insurance Company Ltd. — 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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TUESDAY, THE 5TH DAY OF DECEMBER 2023 / 14TH AGRAHAYANA,

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MACA NO. 1881 OF 2023

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AGAINST THE ORDER DATED 14.01.2022 IN OPMV NO.1199 OF 2014
OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR

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APPELLANT/PETITIONER:

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SIVADASAN P.P.,
AGED 71 YEARS,

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SIVADASAN P.P., AGED 71, S/O PRABHAKARAN,
POLAKKANDAM HOUSE,"NARAYANEEYAM", NAITHALAKKAVUU,
KUTTUR, KOTTEKKAD P.O., THRISUSSUR, PIN – 680 013

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BY ADV DILIP J. AKKARA

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RESPONDENT/RESPONDENT:

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UNITED INDIA INSURANCE COMPANY LTD
REP. BY BRANCH MANAGER, THRISSUR TRADE CENTRE,
KURUPPAM ROAD, THRISSUR, PIN – 680 001

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BY ADV K.C.BEENA

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 05.12.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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MACA No. 1881 of 2023

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JUDGMENT

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Dated this the 5^th day of December, 2023

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The appeal on hand is directed against an award passed by Motor Accident Claims Tribunal, Thrissur (for short ‘the Tribunal’) on 14.01.2022 in OP(MV) No.1199/2014. The appellant is the petitioner before the Tribunal. According to him, while walking through TUDA road on 02.05.2014, a car bearing registration No.KL-08-BA-6765 hit him at about 7 p.m. at a place near BSNL office. The motor accident was occurred due to the rash and negligent driving of the car by its driver. Appellant sustained serious injuries and was rushed to Daya Hospital, Thrissur for treatment and further to Aswini Hospital, Thrissur. Original Petition was filed by him seeking for a sum of `4,38,000/- as compensation for his sufferings following the motor accident. The driver, the owner and the insurer of the offending car were arrayed as respondents 1 to 3 in the Original Petition.

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For the sake of convenience, the parties to this appeal

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will hereinafter be referred to as the petitioner and respondent No. 3 in accordance with their status in the Original Petition.

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MACA No. 1881 of 2023

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All respondents were served with notice by the Tribunal. They entered appearance and filed written statements. It was contended by respondents 1 and 2 in the written statement filed jointly that the 1^st respondent was driving the car in a careful manner and the motor accident was occurred solely due to negligence of the petitioner. The sum claimed as compensation was disputed for its exorbitance and lack of basis. Admittedly the offending car was insured with the 3^rd respondent and the 1^st respondent was holding a valid driving licence at the relevant time of the motor accident.

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3^rd respondent has also filed written statement admitting that the car bearing registration No.KL-08-BA-6765 was having a valid certificate of insurance as on date of the motor accident. Negligence alleged against the 1^st respondent was denied and contented that the motor accident was occurred due to carelessness and negligence of the petitioner himself. Claims of the petitioner regarding his age, occupation, monthly income, injuries sustained, procedures of treatment undergone and the disability suffered were disputed.

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MACA No. 1881 of 2023

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Exts.A1 to A6 and A8 were marked by the petitioner in evidence. Ext.A7 was marked subject to proof. Respondents marked Exts.B1 and B2. On the basis of the above evidence, the Tribunal found that the motor accident in question was occurred due to the rash and negligent driving of the car bearing registration No.KL-08-BA-6765 by the 1^st respondent. The Tribunal also found that the petitioner had sustained serious injuries in the motor accident. Accordingly a sum of `1,89,125/was arrived at as the total compensation payable and the 3^rd respondent was directed to deposit the same with interest at the rate of 6% per annum from the date of filing of the Original Petition till the date of realisation alongwith proportionate costs.

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According to Sri.Dilip J Akkara, the learned counsel for the appellant, the petitioner claimed to be a building construction contractor earning 20,000/- monthly but the Tribunal considered only 8,000/- as his monthly income. According to him, the Tribunal ought to have taken `20,000/- itself as the monthly income. According to him, the Tribunal ought to have awarded excess sums than those stood awarded by it as compensation under various other heads also. According to him,

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MACA No. 1881 of 2023

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the Tribunal overlooked the sufferings of the petitioner following the motor accident and thus failed to award any sum as compensation towards discomforts and inconveniences.

