Allowed

Joby C.J. v. the Oriental Insurance Co.Ltd

Kerala HC10 Oct 2023MACA/510/2012

Case brief

AI extract

What is this about?

In this Motor Accident Claim Appeal, the High Court of Kerala allowed the appeal and enhanced the compensation awarded by the Motor Accidents Claims Tribunal. The Court fixed the appellant's monthly income at Rs.4000/- and accepted the 15% disability, granting an additional Rs.1,01,320/- under various heads including physical disability, loss of earnings, and pain and suffering.

What did the court decide?

Modified by granting additional compensation of Rs.1,01,320/- along with interest and proportionate cost.

Joby C.J. Vs the Oriental Insurance Co.Ltd — Insurance | Kerala HC (2023)

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MACA NO. 510 OF 2012

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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.
TUESDAY, THE 10TH DAY OF OCTOBER 2023 / 18TH ASWINA, 1945

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MACA NO. 510 OF 2012

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AGAINST THE AWARD DATED 17.01.2022 IN OP(MV)NO.1944/2005 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL,PERUMBAVOOR

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APPELLANT/PETITIONER:

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JOBY C.J.
S/O.JOSE, CHACKALACKAL HOUSE, MAYILPADAM KARA, NEAR
THRISSUR MUSEUM, THRISSUR.
BY ADVS.
SRI.REJI GEORGE
SMT.ANUPAMA JOHNY
SRI.GOPAKUMAR G. ALUVA

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RESPONDENT/RESPONDENT NO.3:

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THE ORIENTAL INSURANCE CO.LTD
BRANCH OFFICE, DEEPTHI BUILDING, PALLIMUKKU,
P.B.NO.2372, KOCHI-682 016.

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BY ADV SMT.A.SREEKALA

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 10.10.2023, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

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MACA NO. 510 OF 2012

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ZIYAD RAHMAN, A.A, J

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M.A.C.A No. 510 of 2012

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Dated this the 10th day of October, 2023

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JUDGMENT

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The appellant is the petitioner in OP(MV)No.1944/2005 on

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the file of the MACT, Perumbavoor.

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The said claim petition was submitted by the

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appellant seeking compensation for the injuries sustained to

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him in a motor accident that occurred on 18.06.2005. The

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accident occurred when he was walking through the road, he

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was hit by a lorry bearing Registration No.KL-17-A-8721. The said vehicle was driven by the first respondent in the claim petition. The second respondent in the claim petition was the

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owner, and it was insured with the third respondent in the claim petition, the sole respondent in this appeal. Consequent

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to the accident, the appellant sustained serious injuries, and he availed treatment at San Joe Hospital at Perumbavoor initially

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and later at Jubilee Mission Medical College Hospital at

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MACA NO. 510 OF 2012

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Thrissur. According to him, he was aged 25 years at the time

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of the accident and was working as an Electronic service technician with a monthly income of Rs.4000/-. The compensation claimed was Rs.1,70,000/-.

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The owner and driver of the vehicle remained

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exparte. The respondent/Insurance Company alone contested the matter by filing a written statement, wherein they admitted

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the coverage of policy in respect of the said vehicle but disputed the liability on various grounds. The quantum of

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compensation was also disputed by them.

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The evidence in this case consists of oral testimony of PW1 and Exts.A1 to A13 from the side of the appellant. No evidence was adduced from the side of the respondent.

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After appreciating the materials placed on record,

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the Tribunal came to the conclusion that the accident occurred

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due to the negligence on the part of the driver of the vehicle

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and being the insurer of the said vehicle, the respondent

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herein was held liable to pay compensation. The quantum of

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MACA NO. 510 OF 2012

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compensation was fixed as Rs.1,14,909/- and the said amount

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was directed to be deposited by the respondent -Insurance Company with interest at the rate of 8% per annum from the date of petition till realisation. This appeal is submitted by the

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appellant in such circumstances seeking enhancement of compensation.

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Heard Smt.Anupama Johny, learned counsel

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appearing for the appellant and Smt.A.Sreekala, learned counsel for the respondent.

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The main contention put forward by the learned counsel for the appellant is with regard to the inadequacy of

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the compensation awarded under the head of physical disability. The said challenge was based on two grounds. One is related to the monthly income, and the other is regarding the percentage of disability as decided by the Tribunal. Even though the appellant claimed the monthly income as Rs.4000/-, the Tribunal considered it as Rs.3000/- and the compensation

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was calculated accordingly. After considering the materials

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MACA NO. 510 OF 2012

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placed on record, including the date of the accident, I am of the view that the monthly income of Rs.3000/- is on the lower side. The appellant claims to be a person working as an Electronic service technician. In Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co. Ltd [(2011) 13 SCC 236], the Hon’ble Supreme Court has fixed a monthly income of an ordinary worker as Rs.4500/-, even in the absence of any evidence, with respect to an accident occurred in the year 2004. Therefore, under no circumstances the monthly income of Rs.4000/- as claimed by the appellant can be treated as unreasonable. Therefore, the said monthly income has to be accepted, and it is ordered accordingly.

