Allowed

P.L.Antony v. Bijoy Cyriac and Others

Kerala HC16 Oct 2023MACA/2690/2010

Case brief

AI extract

What is this about?

This appeal sought enhancement of compensation awarded by the Motor Accident Claims Tribunal. The High Court allowed the appeal, increasing disability compensation by fixing monthly income at Rs.8,000 instead of Rs.5,000 and admitting medical bills despite discrepancies in payment proof, totaling an additional Rs.67,418.

What did the court decide?

Award modified to award an additional compensation of Rs.67,418/- to be deposited by the 3rd respondent with interest.

P.L.Antony Vs Bijoy Cyriac and Others — 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 MR.JUSTICE ZIYAD RAHMAN A.A.
MONDAY, THE 16TH DAY OF OCTOBER 2023 / 24TH ASWINA, 1945

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MACA NO. 2690 OF 2010

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AGAINST THE ORDER/JUDGMENT OPMV 3669/2001 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM

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APPELLANT/S:

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P.L.ANTONY
S/O. LATE LONAN, PARAYAMURI HOUSE,, NEAR ACQUINAS
COLLEGE, PAMPAIMOOLA,, EDAKOCHIN, COCHIN-6.

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BY ADVS.
SRI.R.SUDHISH
SMT.M.MANJU
SRI.K.R.RANJITH

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RESPONDENT/S:

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1 BIJOY CYRIAC M/S. COCHIN CARTON MANUFACTURER,138/V,, REFINAERY ROAD, IRIMPANAM.P.O., TRIPUNITHURA., PIN-682309.

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2 WILSON SO. SEBASTIAN KIZHAKKEVEETTIL KALAKETTY, KANJIRAPPALLY VILLAGE,, KOTTAYAM DISTRICT-686508.

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3NATIONAL INSURANCE COMPANY LTD.
BY ITS BRANCH MANAGER, BRANCH OFFICE,, MANAPPAT
CENTRE, H.M.T.JUNCTION,, KALAMASSERY-683104.
BY ADVS.
SMT.K.AMMINIKUTTY
SRI.N.RAGHURAJ
SMT.RAJI T.BHASKAR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 16.10.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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M.A.C.A. No.2690/2010

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JUDGMENT

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The appellant is the petitioner in OP(MV) No.3669/2001 on the files of the Motor Accident Claims Tribunal, Ernakulam. The aforesaid claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 16.12.2001.

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The accident occurred when the motorcycle ridden by the appellant was hit by a mini lorry driven by the 2^nd respondent. The said vehicle was owned by the 1^st respondent and was insured with the 3^rd respondent herein. The appellant was working as a Clerk in Cochin Port Trust with a monthly income of Rs.11,837/-. He was aged 42 years at the time of the accident. The claim petition was submitted in such circumstances seeking compensation.

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The 3^rd respondent submitted a written statement admitting the coverage of policy in respect of the vehicle involved in the accident. However, they disputed the liability

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M.A.C.A. No.2690/2010

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on various grounds. The negligence as well as the quantum of compensation were also also disputed by them.

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The evidence in this case consists of Exts.A1 to A18 and Ext.X1 from the side of the appellant, and no evidence was adduced by the respondents.

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After evaluating the materials placed on record, the tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 2^nd respondent in driving the mini lorry and being the insurer of the said vehicle, the 3^rd respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.2,31,374/- and the said amount was directed to be deposited with interest at the rate of 7% per annum from the date of petition till the date of award and thereafter at the rate of 8% till realisation with proportionate costs. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation.

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M.A.C.A. No.2690/2010

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Heard Smt. Manju M., the learned counsel appearing for the appellant and Smt. Raji T. Bhaskar, the learned counsel appearing for the 3^rd respondent insurance company.

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The main contest raised by the appellant is with respect to the compensation awarded by the tribunal for permanent disability. It is evident from Ext.X1, which is the disability certificate issued from T.D. Medical College that the appellant sustained a physical disability of 10%. Even though the tribunal accepted the percentage of disability, the tribunal granted compensation for permanent disability for the period after the period of the retirement of the appellant. This was particularly because, even after the injuries, he continued in employment, and therefore, there is no loss of income as far as the period in service is concerned.

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After considering the materials placed on record, I

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do not find any illegality in assessing the compensation pertaining to the post retirement period. However, it is seen

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M.A.C.A. No.2690/2010

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that the monthly income taken by the tribunal for the said purpose is only Rs.5,000/- which appears to be on the lower side. This is particularly because the accident occurred in the year 2001 when he was aged 42 years. As per the service regulations governing the appellant, the age of superannuation was 60 years, and therefore, he had 18 more years remaining in his career. Therefore, he was supposed to retire only in the year 2019. Therefore, when compensation is to be calculated for the period after the retirement, some consideration has to be given as to the year of retirement, as the appellant was denied the compensation for loss of earning power during the period he was in service. Therefore, I am of the view that a slightly higher amount than fixed by the tribunal is to be taken for the purpose of computation of compensation under the said head. In this case, the tribunal has taken the monthly income as Rs.5000/only. In the facts and circumstances of the case, it appears to be the lower side. Therefore, I deem it appropriate to fix it

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M.A.C.A. No.2690/2010

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as Rs.8,000/-. When reassessing the compensation for permanent disability with the above revised monthly income, it would come to Rs.67,200/- (8000 x 12 x 7 x 10/100). After deducting Rs.30,000/- already awarded, the additional amount would come to Rs.37,200/-.

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Another contention put forward by the learned counsel for the petitioner is with regard to the medical expenses. In the award, even though the original bills were produced along with the claim petition, the tribunal did not take into consideration certain bills for a total value of Rs.30,218/- which was produced as item No.25 in Ext.A4 series, on the ground that, there was no evidence to show that the payment of the said amounts were paid by the appellants. However, along with the memorandum of appeal, the appellant produced the medical bills showing the endorsement of receipt of the said amount by the hospital concerned as Ext.A1. Therefore, I am of the view that the said bills can be accepted as it appears to be the actual

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M.A.C.A. No.2690/2010

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expenses incurred by the appellant for treatment. The amount covered by the said head is Rs.30,218/-. Thus, the additional compensation receivable by the appellant is fixed as Rs.67,418/-.

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In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 20.06.2009 in OP(MV) No.3669/2001 passed by the Motor Accident Claims Tribunal, Ernakulam, is hereby modified by awarding an additional compensation of Rs.67,418/- (Rupees sixty seven thousand four hundred and eighteen only) and the 3^rd respondent is directed to deposit the said amount along with interest at the rate as ordered by the tribunal within a period of three months from the date of receipt of a copy of this judgment.

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Sd/-

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ZIYAD RAHMAN A.A. JUDGE

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ncd

P.L.Antony v. Bijoy Cyriac and Others

Case brief

What is this about?

What did the court decide?

P.L.Antony v. Bijoy Cyriac and Others

Case brief

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What did the court decide?

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