Partly allowed

Dhanesh v. Biju Mathew

Kerala HC22 Jul 2024MACA/816/2023

Case brief

AI extract

What is this about?

A motor accident claimant appealed for enhancement of tribunal-awarded compensation. The court raised notional income to ₹12,500, disability to 15%, and enhanced awards under several heads, granting an additional ₹2,02,100 with interest at 7.5% per annum.

What did the court decide?

Additional compensation of ₹2,02,100 with 7.5% interest from date of petition and proportionate costs; insurer to deposit within two months.

Dhanesh Vs Biju Mathew — Motor Accident Claims | Kerala HC (2024)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

¶4

MONDAY, THE 22^ND DAY OF JULY 2024 / 31ST ASHADHA, 1946

¶5

MACA NO. 816 OF 2023

¶6

[AGAINST THE AWARD DATED 16.09.2022 IN OPMV NO.686 OF 2016 ON THE FILE OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL-II, ALAPPUZHA]

¶7

APPELLANT/PETITIONER:

¶8

DHANESH, S/O DHANANJAYAN, AGED 39, NADUCHIRA, THOTTUVATHALA, WARD NO.1, NEDUMUDI PANCHAYATH, NEDUMUDI P.O., KUTTANAD TALUK, ALAPPUZHA DISTRICT., PIN - 688503 BY ADVS. V.N.SANKARJEE V.N.MADHUSUDANAN R.UDAYA JYOTHI M.M.VINOD M.SUSEELA KEERTHI B. CHANDRAN VIJAYAN PILLAI P.K. C.PURUSHOTHAMAN NAIR NITHEESH.M SUKANYA S.

¶9

RESPONDENTS/RESPONDENTS:

¶10

1 BIJU MATHEW S/O MATHEW, NEW VADAKEEDAM HOUSE, PULINCUNNU PANCHAYAT, PULINCUNNU P.O., KUTTANAD TALUK, ALAPPUZHA DISTRICT., PIN - 688504 2 M/S UNITED INDIA INSURANCE CO. LTD DIVISIONAL OFFICE, MULLACKAL ROAD, MULLACKAL P.O., AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT- PIN: 688 011, BY SMT. DEEPA GEORGE -SC

¶11

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MACA NO.816 OF 2023

:-2-:

JUDGMENT

This appeal has been filed by the claimant in O.P(MV) No.686/2016 on the file of the Motor Accidents Claims Tribunal-II, Alappuzha. The respondents herein are the respondents before the tribunal.

¶16

According to the appellant, on 05.07.2015 at 10.30 am, he was riding his scooter bearing Reg.No.KL-66/6256 along the A.C.Road. When he reached near Pallikoottumma Muri, a car bearing Reg.No.KL04/Y 5512 which was parked on the northern side of the road had abruptly entered the road and hit the petitioner’s scooter and he sustained serious injuries. The appellant approached the tribunal claiming a total compensation of ₹9,74,000/-.

¶17

The respondent-insurer filed a written statement, admitting the insurance policy, but disputing the quantum of compensation claimed. Before the tribunal, no oral evidence was adduced on either side. Exts. A1 to A12 were marked on the side of the appellant. The tribunal, after analysing the pleadings and materials on record, awarded a sum of ₹4,40,468/- as compensation under different heads with interest @8% per annum from the date of petition till realization, against the

¶18

MACA NO.816 OF 2023

¶19

:-3-:

¶20

respondent being the insurer. Dissatisfied with the quantum of compensation awarded by the tribunal, the claimant has come up in appeal.

¶21

Heard the learned counsel for the appellant and the learned Standing Counsel for the respondent-insurer.

¶22

The learned counsel for the appellant claims enhancement mainly under the following heads:-

¶23

Notional Income - Learned counsel for the appellant submits that the tribunal has taken ₹10,000/- as his notional income following the judgment in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011)13 SCC 236]. According to the appellant, he was a merchant running a provision store and was earning a monthly income of ₹20,000/-. Learned counsel appearing for the respondents submits that since, the appellant failed to prove his income, the amount arrived at by the tribunal is quite reasonable . Learned counsel appearing for the appellant submits that the contention that he was a merchant running a provision store is proved by Ext.A1 FIS. I do not find any reason to disbelieve the FIS given by the appellant, since it is given immediately after the accident, even before

¶24

MACA NO.816 OF 2023

¶25

:-4-:

¶26

knowing about the consequences of the statement given. Accordingly, I am of the opinion that fixing an amount of ₹12,500/- would meet the ends of justice. Accordingly, I fix the monthly notional income of the appellant as ₹12,500/- .

