Allowed

Devasia @ Kunjumon v. Prasanth P.M.

Kerala HC10 Mar 2023MACA/751/2013

Case brief

AI extract

What is this about?

The Kerala High Court allowed a motor accident appeal filed against an awards for inadequacy of compensation despite the amount exceeding the original claim. The court recalculated loss of earning, injury percentage, and other heads, enhancing the total compensation by Rs. 88,921 with interest.

What did the court decide?

Enhanced compensation of Rs. 88,921 granted with interest at 7.5% p.a. Insurer directed to deposit the amount within two months.

Devasia @ Kunjumon Vs Prasanth P.M. — Motor Accident Claims | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

¶2

THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 10THDAY OF MARCH 2023 / 19TH PHALGUNA,1944

¶3

MACA NO. 751 OF 2013

¶4

OPMV 1833/2008 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM

¶5

APPELLANT/PETITIONER:

¶6

DEVASIA @ KUNJUMON,
KAILATHIPARAMBU HOUSE, THOTTAKOM.P.O,
THALAYAZHAM, VAIKOM.

¶7

BY ADV SRI.A.K.HARIDAS

¶8

RESPONDENTS/RESPONDENTS:

¶9

1 PRASANTH P.M., PUTHANPARAMBIL, MARAVANTHURUTHU.P.O, VAIKOM.

¶10

2 PRASADKUMAR, VALIYATHENAMITTOM, UDAYANAPURAM.P.O, VAIKOM.

¶11

3 THE ORIENTAL INSURANCE CO.LTD., KOTTAYAM.

¶12

R3 BY ADV SRI.M.JACOB MURICKAN,SC

¶13

THISMOTORACCIDENTSCLAIMSAPPEALHAVINGBEENFINALLY
HEARDON03.03.2023,THECOURTON10.03.2023DELIVEREDTHE
FOLLOWING:

MACA 751 of 2013

J U D G M E N T

The claimant in OP(MV) No.1833 of 2008 on the file of the Motor Accidents Claims Tribunal, Kottayam, is the appellant herein. He is assailing the award on the ground of inadequacy of compensation.

¶18

On 12.04.2008, at 1.30 p.m., while the appellant was riding a motorcycle through Vaikom-Ernakulam road, KL-36/5075 auto rickshaw driven by the 1^st respondent in a rash and negligent manner, dashed against his motorcycle and he fell down and sustained injuries. He was taken to Government Hospital, Vaikom and from there, he was referred to the Medical College Hospital, Kottayam, for better treatment. He suffered serious injuries due to the accident and suffered disability also. He approached the Tribunal claiming compensation of Rs.1,50,000/-. Though the Tribunal awarded Rs.1,70,240/-, according to the appellant, it was not the just compensation that ought to have been awarded by the Tribunal. So, he filed this appeal.

¶19

The 1^st respondent was the Driver, the 2^nd respondent was the owner and the 3^rd respondent was the Insurer of the offending auto rickshaw. The accident, injuries and the Policy of the offending vehicle are not in dispute.

¶20

Before the Tribunal, PW1 was examined and Exts.A1 to A10

¶21

MACA 751 of 2013

¶22

¶23

were marked from the side of the appellant. Ext.X1 Disability Certificate was marked as Witness Exhibit. No oral or documentary evidence was adduced from the side of the respondents.

¶24

Now let us see whether the compensation awarded by the Tribunal warrants any interference.

¶25

Heard learned counsel Sri.A.K.Haridas appearing for the appellant and learned counsel Sri.Jacob Murickan appearing for the 3^rd respondent.

¶26

It is true that the Tribunal awarded compensation exceeding the claim of the appellant. Even then, according to the appellant, he is eligible to challenge that award, as it is not the just compensation that ought to have been awarded by the Tribunal. If the Tribunal finds that the injured claimant was eligible to get compensation exceeding the amount claimed, it ought to have been awarded, though it exceeds the claim. So according to the appellant, he is an aggrieved person, though the award amount exceeds the claim amount. He relied on the decision Nagappa v. Gurudayal Singh and Others [(2003) 2 SCC 274] to substantiate his contention. Based on that judgment, this Court is inclined to treat him as an aggrieved person, so as to entertain this appeal.

