Allowed

Parameswari S v. Shriram General Insurance Co. Ltd.

Kerala HC23 Nov 2023MACA/3699/2022

Case brief

AI extract

What is this about?

The High Court allowed the motor accident claim appeal, enhancing the compensation awarded by the Tribunal. The Court modified the monthly income calculation, adjusted the permanent disability percentage from the Tribunal's 4% to 8%, and increased compensation for loss of amenities, extra nourishment, bystander expenses, and general damages.

What did the court decide?

The sole respondent is directed to pay an additional compensation of Rs. 1,91,260 with interest at 7.5% per annum.

Parameswari S Vs Shriram General Insurance Co. Ltd. — 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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THURSDAY, THE 23RD DAY OF NOVEMBER 2023 / 2ND AGRAHAYANA, 1945

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MACA NO. 3699 OF 2022

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AGAINST THE AWARD DATED 07.05.2022 IN OP(MV) NO.736 OF 2019 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL-III, PALAKKAD

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APPELLANT/PETITIONER:

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PARAMESWARI S.,
AGED 61 YEARS,
W/O SETHUMADHAVAN, MUNEEF APARTMENT, ARADHANA ROAD,
MANNARKKAD P.O., PALAKKAD DISTRICT-678582.
NOW RESIDING AT KARNAKIYAMMA STREET,
HOSE NO. 22, PALAKKAD.

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BY ADV.SRI.BABY MATHEW

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RESPONDENT/2ND RESPONDENT:

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SHRIRAM GENERAL INSURANCE CO. LTD.,
REP. BY ITS BRANCH MANAGER, E8, EPIP, RIICO INDUSTRIAL
AREA, SITAPURA, JAIPUR, RAJASTHAN -302022
(INSURER OF AUTORICKSHAW BEARING REG. NO. KL/50/D/0113,
POLICY NO 10003/31/18/000874, VALID FROM 07/04/2017 TO
06/04/2018)
COMMUNICATION ADDRESS
SHRIRAM GENERAL INSURANCE CO. LTD, 2ND FLOOR, AZAD TOWER,
AMMAN KOVIL CROSS ROAD, COCHIN-35,
GB ROAD, PALAKKAD, KERALA-678001

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BY ADV. SRI.P. JACOB MATHEW

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
23.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA No. 3699 of 2022

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JUDGMENT

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Dated this the 23^rd day of November, 2023

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The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal-III, Palakkad (for short ‘the Tribunal’) on 07.05.2022 in O.P(M.V) No.736/2019. 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 respondent No.2 in accordance with their status in the Original Petition.

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In the appeal on hand the learned counsel for the petitioner seeks for enhancement of compensation for the reason that the monthly income which was based by the Tribunal for calculation of compensation is meagre. According to him, the Tribunal took only `10,000/- as the monthly income of the petitioner and it is not a reasonable sum when viewed with reference to the cost of living and price index prevailing in the

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MACA No. 3699 of 2022

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year 2018 when the motor accident in question was occurred. The learned counsel urged that though the petitioner claimed to be a tailor by profession and sustained comminuted fracture of both bones of left leg, the Tribunal failed to award compensation for loss of earning. According to him the Tribunal has awarded only 5,000/- as compensation towards loss of amenities and enjoyments in life. According to him the compensation stood awarded is disproportionate to the injuries sustained by the petitioner, the treatment procedures undergone by her and the duration of treatment. According to him, reasonable compensation was not awarded by the Tribunal towards bystander expenses and extra nourishment. According to him 10,000/- stood awarded as compensation towards transportation expenses is also inadequate. According to the learned counsel, the permanent disability of the petitioner was assessed by the Tribunal as 4%, despite the factum that in Ext.A13 an individual doctor has certified 16% as her disability. According to the learned counsel, the compensation stood

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MACA No. 3699 of 2022

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awarded under that head needs to be re-calculated by taking a higher percentage as her disability.

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According to the learned counsel for the sole respondent, the monthly income taken by the Tribunal being a reasonable sum, is only to be maintained. The learned counsel for the respondent submitted that compensation stood awarded by the Tribunal being just, reasonable and proportionate to the injuries sustained by her, interference is totally unwarranted. According to him the doctor who had examined the petitioner and certified her permanent disability as 16% was not examined and therefore the Tribunal is justified in opting to consider 4% as her disability and calculating compensation on its basis.

