Allowed

Rahul Raj @ Rahul v. the New India Assurance Company Ltd.

Kerala HC22 Nov 2023MACA/313/2023

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a Motor Accident Claims Appeal, enhancing several heads of compensation including pain and suffering and loss of amenities, rejecting the claim for loss of earning due to the petitioner's status as a student, and increasing the interest rate from 6% to 7.5% per annum.

What did the court decide?

Compensation enhanced to ₹60,250/- for specific heads; interest rate increased to 7.5% per annum; claim for loss of earning denied.

Rahul Raj @ Rahul Vs the New India Assurance Company Ltd. — 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 MRS. JUSTICE MARY JOSEPH

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WEDNESDAY, THE 22ND DAY OF NOVEMBER 2023 / 1ST AGRAHAYANA, 1945

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MACA NO. 313 OF 2023

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AGAINST THE AWARD DATED 16.06.2022 IN O.P(M.V) NO.1546/2017 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM

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APPELLANT/PETITIONER:

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RAHUL RAJ @ RAHUL,
AGED 25 YEARS,
S/O.RAJU M.E, KUNNUVETTUMUKALIL HOUSE,
KAVUMBADOM BHAGOM, PEROOR VILLAGE AND POST,
ETTUNMANOOR, KOTTAYAM, PIN – 686 637
BY ADV. SRI.JOSSY KURIAN

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RESPONDENT/2ND RESPONDENT:

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THE NEW INDIA ASSURANCE COMPANY LIMITED,
DIVISIONAL OFFICE, COLLECTORATE P.O.
KOTTAYAM - 686 002
REPRESENTED BY ITS DIVISIOANL MANAGER.
BY ADV SRI.PMM.NAJEEB KHAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 22.11.2023, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

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M.A.C.A.No.313 of 2023

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JUDGMENT

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Dated this the 22^nd day of November, 2023

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The appeal on hand is originated from an award passed by Motor Accident Claims Tribunal, Kottayam (for short ‘the Tribunal’) in O.P.(M.V.) No.1546/2017, on 16.06.2022. The appellant is the petitioner before the Tribunal. He seeks for modification of the compensation stood awarded by the Tribunal by way of enhancement, for the reason that it is unjust, inadequate and unreasonable.

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For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondent No.2 in accordance with their status in the Original Petition.

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As per the averments in the Original Petition, the motor accident in question was occurred at about 7 p.m on 20.09.2015, when a Santro Car bearing Registration No.KL-05-AC-6459 hit against a Motorcycle

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M.A.C.A.No.313 of 2023

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bearing Registration No.KL-05-AL-397 ridden by him through Kottayam-Changanacherry M.C road. He sustained serious injuries due to the rash and negligent driving of the Santro Car by it’s driver, who was arrayed as the 3^rd respondent in the Original Petition. A sum of ₹4,00,000/- was claimed as compensation from all the respondents, jointly and severally. The respondents include the registered owner, the insurer and the driver of the offending Santro car and all of them were alleged as liable jointly and severally.

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Notice was issued to all respondents. Respondents 1 and 3 though served with notice, did not turn up to contest the Original Petition and therefore, were declared as ex parte by the Tribunal. 2^nd respondent filed written statement admitting insurance coverage for the Santro Car bearing Registration No.KL-05-AC-6459 as on date of the motor accident. The motor accident was contended as occurred due to collision of the two vehicles and the compensation, excessive and without any basis.

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M.A.C.A.No.313 of 2023

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The claims of the petitioner regarding the age, the occupation, the monthly income, the nature of the injuries sustained and the treatment undergone, the period of hospitalisation and the disability suffered were disputed. Compensation claimed was also disputed for it’s

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exorbitance and lack of basis.

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The Original Petition above was tried alongwith another Original Petition filed by a co-injured in the motor accident as OP(MV) No.1547/2017. Evidence was adduced in common. Medical evidence with reference to the petitioner herein consists of Exts.A5, A6 and Ext.X1. Ext.A5 is a medical certificate, A6 is a discharge card, A7 series are medical bills and Ext.X1 is a certificate issued by the Medical Board certifying his disability as 11.2%.