¶27

Now coming to the compensation awarded by the Tribunal. The appellant was a 52 years old Mason as on the date of accident. According

¶28

MACA 751 of 2013

¶29

¶30

to him, he was earning monthly income of Rs.9,000/- per month. But the Tribunal fixed his notional income @ Rs.4,000/-. A Mason may not be able to produce any document to prove his monthly income. Going by the decision Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951] , as the accident was in the year 2008, he was eligible to get his notional income fixed @ Rs.6,500/- per month. The Tribunal assessed his loss of earning for 7 months @ Rs.4,000/- per month. Since he is eligible to get his income fixed @ of Rs.6,500/- per month, for 7 month period, his loss of earning can be assessed as Rs.45,500/- (6,500 x 7). He was already paid Rs.28,000/- under that head. So, he is eligible to get the balance amount of Rs.17,500/- under the head ‘loss of earning’.

¶31

Ext.X1 Disability Certificate shows that the appellant suffered permanent disability of 16.83%. Ext.X1 Disability Certificate was issued by the Medical Board constituted by the Superintendent of Medical College Hospital, Kottayam. Without assigning any reason, the Tribunal took the disability of the appellant as 16% only. According to the appellant, the Tribunal ought to have taken the disability reported by the Medical Board as such. Since there is no reason to reduce the disability reported by the Medical Board, this Court is inclined to accept the disability of the appellant as 16.83%. The multiplier applicable is 11 as the appellant was 52 years old at the time of accident. Taking his

¶32

MACA 751 of 2013

¶33

¶34

monthly income @ Rs.6,500/-, the compensation for permanent disability can be assessed as Rs.1,44,401/- (6,500 x 12 x 11x16.83/100). He was already paid Rs.84,480/- towards permanent disability. So he is entitled to get the balance amount of Rs.59,921 as enhanced compensation towards permanent disability.

¶35

Towards pain and suffering, he was awarded only Rs.24,000/-. Considering the nature of injuries and period of hospitalisation, this Court is inclined to award Rs.6,000/- more under the head ‘pain and suffering’.

¶36

Towards loss of amenities, the appellant was awarded Rs.15,000/- by the Tribunal. Since he was a 52 years old man, and he suffered 16.83% permanent disability, it might have affected his future comforts in life. Considering that aspect, this Court is inclined to award Rs.5,000/- more towards loss of amenities.

¶37

Towards transportation expenses, the Tribunal awarded only Rs.2,500/-, though he produced Ext.A9 Taxi Bills for Rs.3,000/-. No reason is stated for not awarding the amount claimed, based on Ext.A9 Taxi Bills. So this Court is inclined to award Rs.500/- more towards transportation expenses.

¶38

The compensation awarded under all other heads seems to be reasonable and so it need not be interfered with.

¶39

MACA 751 of 2013

¶40

¶41

Head of claim	Amount awarded by the Tribunal	Amount awarded in appeal	Difference to be drawn as enhanced compensation
Loss of earning	Rs.28,000/-	Rs.45,500/-	Rs.17,500/-
Permanent disability	Rs.84,480/-	Rs.1,44,401/-	Rs.59,921/-
Pain and sufferings	Rs.24,000/-	Rs.30,000/-	Rs.6,000/-
Loss of amenities	Rs.15,000/-	Rs.20,000/-	Rs.5,000/-
Transportation expenses	Rs.2,500/-	Rs.3,000/-	Rs.500/-
Total			Rs.88,921/-

¶42

So the appellant is entitled to get enhanced compensation of Rs.88,921/- (17,500+59,921+5,000+6,000+500).

¶43

The 3^rd respondent-Insurer is found liable by the Tribunal to compensate the appellant and that finding is not under challenge. So the 3^rd respondent-Insurer is directed to deposit the enhanced compensation of Rs.88,921/- (Rupees Eighty Eight Thousand Nine Hundred and Twenty One only) in the bank account of the appellant, with interest @ 7.5% per annum, from the date of petition till the date of deposit (except 155 days of delay in filing the appeal), within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019

¶44

MACA 751 of 2013

¶45

¶46

and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund.

¶47

The appeal is allowed accordingly. No order as to costs.

¶48

Sd/-

¶49

SOPHY THOMAS JUDGE

¶50

DSV/07.03.2023.

Devasia @ Kunjumon v. Prasanth P.M.

Case brief

What is this about?

What did the court decide?

Devasia @ Kunjumon v. Prasanth P.M.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Cholamandalam Ms General Insurance Vs Rajan

Roy Jacob Vs Majeed @ Abdul Majeed

Dileep Vs Varghese.P.M

The New India Assurance Co. Ltd. Vs Joseph Mathew

Sureshkumar T.D. Vs Smt. Sara Mohammed

N.v.Asokan Vs Mrs.Sara Muhammed