Allowed

Narayanan v. Purushu

Kerala HC3 Mar 2023MACA/816/2013

Case brief

AI extract

What is this about?

An appeal challenging the inadequacy of compensation awarded for a motor accident injury. The court enhanced compensation for loss of earning, transportation, pain and suffering, extra nourishment, bystander expenses, and permanent disability, with the insurer directed to deposit the enhanced amount with interest.

What did the court decide?

The 2nd respondent (insurer) directed to deposit enhanced compensation of Rs.91,600/- with interest at 7.5% p.a. within two months.

Narayanan Vs Purushu — 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 SOPHY THOMAS

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FRIDAY, THE 3^RD DAY OF MARCH 2023 / 12TH PHALGUNA, 1944

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MACA NO.816 OF 2013

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AGAINST THE ORDER/JUDGMENT IN OPMV 1397/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA

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APPELLANT/PETITIONER:

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NARAYANAN S/O.GOVINDAN, KOOTTALAPARAMBIL HOUSE, NALUKETTU-ILLAMCHERY DESOM, KORATTY KIZHAKKUMURI VILLAGE NALUKETU P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH

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RESPONDENTS/RESPONDENTS 1 & 2:

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1 PURUSHU S/O.BALAN, POOKILAPETTY HOUSE, SHIVAJIPURAM, THURAVOOR P.O., ALUVA TALUK-683 586. 2 NEW INDIA ASSURANCE CO.LTD., SN SHOPPINT COMPLEX, ALUVA ROAD, ANGAMALI P.O.683 512. BY ADV SRI.P.MURALEEDHARAN SMT.MARGRET MAUREEN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.02.2023, THE COURT ON 03.03.2023 DELIVERED THE FOLLOWING:

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MACA No.816 of 2013

SOPHY THOMAS, J.

MACA No.816 of 2013

Dated this the 3^rd day of March, 2023

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J U D G M E N T

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This appeal has been preferred by the claimant in OP (MV) No.1397 of 2007 on the file of Motor Accidents Claims Tribunal, Irinjalakuda, challenging inadequacy of the compensation awarded by the Tribunal.

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On 21.07.2007 at about 9.30 a.m while the appellant

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was pillion riding a motorcycle, KL-07/AZ 4477 motorcycle ridden by the 1^st respondent in a rash and negligent manner dashed against his motorcycle, and he was thrown down and sustained injuries such as chip fracture right calcaneum, heel pad avulsion, lacerated wound right ankle with exposed achilles tendon etc. He was admitted and treated in hospital for 35 days. He was a manual labourer aged 54, earning monthly income of Rs.5,000/-. Though he approached the Tribunal claiming compensation of Rs.2 lakh, the Tribunal awarded only Rs.96,445/- and hence this appeal.

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MACA No.816 of 2013

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1^st respondent was the owner cum rider of the

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offending motorcycle and 2^nd respondent was its insurer. 3^rd respondent was the insurer of the motorcycle in which the appellant was travelling. The 1^st respondent remained ex parte. The 2^nd respondent/insurer of the offending motorcycle admitted the accident, injuries and the policy. But, according to them, the accident occurred due to the negligence of the rider of the motorcycle in which the appellant was travelling. The 3^rd respondent admitted the policy of the motorcycle in which the appellant was travelling. But, according to them, since the accident occurred due to the negligence of the 1^st respondent, they have no liability to compensate the injured.

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Before the Tribunal, PW1 was examined and Exts.A1 to A11 and B1 and B2 were marked.

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Now let us see whether the compensation awarded by the Tribunal was 'just compensation'?

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Heard learned counsel Sri.P.V Baby, appearing for the appellant and Sri.P.Muraleedharan, appearing for the 2^nd respondent.

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MACA No.816 of 2013

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According to the appellant, he was a 54 year old casual labourer earning monthly income of Rs.5,000/-. But, the Tribunal fixed his notional income @ Rs.2,000/-. Though he claimed Rs.60,000/- towards loss of earning, nothing was awarded by the Tribunal. He suffered chip fracture right calcaneum, heel pad avulsion and a deep lacerated wound on right ankle exposing achilles tendon. There was hospitalisation for 35 days. So, the Tribunal went wrong in not awarding a single pie towards loss of earning.

