Allowed

Suresh v. Baburaj

Kerala HC3 Nov 2023MACA/295/2023

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an appeal against a Motor Accidents Claims Tribunal award. The Court found the Tribunal's assessment of disability percentage and various compensation heads (loss of earning, pain and suffering, amenities, etc.) inadequate. It recalculated and awarded additional compensation.

What did the court decide?

Additional compensation of `53,400/- with 7.5% interest per annum, payable by Respondent 3 within two months.

Suresh Vs Baburaj — 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 MARY JOSEPH

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FRIDAY, THE 3RD DAY OF NOVEMBER 2023 / 12TH KARTHIKA, 1945

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MACA NO. 295 OF 2023

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AGAINST THE AWARD IN OPMV 2319/2014 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL, THRISSUR DATED 28/05/2022

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APPELLANT/PETITIONER:

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SURESH
AGED 54 YEARS
S/O.RAMAKRISHNAN, THEKKOOT HOUSE, P.O.CHIYYARAM,
THRISSUR DIST, PIN – 680 026
BY ADVS.SRI. A.R.NIMOD
 SRI. M.A.AUGUSTINE

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RESPONDENTS/RESPONDENTS:

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1BABURAJ
MULLASSERY HOUSE, THANISSERY.P.O.,
THRISSUR, PIN – 680 701

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2 MANJUSH S/O.BHASKARAN, IRUMBILLYPARAMBIL HOUSE, NAYARANGADI, P.O.KALLUR, THRISSUR, PIN – 680 317

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3UNITED INDIA INSURANCE CO.LTD
PARK HOUSE, ROUND NORTH, THRISSUR, PIN – 680 001
REPRESENTED BY BRANCH MANAGER.
BY ADV P.K.MANOJKUMAR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 03.11.2023, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

MACA No. 295 of 2023

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JUDGMENT

Dated this the 3^rd day of November, 2023

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The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Thrissur (for short ‘the Tribunal’) on 28.05.2022 in OP (MV) No.2319/2014. The appellant is the petitioner before the Tribunal.

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For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition.

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According to the learned counsel, the petitioner had sustained comminuted fracture lower 3^rd of left fibula in the motor accident and was subjected to fixation by plate and screws. He was treated as inpatient from 13.05.2012 till 21.05.2012 at Jubilee Mission Medical College Hospital, Thrissur. According to him, despite all these aspects stood

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MACA No. 295 of 2023

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established before the Tribunal, it calculated compensation for loss of earning only for four months. According to him, the Tribunal also failed to award reasonable compensation towards pain and sufferings, loss of amenities and enjoyments in life, transportation expenses, bystander expenses and extra nourishment. According to him petitioner got his permanent disability certified as 19.44% by an individual Orthopedic Surgeon, but the Tribunal failed to consider it as such, but confined its consideration only to 10%.

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The learned counsel invited this Court’s attention to

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loss of muscles reported in Ext.A8 and canvassed for consideration of a higher percentage of disability for the petitioner. In Ext.A8, the doctor who examined the petitioner has reported difficulty for him to squat and sit cross-legged due to loss of rotation of movements of left ankle by 30% and instability of lower limb due to limitation of muscle power to grade IV. The motor accident was

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MACA No. 295 of 2023

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occurred in the year 2012 and the disability of the petitioner was assessed on 08.09.2020. Both in Exts.A7 and A8, the implants laid at the fracture site was reported as still in situ. The petitioner failed to examine the doctor who assessed his disability and issued Ext.A8. Though it was stated in Ext.A8 that the petitioner has only grade IV muscle power and instability of his right leg, he did not mount the witness box

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to depose all those aspects. In the above circumstances, this Court finds no reason to consider a higher percentage of disability in the case of the petitioner and reassessment of compensation under that head.

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The monthly income was taken by the Tribunal as 8,500/-. The motor accident being occurred in the year 2012 and the job in which the petitioner claimed as engaged being tailoring, this Court finds no reason for consideration of a higher sum as his monthly income. Loss of earning was calculated by the Tribunal by taking four months and it being inadequate, is substituted by six months. Thus, 51,000/-

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MACA No. 295 of 2023

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(8,500/- x 6) is arrived at. The compensation stood awarded by the Tribunal when adjusted against, petitioner will get 17,000/- (51,000/- - 34,000/-) as additional compensation. Petitioner who was residing at Chiyyaram, Thrissur availed treatment from Jubilee Mission Medical College Hospital, Thrissur, and therefore, the compensation stood awarded by the Tribunal towards transportation expenses is inadequate and this Court awards 3,000/more. As compensation towards extra nourishment and bystander expenses also, the sum stood awarded by the Tribunal being inadequate, this Court is inclined to award 1,000/- and 2,400/- more respectively as additional compensation. The compensation stood awarded by the Tribunal towards pain and sufferings and loss of amenities and enjoyments in life being inadequate, 20,000/- and `10,000/- more are also respectively awarded.

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In the above manner of calculation afresh, the petitioner will get 53,400/- (17,000/- + `3,000/- +

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MACA No. 295 of 2023

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-:6:-

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1,000/- + 2,400/- + 20,000/- + 10,000/-) as additional

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compensation, which will also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation, excluding 140 days, being the period of delay occurred in filing the appeal on hand. 3^rd respondent shall pay the additional compensation now arrived at with interest accrued on it at the rate fixed, within a period of two months from the date on which certified copy of this judgment is received, in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019.

Sd/-

MARY JOSEPH

JUDGE

MJL

Suresh v. Baburaj

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Suresh v. Baburaj

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