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It is noticed that the motor accident in question was occurred in the year 2018. The petitioner claimed to be a tailor by profession and therefore, there is every reason to consider `11,500/- as her monthly income. The petitioner had sustained comminuted fracture of both bones of left leg and had undergone Open Reduction and Internal Fixation. Therefore the Tribunal is not justified in failing to award compensation towards loss of

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MACA No. 3699 of 2022

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earning. Petitioner had successfully established before the Tribunal that she had undergone two spells of hospitalization. Therefore, there is justification in awarding compensation for loss of earning for 8 months. Thus, 92,000/- (11,500x8) is arrived at.

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Ext.A9 is the accident register cum wound certificate. Exts.A10, A11 and A14 are discharge summaries on the basis of which, petitioner claimed to be under inpatient treatment for three different spells. A perusal of Ext.A11 would reveal that the treatment availed by the petitioner thereunder was for abdominal pain and not related to the motor accident. As per Exts.A10 and A14 the petitioner had undergone inpatient treatment for 9 days and there is no reason to doubt those. Petitioner sustained comminuted fracture of both bones of left leg and had undergone Open Reduction and Internal Fixation as a procedure of treatment. The photographs of the petitioner was marked in evidence as Ext.A19 series. It is found on a perusal of those that swelling persists in her left leg.

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MACA No. 3699 of 2022

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Ext.A13 is a certificate issued by an individual doctor who examined her after the treatment. Her permanent disability was certified as 16%. It is found from Ext.A10 that petitioner was subjected to Open Reduction and Internal Fixation with 7 hole DCP, remanipulation of fracture of distal tibia, relocking and bone grafting. In the discharge certificate issued as Ext.A10, valgus deformity on distal 4^th of left leg and tenderness on lateral malleolus were reported.

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True that Ext.A13 was issued by an individual doctor. In the course of examination of the petitioner, he has noted multiple surgical scars on left leg and oedema on left knee joint, wasting and weakness of right leg muscles, grade IV power of muscles, sensory disturbances over the scar area and rotation of movements of left knee and reported those in Ext.A13. Some of the reasons tally with the factums already reported in the discharge summary marked in evidence as Ext.A10. Therefore, though Ext.A13 was not proved by examining the doctor who issued it, this Court is inclined to consider 8% as the disability of the petitioner and to re-calculate the compensation.

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MACA No. 3699 of 2022

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As compensation towards extra nourishment, 6,000/stood awarded by the Tribunal being low, is modified to 10,000/- and therefore, the petitioner will get 4,000/(10,000/- - 6,000/-) as additional compensation. As compensation towards bystander expenses, the sum stood awarded being 300/- per day for 13 days, this Court is inclined to modify it to 8,000/-. Therefore, the petitioner will get 4,100/- (8,000/- - 3,900/-) as additional compensation.

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As compensation towards loss of amenities and enjoyments in life, 5,000/- stood awarded by the Tribunal being too low, this Court awards 40,000/- and therefore, the petitioner will get 35,000/- (40,000/- - 5,000/-) as additional compensation. When compensation for permanent disability is calculated afresh with the modified monthly income and the disability as 8%, 99,360/- (11,500/- x 12 x 9 x 8/100) is arrived at. 43,200/- stood awarded by the Tribunal when adjusted against that sum, the petitioner will get 56,160/(99,360/- - `43,200/-) as additional compensation.

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MACA No. 3699 of 2022

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In the above manner of calculation afresh, the

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petitioner will get 1,91,260/- (4,100/- + 4,000+ 35,000/+92,000/-+ 56,160/-) (Rupees One Lakh Ninety One Thousand Two Hundred and Sixty only) as additional compensation, which amount 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. The sole respondent, who was the 2^nd respondent before the Tribunal shall pay the additional compensation with interest accrued on it at the rate fixed by this Court 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. The sole respondent is also exonerated from paying interest for 108 days, being the delay occurred in filing the appeal on hand.

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MACA stands allowed accordingly.

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Sd/- MARY JOSEPH

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JUDGE

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MJL

Parameswari S v. Shriram General Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

Parameswari S v. Shriram General Insurance Co. Ltd.

Case brief

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What did the court decide?

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