Allowed

Benny Joseph @ Benny v. T.Ravi and 3 Others

Kerala HC21 Feb 2023MACA/2335/2009

Case brief

AI extract

What is this about?

The High Court allowed the appellant's appeal against the Motor Accidents Claims Tribunal. The Court enhanced the compensation by Rs. 12,600 due to the award being based on a 4% disability instead of the proved 5%, and by adjusting the period of loss of earning from 6 to 8 months. The third respondent was directed to pay the enhanced amount with interest.

What did the court decide?

Enhanced compensation of Rs. 12,600 was granted along with 7% interest from the date of petition.

Benny Joseph @ Benny Vs T.Ravi and 3 Others — 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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TUESDAY, THE 21STDAY OF FEBRUARY 2023 / 2ND PHALGUNA,1944

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MACA NO. 2335 OF 2009

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OPMV 1841/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM

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APPELLANT/CLAIMANT:

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BENNY JOSEPH @ BENNY, RESIDING AT
EZHUTHUPALLIYIL (VATTATHOTTIYIL) PATTITHANAM, P.O.,
KIZHAKKUMBHAGOM KARA, ETTUMANOOR VILLAGE, KOTTAYAM.

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BY ADV SRI.SURIN GEORGE IPE

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RESPONDENTS/RESPONDENTS:

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1 T.RAVI, BHARATH PETROLEUM CORPORATION LTD., PUTHIYANGADI, EDAKKAD, KOZHIKODE.

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2 P.M.SASIKUMAR, PAMPUKUDIYIL (H), KANJIRAPPALLY KARA, MULAMTHURUTHY VILLAGE, ERNAKULAM.

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3 THE NATIONAL INSURANCE CO.LTD., KOCHI.

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R3 BY ADV SRI.JOE KALLIATH

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THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLYHEARD
ON 17.02.2023, THE COURT ON 21.02.2023 DELIVERED THE FOLLOWING:

MACA 2335 of 2009

J U D G M E N T

This appeal has been preferred by the claimant in OP(MV) No.1841 of 2005 on the file of the Motor Accidents Claims Tribunal, Kottayam, on the ground of inadequacy of the compensation awarded by the Tribunal.

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On 18.02.1996 at 3.00 p.m., while the appellant was riding his scooter carrying one Mr.Shaji Lukose, on his pillion seat - through M.C. Road, KED 6116 Maruti car, owned by the 1^st respondent, and driven by the 2^nd respondent, came from the opposite direction, in a rash and negligent manner, and dashed against the scooter. The appellant as well as the pillion rider were thrown down, and both of them sustained serious injuries. The appellant suffered fracture of shaft of femur and head injury with cerebral concussion, and he was hospitalised for about 36 days in total, and he underwent various surgical procedures. He suffered disability of 5% due to the injuries suffered. He approached the Tribunal claiming compensation of Rs.3,00,000/-; but the Tribunal awarded only Rs.85,000/- and that is under challenge in this appeal.

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The accident, injuries and the policy of the offending vehicle with the 3^rd respondent - National Insurance Co. Ltd., Kochi are not in dispute.

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MACA 2335 of 2009

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Before the Tribunal, OP(MV) No.1841 of 2005 filed by the appellant was tried along with OP(MV) No.1853 of 2005 filed by Sri.Shaji Lukose, who was the pillion rider in the scooter ridden by the appellant.

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PW1 was examined and Exts.A1 to A14 were marked

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from the side of the claimant and Ext.B1 was marked form the side of the contesting respondent.

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Heard learned counsel Sri.Surin George Ipe appearing

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for the appellant and learned counsel Sri.Joe Kalliyath appearing for the 3^rd respondent.

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Now let us see whether any enhancement/modification is needed in the impugned award.

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According to the appellant, he was a 30 year old lorry driver earning monthly income of Rs.4,500/- as on the date of accident. But the Tribunal took his notional income as Rs.3,000/- only, which is on the lower side. Since the accident was in the year 1996, the notional income fixed by the Tribunal @ Rs.3,000/- seems to be quite reasonable. But the main grievance is that though he suffered 5% disability as seen from Ext.A8 Disability Certificate, which was proved through PW1-Doctor, the Tribunal took only 4% disability while assessing the compensation. PW1 deposed before the Tribunal that he

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MACA 2335 of 2009

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was working as Associate Professor of Orthopaedics, Medical College Hospital, Kottayam and he correctly assessed the disability. The injuries suffered by the appellant were fracture shaft of femur and head injury with cerebral concussion. So the disability assessed by PW1 - Doctor was liable to be accepted by the Tribunal. So, going by Ext.A8 Disability Certificate, coupled with the testimony of PW1-Doctor, the functional disability of the appellant is accepted as 5%, and then the compensation for disability could be assessed as Rs.30,600/-(3000X12X17X5/100). He was already paid Rs.25,000/for the disability. So he is entitled to get enhancement of Rs.5,600/under that head.

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Towards loss of earning, the Tribunal awarded Rs.18,000/- taking the period of loss as 6 months. Considering the fact that he had suffered fracture shaft of femur with head injury and he was hospitalised for 36 days, this Court is inclined to take the period of loss of earning as 8 months. So he is entitled to get enhancement of Rs.6,000/- (3000 X2) under the head ‘loss of earning’.

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Towards bystander expenses, he was awarded only Rs.4,000/- though he was hospitalised for 36 days. This Court is inclined to award Rs.1,000/more under the head ‘bystander expenses’.

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MACA 2335 of 2009

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Head of claim	Amount awarded by the Tribunal	Amount awarded in appeal	Difference to be drawn as enhanced compensation
Compensation for disability	Rs.25,000/-	Rs.30,600/-	Rs.5,600/-
Loss of earning	Rs.18,000/-	Rs.24,000/-	Rs.6,000/-
Bystander expenses	Rs.4,000/-	Rs.5,000/-	Rs.1,000/-
Total			Rs.12,600/-

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The compensation awarded under all other heads seems to be quite reasonable and hence it needs no modification.

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In the result, the appellant is entitled to get enhanced compensation of Rs.12,600/- (Rupees Twelve Thousand Six Hundred only).

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The 3^rd respondent - National Insurance Co.Ltd., Kochi, is directed to deposit the enhanced compensation of Rs.12,600/- (Rupees Twelve Thousand Six 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 162 days of delay in filing the appeal), within a period of two months from the date of receipt of

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MACA 2335 of 2009

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a copy of this judgment. The 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/20.02.2023.

Benny Joseph @ Benny v. T.Ravi and 3 Others

Case brief

What is this about?

What did the court decide?

Benny Joseph @ Benny v. T.Ravi and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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