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Going by the decision Ramchandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited (AIR 2011 SC 2951), in the year 2007, the appellant was eligible to get his notional income fixed @ Rs.6,000/-. But, his claim was only Rs.5,000/-. So, his income could have been fixed at that rate. Considering the nature of injuries suffered, especially heel pad avulsion, at least for five months, he might not have been able to do any manual labour. So, he was eligible to get Rs.25,000/- under the head 'loss of earning' and this Court is inclined to award that amount.

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Towards transportation expenses, though the appellant claimed Rs.5,000/-, the Tribunal awarded only Rs.500/-. He

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MACA No.816 of 2013

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was admitted for 16 days in St.James Hospital, Chalakudy and thereafter he was admitted in Amrita Institute of Medical Sciences, for 19 days. He belongs to Thrissur and so, towards transportation expenses, this Court is inclined to award Rs.4,000/-. After deducting Rs.500/- already awarded by the Tribunal, he is eligible to get the balance Rs.3,500/-.

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Towards pain and suffering, though the claim was Rs.50,000/-, the Tribunal awarded only Rs.9,000/-. Since there was heel pad avulsion and deep injury on the right ankle exposing achilles tendon, with hospitalisation of 35 days, this Court is inclined to award Rs.6,000/- more under the head 'pain and suffering'.

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Towards extra nourishment, the Tribunal awarded Rs.3,500/-. Since the appellant was hospitalised for 35 days, this Court is inclined to award Rs.1,500/- more towards extra nourishment.

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For Bystander expenses also, the amount awarded by the Tribunal is on the lower side, as the appellant might have been under the help of a bystander for a considerable period since he had suffered heel pad avulsion and deep wound on right ankle. So, this Court is inclined to award Rs.2,000/-

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MACA No.816 of 2013

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more under the head 'bystander expenses'.

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The appellant suffered permanent disability of 13.53%, as seen from Ext.A9 disability certificate. Though the Tribunal accepted the disability of 13.53% as such, the income taken was only Rs.2,000/-. We have fixed his notional income @ Rs.5,000/- per month. When we assess the disability compensation taking his income as Rs.5,000/- and multiplier as 11 as he was aged 54, it would come to Rs.89,298/(5000x12x11x13.5/100). He was already paid Rs.35,719/towards permanent disability. So, he is eligible to get the balance amount of Rs.53,579/-.

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Head of claim (1)	Amount awarded by the Tribunal (2)	Amount awarded in appeal (3)	Difference to be drawn as enhanced compensation (4)
Loss of earning	-	Rs.25,000/-	Rs.25,000/-
Transportation expenses	Rs.500/-	Rs.4,000/-	Rs.3,500/-
Pain and suffering	Rs.9,000/-	Rs.15,000/-	Rs.6,000/-
Extra nourishment	Rs.3,500/-	Rs.5,000/-	Rs.1,500/-
Bystander expenses	Rs.3,500/-	Rs.5,500/-	Rs.2,000/-

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MACA No.816 of 2013

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Compensation	Rs.35,719/-	Rs.89,298/-	Rs.53,579/-
for permanent
disability
Total	Rs.52,219/-	Rs.1,43,798/-	Rs.91,579/-

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In the result, the appellant is entitled to get enhanced compensation of Rs.91,579/- rounded to Rs.91,600/-.

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The 2^nd respondent/insurer is directed to deposit the enhanced compensation in the Bank Account of the appellant with interest @ 7.5% per annum from the date of petition till the date of deposit 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 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.

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

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Sd/-

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SOPHY THOMAS JUDGE

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smp

Narayanan v. Purushu

Case brief

What is this about?

What did the court decide?

Narayanan v. Purushu

Case brief

What is this about?

What did the court decide?

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