Allowed

Francis, S/O.Pappy v. Shinoj

Kerala HC24 Feb 2023MACA/1942/2010

Case brief

AI extract

What is this about?

The High Court allowed an appeal in a motor accident case, enhancing compensation awarded by the Motor Accidents Claims Tribunal. The court increased the loss of earning component based on notional income and added amounts for damages, bystander expenses, loss of amenities, and pain and suffering.

What did the court decide?

Enhanced compensation of Rs. 58,500/- awarded to the appellant; insurer directed to deposit the amount with interest within two months.

Francis, S/O.Pappy Vs Shinoj — Motor Accident Claims | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MRS. JUSTICE SOPHY THOMAS

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FRIDAY, THE 24THDAY OF FEBRUARY 2023 / 5TH PHALGUNA,1944

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MACA NO. 1942 OF 2010

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OPMV 417/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR

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APPELLANT/ORIGINAL PETITION:

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FRANCIS, S/O.PAPPY,
THEKKINEDATH HOUSE, THEVARKADU, VARAPUZHA P.O.,
PARAVUR TALUK, ERNAKULAM DISTRICT.

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BY ADV SRI.G.BALAMURALEEDHARAN (PARAVUR)

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RESPONDENTS/ORIGINAL RESPONDENTS:

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1SHINOJ, S/O.PUSHPANGADAN,
MATTUMMEL HOUSE, THEVARKADU, VARAPUZHA P.O.,PIN-683
517, PARAVUR TALUK, ERNAKULAM DISTRICT.

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2 SHIJEESH, S/O. PUSHPAN, MATTUMMEL HOUSE, THEVARKADU, VARAPUZHA P.O., PIN-683 517.

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3 ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, MANAPPATT BUILDINGS, NORTH NADA,, KODUNGALLUR P.O., PIN-680 644, THRISSUR DISTRICT.

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BY ADV SRI.TITUS MANI

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THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLYHEARD
ON 21.02.2023, THE COURT ON 24.02.2023 DELIVERED THE FOLLOWING:

MACA 1942 of 2010

J U D G M E N T

The claimant in OP(MV) No.417 of 2005 on the file of Motor Accidents Claims Tribunal, North Paravur, is the appellant herein, challenging the quantum of compensation awarded by the Tribunal.

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On 11.07.2004, while the appellant was riding his bicycle through Varapuzha - Paravur road, he was knocked down by KL-7/AQ-5323 motorcycle, ridden by the 2^nd respondent in a rash and negligent manner. He suffered injuries thereby and he was hospitalised for 31 days. Though he approached the Tribunal claiming compensation of Rs.2,86,000/-, the Tribunal awarded only Rs.1,42,069/-.

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The 1^st respondent was the owner, the 2^nd respondent was the rider and the 3^rd respondent was the Insurer of the offending motorcycle. Respondents 1 and 2 remained ex parte and only the 3^rd respondent contested the case. The accident and policy are admitted by the Insurer. But, according to them, the appellant was under the influence of alcohol and hence the accident occurred.

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Before the Tribunal, PW1 was examined and Exts.A1 to A7 were marked from the side of the appellant. Exts. B1 and B2 were marked from the side of the Insurer.

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MACA 1942 of 2010

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Learned Tribunal, without analysing the facts or evidence, simply awarded compensation of Rs.1,42,069/-, out of which, Rs.1,12,069/is the amount covered by medical bills. According to the appellant, though he suffered serious injuries and underwent hospitalisation for 31 days, the Tribunal awarded just Rs.30,000/- excluding the medical expenditure covered by Ext.A7 series bills.

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Heard learned counsel Sri.G.Balamuraleedharan appearing for the appellant and learned counsel Sri.Titus Mani appearing for the 3^rd respondent.

