Allowed

Dileep v. Varghese.P.M

Kerala HC9 Mar 2023MACA/2464/2013

Case brief

AI extract

What is this about?

The High Court allowed an appeal against an award of the Motor Accidents Claims Tribunal. The Court enhanced the compensation due to inadequacy by increasing awards for loss of earning, pain and suffering, loss of amenities, and permanent disability, directing the insurer to deposit the balance amount.

What did the court decide?

The appellant is entitled to an enhanced compensation of Rs.59,700/- by way of balance amount from losses of earning, pain and suffering, loss of amenities, and permanent disability.

Dileep Vs Varghese.P.M — Motor Accident Claims | 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 SOPHY THOMAS

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THURSDAY, THE 9TH DAY OF MARCH 2023 / 18TH PHALGUNA, 1944

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MACA NO. 2464 OF 2013

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AGAINST THE AWARD IN OPMV 31/2009 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL MUVATTUPUZHA DATED 15.7.2013

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APPELLANT/PETITIONER:

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DILEEP

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AGED 33 YEARS, S/O.NARAYANAN NAIR,
ATTODI PUTHENPURA HOUSE, CHERUVATTOORKARA,
IRAMALLUR VILLAGE, MUVATTUPUZHA.

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BY ADVS.
SRI.R.BINDU (SASTHAMANGALAM)
SRI.PRASANTH M.P

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RESPONDENTS / RESPONDENTS:

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1VARGHESE.P.M
33/726, PATTAPPILLY HOUSE,
ERNAKULAM, KOCHI, PIN 682020.

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2NISHAD
S/O.CHALLAPPAN, PULLAYATH HOUSE,
VENDUVAZHIKARA, MOSCOW JUNCTION,
KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN 686691.

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3 MS.UNITED INDIA INSURANCE COMPANY LIMITED MUVATTUPUZHA, PIN 686661.

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4 SUKUMARAN, S/O.SANKARAN, KOCHERI HOUSE, NELLIKKUZHI (P.O.), KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN 686691.

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5 WILSON.M.T., S/O.THOMAS, MULAYIKKL HOUSE, IRIMALLUR (P.O.), ERNAKULAM DISTRICT, PIN 686691.

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BY ADVS.
JOHN JOSEPH VETTIKAD
C.JOSEPH JOHNY

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 09.03.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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MACA.No.2464/2013

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SOPHY THOMAS, J

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----------------------------------------------M.A.C.A No. 2464 of 2013

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Dated this the 9^th day of March, 2023

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J U D G M E N T

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This appeal has been preferred by the claimant in O.P.(MV) No.31/2009 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha, assailing the award on the ground of inadequacy of compensation.

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On 4.10.2008, at 5.30 pm while the appellant was pillion riding a scooter, KL07/J 3478 motor cycle ridden by the 2^nd respondent in a rash and negligent manner dashed against his scooter and he was thrown down and sustained serious injuries including fracture-lateral condyle left tibia. He was admitted and treated at Chazhikattu Hospital, Thodupuzha for a period of 16 days. He suffered permanent disability also due to the accident. He approached the Tribunal claiming compensation of Rs.2,00,000/-, but the Tribunal awarded Rs.1,05,301/-. Hence this appeal.

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MACA.No.2464/2013

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The 1^st respondent was the owner of the offending motor cycle, 2^nd respondent was the rider and the 3^rd respondent was the insurer. The other respondents were the owner, rider and insurer of the scooter, in which the appellant was travelling. Except the 3^rd respondent, insurer of the offending motor cycle, all other respondents remained ex-parte . The accident, injuries and the policy of the offending vehicle are not in dispute.

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PW1 was examined and Exhibits A1 to A10 were marked from the side of appellant/claimant, before the Tribunal. No oral or documentary evidences was adduced from the side of the respondent.

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Now let us see whether any interference is warranted in the impugned award.

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Heard Sri.M.P. Prasanth, learned counsel for the appellant and Sri. John Joseph Vettikkad, learned counsel appearing for the 3^rd respondent/insurer.