¶27

Loss of Earnings - Learned counsel for the appellant submits that due to the injury sustained, the appellant could not go for work for six months, but the tribunal had considered only a period of three months for awarding compensation. Considering the fact that the appellant has suffered ‘trochanteric fracture right hip with fracture clavicle’, I find that a period of five months can be taken for awarding compensation towards loss of earnings. Accordingly, the total compensation payable under the said head will be ₹12,500/- x 5 = ₹62,500/-. The tribunal had awarded an amount of ₹30,000/- under the above head. Thus, there will be an additional amount of ₹32,500/- under the said head.

¶28

Pain and Suffering - Learned counsel for the appellant claimed ₹1,00,000/- as compensation for "pain and suffering", but the tribunal granted only ₹20,000/- . Considering the injuries sustained and the age of the appellant, I am of the opinion that the compensation granted under the said head is to be refixed and a thus a total compensation of

¶29

MACA NO.816 OF 2023

¶30

:-5-:

¶31

₹40,000/- is awarded. Thus an additional amount of ₹20,000/- is granted under the said head.

¶32

Compensation for loss of future earning power - Learned counsel for the appellant submits that Ext.A12 disability certificate was issued by the doctor assessing whole body disability of 15%. However, the tribunal has reduced the disability at 12%. This reasoning of the tribunal does not appear to be acceptable in view of the decision of this Court in Manikantan G. v. K.Janardhanan Nair [2021(5) KHC 305]. Ext.A12 disability certificate is issued by Dr.Joseph Dickson who is the Assistant Professor, Department of Orthopaedic, Medical College Hospital, Alappuzha. I do not find any reason to disbelieve the above certificate. Accordingly, the percentage of disability is fixed at 15% and the total compensation payable under the said head is recalculated thus:₹12,500 x 12x 16x 15/100 = ₹3,60,000/-. The compensation payable under the said head is ₹2,30,400/-. Thus, there will be an additional compensation of ₹1,29,600 /-.

¶33

Loss of amenities - Though the appellant claimed an amount of ₹1,00,000/- under this head, the tribunal awarded only an amount of ₹10,000/-, which, according to the appellant, is on the lower side.

¶34

MACA NO.816 OF 2023

¶35

:-6-:

¶36

Considering the injuries sustained by the appellant and the sufferings that the appellant might have undergone, I deem it appropriate to award a total compensation of ₹30,000/- towards loss of amenities. Thus, the appellant will be entitled to get an additional amount of ₹20,000/-

¶37

towards loss of amenities.

¶38

Thus, the impugned award of the tribunal is modified as follows:-

¶39

Sl. No	Head of claim	Amount claimed (₹)	Amount awarded by the tribunal (₹)	modified in appeal (₹)	total compensation (₹)
1	Loss of earning	1,20,000	30,000	32,500	62,500
2	Transport to hospital	6,000	2,000	not modified	2,000
3	Medical Expenses	1,25,000	1,39,568	not modified	1,39,568
4	Extra-nourishment	5,000	2,000	not modified	2000
5	Bystander’s expenses	15,000	5,500	not modified	5500
6	Damage to clothing and articles	3,000	1,000	not modified	1000
7	Compensation for pain and suffering	1,00,000	20,000	20,000	40,000
8	Compensation for loss of future earning power	5,00,000	2,30,400	1,29,600	3,60,000
9	Compensation for loss of amenities	1,00,000	10,000	20,000	30,000
	Total	9,74,000	4,40,468	2,02,100	6,42,568

¶40

MACA NO.816 OF 2023

¶41

:-7-:

¶42

Accordingly, the appeal is allowed in part and the appellant/claimant is awarded an additional compensation of ₹2,02,100/- (Rupees two lakh two thousand and one hundred only) over and above the compensation awarded by the tribunal with interest @ 7.5% per annum from the date of petition till realization and proportionate costs. The respondent insurer shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The claimant shall furnish copies of the PAN Card, ADHAAR Card and bank details before the respondent insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for the insurance company to deposit the said amount before the tribunal. Upon such deposit being made, the entire amount shall be disbursed to the appellant at the earliest in accordance with law.

¶43

Sd/-

¶44

SHOBA ANNAMMA EAPEN JUDGE

¶45

MBS/

Dhanesh v. Biju Mathew

Case brief

What is this about?

What did the court decide?

Dhanesh v. Biju Mathew

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

P.J.A Manoj Vs the Commercial Tax Officer

K.Mohanan Vs the Ponnani Municipality

Babu Aliyas Vs Kerala State Electricity Board Ltd.

Assistant Executive Engineer Vs Arun R. Chandran

Soman J Vs the Valavoor Service Co-Operative Bank Ltd. No. K 91

Philomina P.A Vs P.K. Paulose