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It was contended by the learned counsel that though the petitioner was examined by an Orthopaedic surgeon and a certificate marked in evidence as Ext.A7 was issued certifying his permanent disability as 13%, the Tribunal confined its consideration to 8% without assigning any cogent reasons. According to him, the Tribunal ought to have taken 13% itself as the permanent disability of the petitioner and arrived at the compensation payable on its basis.

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Though it was averred in the Original Petition that the petitioner was a building construction contractor, earning 20,000/-, he failed to adduce any evidence to establish those. He also failed to mount the witness box to depose. Therefore, the Tribunal was constrained to fix the monthly income notionally. Motor accident in question being occurred in the year 2014, this Court finds it appropriate to re-fix the monthly income as 9,500/-. The discharge summary marked in evidence as Ext.A4 would establish the injuries sustained by the petitioner as

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MACA No. 1881 of 2023

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fractures of shaft and neck of left humerus, Type III AC joint injury right, right rib I fracture, right lung contusion and right pleural effusion. Interlocking nailing was done as a curative measure. Nails applied were reported in situ. Treatment was availed as inpatient from Daya Hospital and Aswini Hospital, Thrissur and it continued for 7 days. He was residing at Thattekkad, Thrissur at the relevant time of the motor accident. The motor accident was occurred near BSNL Office, Thrissur and the petitioner had availed treatment from two different hospitals. He had also undergone a surgical procedure for nailing. He was treated as inpatient for 7 days and continued that also as outpatient. When viewed in that angle, it appears to this Court that the compensation stood awarded under various heads need interference and modification. In view of the nature of the injuries sustained by the petitioner, he may not also be able to attend his work as construction worker for a reasonable period. Eight months appears to this Court appropriate for calculating the compensation payable towards loss of earning. Thus 76,000/(9,500/- x 8) is arrived at as compensation payable under that head. `24,000/- was originally awarded by the Tribunal and when

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MACA No. 1881 of 2023

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that was adjusted against the sum arrived at now, the petitioner will get 52,000/- (76,000/- - `24,000/-) as additional compensation.

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As compensation towards transportation expenses

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2,000/- more is awarded. Similarly 2,000/- more is also awarded as compensation towards extra nourishment. As compensation towards bystander expenses, 5,600/- more is awarded. As compensation towards pain and suffering, 30,000/- more is awarded. As compensation towards the discomforts and inconveniences suffered by the petitioner, `30,000/- is awarded. In Ext.A7 issued by an Orthopaedic Surgeon after examining the petitioner, his permanent disability was certified as 13%. The individual Doctor who issued Ext.A7 was not examined before the Tribunal and therefore, it limited consideration of disability to 8%. The discharge summary issued in favour of the petitioner formed part of evidence as Ext.A6 and the certificate assessing disability as Ext.A7. It is noticed from Ext.A7 that malunion and subluxation of AC joint were based as reasons for assessment of 13% disability for the petitioner. Malunion and subluxation of AC joint were already

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MACA No. 1881 of 2023

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reported in Ext.A6 by the doctor who treated the petitioner. Therefore, this Court finds justification in considering 9% as the permanent disability of the petitioner and to calculate the compensation payable afresh on its basis. Thus 71,820/(9,500/- x 12 x 7 x 9/100) is arrived at. 53,760/- being the sum stood awarded by the Tribunal, the petitioner will get 18,060/- (71,820/- - 53,760/-) as additional compensation.

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In the above manner of calculation of compensation afresh, the petitioner will get 1,39,660/-(52,000/- + 2,000/+ 2,000/- + 5,600/- + 30,000/- + 30,000/- + 18,060/-) (Rupees one lakh thirty nine thousand six hundred and sixty only) as additional compensation. The rate of interest awarded by the Tribunal was 6% per annum. Petitioner being a senior citizen at the relevant time of the motor accident, a higher rate of interest is payable for deposits made in a bank. Therefore, this Court finds it reasonable to modify the rate of interest as 7.5% per annum.

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The appeal on hand succeeds and is allowed. `1,39,660/is arrived at as the total additional compensation payable. Interest rate fixed is 7.5% per annum. 3^rd respondent shall pay

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MACA No. 1881 of 2023

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`1,39,660/-, the additional compensation as well as the original compensation stood awarded by the Tribunal with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of payment, within a period of two months from the date on which a certified copy of this judgment is received. The disbursal of the amount shall be in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019.

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Sd/-

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MARY JOSEPH

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ttb

Sivadasan P.P. v. United India Insurance Company Ltd.

Case brief

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Sivadasan P.P. v. United India Insurance Company Ltd.

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