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The appellant was a 50 year old casual labourer, earning monthly income of Rs.3,000/-. The Tribunal, without even fixing a notional income for the appellant, assessed a lump sum amount of Rs.5,000/- towards loss of earning. As a casual labourer, we cannot expect any document to support his income. Going by the decision Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951] , since the accident was in the year 2004, the appellant was eligible to get his notional income fixed @ Rs.4,500/-. But he was claiming only Rs.3,000/- as his monthly income and that could be allowed. Ext.A3 Wound Certificate and Ext.A4 Discharge Summary will show that the

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MACA 1942 of 2010

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appellant suffered serious head injury and craniotomy was done on right fronto temporo parietal region for evacuation of acute subdural hematoma. He was hospitalised for 31 days as seen from Ext.A4 Discharge Summary. Ext.A5 Certificate from Lourdes Hospital, Ernakulam, certifies that the appellant was under regular follow up as an outpatient, and he had to be on medication at least for two more years. Considering that fact, loss of earning for one year is justifiable. So he is eligible to get Rs.36,000/- (3000 X 12). He was already paid Rs.5,000/- towards loss of earning. So he is eligible to get the balance amount of Rs.31,000/- (36,000 - 5,000).

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Towards damaged clothing and bystander expenses, the Tribunal awarded nothing due to want of evidence. This Court is at a loss to understand what evidence the Tribunal was expecting to prove damaged clothing and bystander expenses. He suffered severe head injury and normally the blood oozing out from the injury might have ruined his cloth. When there was evidence to show that he was hospitalised for 31 days, the trial court was not justified in not awarding a single pie towards bystander expenses. So this Court is inclined to award Rs.500/- towards damaged clothing and Rs.10,000/towards bystander expenses as claimed by him, as he was hospitalised for 31 days with severe head injury, and he continued his treatment

MACA 1942 of 2010

for about two years.

Towards loss of amenities, the Tribunal awarded

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Rs.8,000/-. Since the injury was on his head and craniotomy was done to remove the subdural hematoma, and he had to continue his treatment for two years, this Court is inclined to award Rs.7,000/more towards loss of amenities.

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Towards pain and suffering, he was awarded only Rs.15,000/- by the Tribunal. Considering the nature of injuries, period of hospitalisation and duration of treatment extended over a period of two years, this Court is inclined to award Rs.10,000/- more under the head ‘pain and suffering.

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Since no Disability Certificate was produced, the Tribunal cannot be blamed for not allowing any amount under the head ‘permanent disability’.

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Towards transportation to hospital, the amount awarded seems to be reasonable.

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Towards Medical expenses, Ext.A7 series medical bills produced by the appellant was honoured. So no modification is needed under those counts.

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MACA 1942 of 2010

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Head of claim	Amount awarded by the Tribunal	Amount awarded in appeal	Difference to be drawn as enhanced compensation
Loss of earning	Rs.5,000/-	Rs.36,000/-	Rs.31,000/-
Damaged clothing	…..	Rs.500/-	Rs.500/-
Bystander expenses	……	Rs.10,000/-	Rs.10,000/-
Loss of amenities	Rs.8,000/-	Rs.15,000/-	Rs.7,000/-
Pain and suffering	Rs.15,000/-	Rs.25,000/-	Rs.10,000/-
Total			Rs.58,500/-

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In the result, the appellant is entitled to get enhanced compensation of Rs.58,500/- (31,000 + 500 + 10,000 + 7,000 + 10,000).

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The 3^rd respondent - Insurer is directed to deposit the enhanced compensation of Rs.58,500/- (Rupees Fifty Eight Thousand Five Hundred only) in the bank account of the appellant with interest @ 7% per annum from the date of petition till the date of deposit, (except 200 days of delay in filing the appeal), within a period of two months from the date of receipt of a copy of this judgment. The

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MACA 1942 of 2010

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deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475 /2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund.

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The appeal is allowed accordingly. No order as to costs.

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Sd/-

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SOPHY THOMAS JUDGE

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DSV/22.02.2023.

Francis, S/O.Pappy v. Shinoj

Case brief

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Francis, S/O.Pappy v. Shinoj

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