Allowed

Pankajakshan @ Panken.a.K. v. Mahin Ali

Kerala HC21 Nov 2023MACA/568/2013

Case brief

AI extract

What is this about?

The High Court allowed the appellant's appeal against the Motor Accidents Claims Tribunal award. The Court modified the compensation by correcting the monetary value, extending the calculation period for loss of earning, and increasing amounts for disability, pain, and suffering, awarding a total additional sum of Rs. 1,11,500/- with interest.

What did the court decide?

Additional compensation of Rs. 1,11,500/– along with interest at 7.5% per annum to be paid by the insurer.

Pankajakshan @ Panken.a.K. Vs Mahin Ali — Insurance | 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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TUESDAY, THE 21ST DAY OF NOVEMBER 2023 / 30TH KARTHIKA, 1945

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MACA NO. 568 OF 2013

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AGAINST THE AWARD IN OPMV 277/2005 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL, MUVATTUPUZHA DATED 28.05.2012

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APPELLANT/PETITIONER:

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PANKAJAKSHAN @ PANKEN.A.K.
AGED 49 YEARS
S/O. KUNJUTTY A.P., RESIDING AT ALACKAL HOUSE,
THAZHUVANAKUNNU, PERUMAKANDOM, KALLOOR,
KALLOORKADU.

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BY ADVS.SMT.ANEY PAUL
 SRI.PHILIP J.VETTICKATTU

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RESPONDENTS/RESPONDENTS:

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*1MAHIN ALI
S/O ABDULLA ALAVI, PALLIPATTU HOUSE,
PEZHAKAPILLY, MUVATTUPUZHA, PIN:686 661. (ORDER
DATED 22/07/2019 TO DELETE RESPONDENT NO:1 FROM
PARTY ARRAY IS SET ASIDE AS PER ORDER DATED
15.02.2023 IN MACA 568/2013)
2ANOOP
S/O KUTTAPPAN, VANDANAICKAL HOUSE, MANJALLOOR
VILLAGE, KAPPU KARA, MATTUPARA, MADAKKATHANAM
P.O., THODUPUZHA, PIN:685 584.
3THE BRANCH MANAGER
THE ORIENTAL INSURANCE CO. LTD., MUVATTUPUZHA,
PIN:686 661.
R3 BY ADV.SRI.VPK.PANICKER, SC

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 21.11.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

MACA No. 568 of 2013

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JUDGMENT

Dated this the 21^st day of November, 2023

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The appeal on hand is directed against an award passed by Motor Accidents Claims Tribunal, Muvattupuzha (for short ‘the Tribunal’) in O.P.(MV) No.277/2005. 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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The Tribunal has awarded a sum of `1,43,000/- as compensation payable in favour of the petitioner and ordered to pay interest at the rate of 8% per annum from the date of filing of the original petition till the date of realisation. Proportionate cost was also ordered. 3^rd respondent, the insurer of the offending vehicle was also directed to deposit the

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MACA No. 568 of 2013

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compensation amount with interest and cost in favour of the petitioner and also permitted it to have recovery of the same from the 1^st respondent who is the insured of the vehicle. Aggrieved by the quantum of compensation stood awarded by the Tribunal, petitioner has approached this Court in the appeal on hand.

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Before the Tribunal, Exts.A1 to A16 were marked on the side of the petitioner. The doctor who issued Ext.A9 certificate was examined as PW1. The certificate of insurance issued in respect of the offending vehicle, was marked in evidence by the respondent as Ext.B1. On the basis of the evidence on record, the Tribunal found the 2^nd respondent, the driver of the autorickshaw bearing Registration No.KL-7Q4962, for rash and negligent in driving. The Tribunal also found that the petitioner is entitled to get compensation from the respondents in view of the injuries established by evidence as sustained by him in the motor accident. The Tribunal also arrived at `1,43,000/- as the compensation payable.

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MACA No. 568 of 2013

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`2,500/- was taken by the Tribunal as the monthly

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income of the petitioner on a notional basis. It is contended by the learned counsel that the driving licence of the petitioner was marked in evidence as Exts.A12. But the Tribunal without placing reliance on it, fixed the monthly income as `2,500/notionally. According to her, the Tribunal ought to have fixed a higher sum as the monthly income relying on Ext.A12. The learned counsel also projected his grievance against fixation of only six months for calculation of compensation for loss of earning. According to the petitioner, the Tribunal ought to have considered a long term for awarding compensation for loss of earning having due regard to the serious nature of the injuries, the duration of the treatment and procedures undergone during the course of the treatment disclosed from Exts.A7, A8 and A9. According to her, the Tribunal did not apply its mind to the evidences relied on by the petitioner while fixing compensation under the various heads. Accordingly she seeks for modification of the compensation. The learned counsel has

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MACA No. 568 of 2013

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contended furthermore that the percentage of disability certified in Ext.A14 was taken into consideration by the Tribunal, but the calculation being based on `2,500/- fixed as the monthly income notionally, the compensation payable towards disability has fallen disproportionate. Thus calculation based on a modified sum as monthly income is sought.