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According to the appellant, he was a 30 year old Mason, earning monthly income of Rs.5,000/-, but the Tribunal took his notional income as Rs.3,500/-. As a Mason, he might not have been able to produce any documents to prove his monthly

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MACA.No.2464/2013

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income. But relying on the decision Ramachandrappa v. Royal Sundaram Alliance Insurance Company Ltd. [AIR 2011 SC 2951] , the notional income of even a casual labourer could have been fixed at the rate of Rs.6,500/-, in the year 2008. Even according to his claim, he was earning monthly income of Rs.5,000/- only. So his notional income can be fixed @ Rs.5,000/-. The learned Tribunal assessed loss of earning for a period of four months. Exhibits A7 and A8, the wound certificate as well as discharge summary show that he had suffered fracture lateral Condyle left tibia. Open reduction, internal fixation and bone grafting were done. Hence this Court is of the view that his loss of earning can be taken for a period of six months, @ Rs.5,000/per month. So he is eligible to get Rs.30,000/- (5000x6). He was already paid Rs 14,000/- under the head ‘Loss of earning’. So he is eligible to get the balance amount of Rs.16,000/-.

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Towards pain and suffering, the learned Tribunal awarded Rs.15,000/-. Considering the fact that he was hospitalised for 16 days, open reduction, internal fixation and bone grafting were done and he had suffered disability also, due to the accident, this Court is inclined to award Rs.5,000/- more

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MACA.No.2464/2013

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under the head ‘pain and suffering’.

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For loss of amenities, the Tribunal awarded Rs.12,000/-. Exhibit A10 disability certificate issued by PW1 Doctor shows that the appellant had suffered disability of 13%. But it is sufficient to show that the 13% disability was with respect to the left limb, and not with respect to the whole body. Even then, since the appellant suffered disability due to the accident, as a young man aged 30 years, restriction in movement of knee as reported by PW1 Doctor might have affected his amenities in life. Considering that fact, this Court is inclined to award Rs.3,000/more under the head ‘Loss of Amenities’.

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Regarding the permanent disability, we have seen that 13% disability assessed by PW1 Doctor was with respect to the left limb and it cannot be taken for whole body. Considering the deposition of PW1, that the appellant had permanent implants with restriction in knee movement, this Court is inclined to fix his permanent disability (whole body) as 7% instead of 5% taken by the Tribunal. This Court has fixed his notional income at Rs. 5,000/-. So the compensation for 7% disability can be assessed as 71,400/-. He was already paid Rs.35,700/- under the head

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MACA.No.2464/2013

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disability and he is eligible to get balance amount of Rs.35,700/-.

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The compensation awarded under all other heads

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seems to be just and reasonable and it needs no interference.

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Head of claim (1)	Amount awarded by the Tribunal (2)	Amount awarded in appeal (3)	Difference to be drawn as enhanced compensation (4)
Loss of earnings	Rs.14,000/-	Rs.30,000/-	Rs.16,000/-
Pain & sufferings	Rs.15,000/-	Rs.20,000/-	Rs.5,000/-
Loss of amenities	Rs.12000/-	Rs.15,000/-	Rs.3,000/-
Compensation for permanent disability	Rs.35,700/-	Rs.71,400/-	Rs.35,700/-
Total		Rs.1,36,400/-	Rs.59,700/-
Enhanced comp	ensation(160	00+5000+3000	+35700=59,700)

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In the result, the appellant is entitled to get enhanced compensation of Rs.59,700/- (16,000+5,000+3,000+35,700).

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The liability of 3^rd respondent/insurer to compensate the appellant is not under challenge. So the 3^rd respondent is directed to deposit the enhanced compensation of Rs.59,700/- in the Bank Account of the appellant with interest @ 8% per annum from the date of petition till the date of deposit (except 34 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 deposit must

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MACA.No.2464/2013

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

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Sd/- SOPHY THOMAS , JUDGE

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sou.

Dileep v. Varghese.P.M

Case brief

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Dileep v. Varghese.P.M

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