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Based on the documents relating to the criminal case registered with reference to the motor accident in question and marked in evidence, the Tribunal found that the motor accident in question was occurred due to the rash and negligent driving of the Santro Car bearing

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M.A.C.A.No.313 of 2023

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Registration No.KL-05-AC-6459 by the 3^rd respondent. The Tribunal also found that the petitioner had sustained fracture of shaft of left femur and lacerated wounds on various parts of his body and had undergone interlocking nailing as a procedure of treatment. He was also found treated as in-patient for a period of 13 days. On the basis of the above evidence, the Tribunal arrived at a sum of ₹3,19,632/- as the total compensation payable to the petitioner. It directed the 2^nd respondent, the insurer of the Santro Car to deposit the sum with interest at the rate of 6% per annum from the date of filing of the Original Petition till the date of deposit alongwith proportionate costs.

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It is found that despite the evidence come on record from the side of the petitioner, the Tribunal awarded ₹1,500/-, ₹2,000/-, ₹3,250/-, ₹25,000/- and ₹5,000/- as compensation respectively towards transportation expenses, extra nourishment, bystander expenses, pain and sufferings and loss of amenities and

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M.A.C.A.No.313 of 2023

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discomforts. According to the learned counsel, interference is warranted since the compensation stood awarded under the above heads are inadequate and disproportionate to the sufferings of the petitioner.

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The modification sought for being justifiable, this Court is inclined to interfere with the impugned award. ₹5,000/- each is awarded as compensation towards transportation expenses and extra nourishment and ₹7,000/-, towards bystander expenses. The compensation stood awarded towards pain and suffering is also enhanced to ₹50,000/- and that towards loss of amenities and discomforts in life, to ₹30,000/-.

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The learned counsel for the petitioner also sought for enhancement of the compensation towards permanent disability, suffered by him due to the motor accident. It is found on a perusal of the impugned award that the percentage of permanent disability assessed by the Medical Board itself was considered by the Tribunal. The learned counsel also urged that Tribunal is erred in

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M.A.C.A.No.313 of 2023

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not awarding compensation for loss of earning. But, it is noticed from the First Information Statement lodged to register the crime that the petitioner was stated therein as a student. There was no reference in the FIS that the injured was working as a catering worker at the relevant time. Therefore, this Court is declined to award compensation towards loss of earning as canvassed by the learned counsel for the petitioner. Compensation was rightly declined by the Tribunal.

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Compensation for permanent disability was calculated by the Tribunal by taking 11.2% as the permanent disability of the petitioner based on Ext.X1. The multiplier has been correctly taken as ‘18’ on the basis of the age of the petitioner, considered by the Tribunal.

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Though an argument was advanced to enhance the monthly income, this Court is declined to do so for the reason that inspite of the fact that the petitioner was a student, the Tribunal has taken ₹11,000/- for assessing

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M.A.C.A.No.313 of 2023

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the compensation payable under that head. Therefore, the enhancement sought is only to be discarded and this Court do accordingly.

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The learned counsel pointed out that the rate of interest ordered by the Tribunal for the compensation arrived at is 6% and it being low, interference is required to enhance it. True that, the Tribunal has ordered 6% as the rate of interest and it is too low when compared to the rate of bank interest prevalent at the relevant time of the motor accident. Therefore, this Court finds it appropriate to enhance it to 7.5% and thus the petitioner will be entitled to get interest at that rate for compensation originally stood awarded by the Tribunal.

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In the above manner of calculation afresh, the petitioner will get ₹60,250/- [₹3,500/- + ₹3,000/- + ₹3,750/- + ₹25,000/- + ₹25,000/-] (Rupees Sixty thousand two hundred and fifty only) as additional compensation, which amount will also carry interest at the

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M.A.C.A.No.313 of 2023

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rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation.

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2^nd respondent shall pay the additional compensation now arrived at with interest rate fixed by this Court and the original compensation stood awarded by the Tribunal with the modified rate of interest and costs (after adjusting amount if any already paid) within a period of two months from the date on which a certified copy of this judgment is received. The disbursal of the amount shall be in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019.

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M.A.C.A stands allowed accordingly.

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Sd/- MARY JOSEPH

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JUDGE

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NAB

Rahul Raj @ Rahul v. the New India Assurance Company Ltd.

Case brief

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Rahul Raj @ Rahul v. the New India Assurance Company Ltd.

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