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The learned counsel for the 3^rd respondent has contended on the contrary that the Tribunal has arrived at the compensation payable fully relying on the evidence on record. Therefore, interference is uncalled for.

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The petitioner claimed to be a driver by profession. His driving licence was marked in evidence as Ext.A12. Since no objection was raised against by the learned counsel for the respondent, there was every reason for relying on it while fixing the monthly income. But, the Tribunal, without stating any reason, discarded it and fixed

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the monthly income as `2,500/- on a notional basis. The motor accident being occurred in the year 2004, this Court

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MACA No. 568 of 2013

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finds every justification in basing a higher sum as monthly income. Accordingly, `5,000/- is considered. From Exts.A7, A8 and A9 it is found that the petitioner has sustained right hemispheric subarachnoid hemorrhage with right frontal contusion, multiple punctate hemorrhages involving both cortex, brain stem compression with interhemispheric bleed and fracture of left parietal bone. CT scan, when repeated, showed minimal increase in contusion and oedema and therefore he was ventillated. X-ray showed bilateral haziness suggestive of aspiration. He was electively ventilated in CMV mode and antioedema, antibiotics and anticonvulsants were started. He was gradually weaned off ventilator and similar medication were administered. He was gradually improved and subjected to physiotherapy. His chest infection was taken care of with adequate antibiotics. He was gradually mobilised. At the time of discharge, he was able to walk with support and his comprehension was good. In Ext.A9 the certificate issued by the doctor who had

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MACA No. 568 of 2013

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treated him, his treatment was reported continued till 2007. The permanent disability of the petitioner was assessed by the Medical Board and certified as 5% in Ext.A14. The above aspects, if were duly taken care of, the compensation calculated would not have been inadequate as rightly canvassed by the learned counsel for the petitioner. It is noticed that the Tribunal has awarded only a lumpsum as compensation towards transportation expenses, extra nourishment and damages to clothing. Undoubtedly, the Tribunal has gone wrong in doing so.

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This Court finds justification in taking a period of 12 months’ for calculation of compensation for loss of earning and thus 60,000/- (5,000/- x 12) is arrived at. When 15,000/- stood awarded by the Tribunal as compensation is adjusted against, the petitioner will get 45,000/- (60,000/- - 15,000/-), as additional

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compensation. As compensation towards transportation expenses, extra nourishment, bystander expenses and

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MACA No. 568 of 2013

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damages to clothing, 4,000/-, 5,000/-, 5,000/- and 1,000/- respectively are awarded and thus 15,000/(4,000/- + 5,000/- + 5000/- + 1000/-) is arrived at as the total sum payable as compensation. 6000/- stood awarded by the Tribunal in lumpsum when adjusted against, the petitioner will get 9,000/- (15,000/- - 6,000/-) as additional compensation. Similarly, the compensation payable towards pain and suffering and loss of amenities and enjoyments in life are also modified to 40,000/- and 25,000/- respectively. The compensation stood awarded by the Tribunal when adjusted against the sum now modified, the petitioner will get 25,000/- and 13,000/- as additional compensation under those heads. Compensation for disability when calculated afresh based on the modified monthly income, 42,000/- (5,000/- x 12 x 14 x 5/100) is arrived at. 22,500/-, stood awarded by the Tribunal as compensation, when adjusted against, the petitioner will get `19,500/- as additional compensation.

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MACA No. 568 of 2013

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In the above manner of calculation afresh, petitioner

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will get 1,11,500/- (45,000/- + 9,000/- + 25,000/- +

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13,000/- + 19,500/-) (Rupees one lakh eleven thousand and five hundred only) as additional compensation and interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of deposit. 3^rd respondent being the insurer shall pay the additional compensation with interest accrued on it at the rate fixed as above within two months from the date of receipt of a certified copy of this judgment in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. 3^rd respondent is also entitled to have recovery of the compensation amount, after it being deposited in favour of the petitioner, from the 1^st respondent.

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Sd/-

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MARY JOSEPH JUDGE

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MJL

Pankajakshan @ Panken.a.K. v. Mahin Ali

Case brief

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Pankajakshan @ Panken.a.K. v. Mahin Ali

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