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The next element relates to the percentage of disability. To substantiate the percentage of disability, the appellant relies on Ext.A11 disability certificate, and the doctor who issued said certificate was examined. The Tribunal, after examining the said disability certificate and the deposition of PW1, came to the conclusion that the percentage of disability

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MACA NO. 510 OF 2012

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certified therein is on the higher side. Of course, a detailed discussion has been made in the award with respect to the same. However, the crucial aspect to be noted is that, in the deposition of PW1, the elements highlighted by the Tribunal as the discrepancies, are not seen mentioned, and no questions were put to PW1 at the instance of contesting respondent while he was cross examined. Therefore, since the assessment of the percentage of disability is something which is being done by the expert in the field, once the certificate is produced and the doctor who issued the certificate is examined in support of the same, under normal circumstances, the percentage of disability certified cannot be reduced except in cases were there are specific materials indicating any discrepancies in the assessment of the said doctor. In this case, although certain discrepancies are highlighted in the award, those aspects were not seen put to PW1 while he was in the witness box. Therefore, I do not find any justification for reducing the percentage of disability fixed in the said certificate. Therefore,

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MACA NO. 510 OF 2012

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the percentage of disability as certified in the certificate, which

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is 15%, has to be accepted, and it is ordered accordingly.

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Thus, while reassessing the compensation for

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permanent disability with a monthly income of Rs.4000/- and the percentage of disability of 15%, the amount receivable by the appellant under this head would come to Rs.1,22,400/(4000x12x17x15%). After deducting Rs.55,080/-, the amount already awarded by the Tribunal, the additional amount would come to Rs.67,320/-.

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Consequent to the revision of monthly income, the appellant would be entitled to an additional amount under the head of loss of earnings. The Tribunal found that the appellant must have been under complete bed rest for a period of three

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months. However, the compensation for loss of earnings granted was only Rs.8000/- as the compensation he claimed under the said head was only Rs.8000/- Since the Tribunal fixed the monthly income as Rs.3000/-, the proper amount

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should have been Rs.9000/- even as per the award. But it was

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MACA NO. 510 OF 2012

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limited to Rs.8000/-, in tune with the claim in this regard. However, considering the fact that the Tribunal has already fixed a monthly income and arrived at the specific conclusion that the appellant was prevented from carrying out employment for a period of three months, the award under the said head should not have been limited based on the claim put forward. In this appeal, the monthly income is fixed as Rs.4000/-. Therefore, I deem it appropriate to fix the compensation under this head as Rs.12,000/- (4000 X 3) and as it represents the actual loss sustained by the appellant, which need not be limited based on the amount claimed, and it is ordered accordingly. Thus, the additional compensation under this head would come to Rs 4,000/-

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When moving on the other heads, it can be seen that the amount awarded under the head of pain and suffering is only Rs.12,000/- The petitioner had undergone inpatient treatment for 35 days and had sustained very serious injuries, including a crush injury. Therefore, taking note of the

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MACA NO. 510 OF 2012

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aforesaid aspect, I deem it appropriate to grant a further sum of Rs.18,000/- under the said head. Similarly, considering the nature of injury and physical disability arising therefrom, the amount of Rs.8000/- awarded by the Tribunal under the head of loss of amenities appears to be on the lower side. In my view, a further sum of Rs.12,000/- can be granted under this head, and it is ordered accordingly. Thus, the total additional compensation receivable by the appellant is fixed as Rs.1,01,320/- (67320 + 4000+ 18000+12000).

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Accordingly, in the light of the aforesaid finding and observations, the award dated 17.01.2011 in

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OP(MV)No.1944/2005 passed by the Motor Accidents Claims

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Tribunal, Perumbavoor is hereby modified by granting an additional compensation of Rs.1,01,320/- (Rupees one lakh one thousand three hundred and twenty only) and the respondent/Insurance Company shall deposit the said amount along with interest at the rate as ordered by the Tribunal and proportionate cost within a period of three months from the

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MACA NO. 510 OF 2012

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date of receipt of a copy of this judgment. As the appeal was

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submitted with a petition to condone the delay of 261 days, it is clarified that the Insurance Company shall be entitled to exclude the said period while computing the interest on the additional compensation.

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This appeal is disposed of.

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sd/-

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ZIYAD RAHMAN, A.A, JUDGE

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R.AV

Joby C.J. v. the Oriental Insurance Co.Ltd

Case brief

What is this about?

What did the court decide?

Joby C.J. v. the Oriental Insurance Co.Ltd

Case brief

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What did the court decide?

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