Allowed

Jobin V.J v. M/S. Nazarath Transport (P) Ltd. (Deleted)

Kerala HC8 Feb 2024MACA/932/2013

Case brief

AI extract

What is this about?

The High Court allowed the appeal against the Motor Accidents Claims Tribunal's award. The Court found the original compensation for pain and suffering, loss of amenities, and bystander expenses insufficient given the injury severity, and awarded additional sums totaling Rs. 41,800/-.

What did the court decide?

Award date 20.01.2012 modified by granting additional compensation of Rs. 41,800/-, to be deposited by the insurer with interest.

Jobin V.J Vs M/S. Nazarath Transport (P) Ltd. (Deleted) — Motor Accident Claims | Kerala HC (2024)

¶1

MACA.No.932/13

¶2

¶3

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶4

PRESENT

¶5

THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

¶6

THURSDAY, THE 8^TH DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945

¶7

MACA NO. 932 OF 2013

¶8

AGAINST THE ORDER/JUDGMENT OPMV 1251/2007 OF ADDITIONAL DISTRICT COURT & IST ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,ALAPPUZHA.

¶9

APPELLANT/PETITIONER:

¶10

JOBIN V.J.,

¶11

S/O.JOY THOMAS, PALLIPARAMBIL HOUSE, KORTHUSSERY, KALAVOOR P.O., MARARIKULAM SOUTH PANCHAYATH WARD-19, ALAPPUZHA.

¶12

BY ADVS.SRI.A.T.ANILKUMAR SMT.V.SHYLAJA

¶13

RESPONDENTS/RESPONDENTS:

¶14

1 M/S.NAZARATH TRANSPORT (P) LTD. (DELETED) NO.10/5-ISSAC SREET NAZARETH, THIRUCHANDUR TALUK, TUTICORIN DISTRICT, STATE OF TAMIL NADU.

¶15

2 SILVAN.P. (DELETED) S/O.PAUL RAJ, SUMBER 11 HOUSE, (NEAR R.C.SCHOOL), MOOKKUPPERI P.O., MOOKKUPPERI VILLAGE, THIRICHANDUR TALUK, THUTHUKUDI DISTRICT, TAMILNADU STATE.

¶16

3 UNITED INDIA INSURANCE CO.LTD., REP.BY ITS DIVISIONAL OFFICE, MULLAKAL, ALAPPUZHA.

¶17

(RESPONDENT NOS.1 AND 2 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT, AS PER ORDER DATED 21.12.2021 IN IA 1/2019 IN MACA 932/2013 ).

¶18

BY ADV.N.S.MOHAMMED USMAN

¶19

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MACA.No.932/13

JUDGMENT

The appellant was the petitioner in O.P(MV).No.1251 of 2007 on the files of the Motor Accidents Claims Tribunal, Alappuzha. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 04.05.2007.

¶24

According to the appellant, the accident occurred when he was knocked down by a tourist bus bearing registration No.TN69/X-9999, driven by the 2^nd respondent in a rash and negligent manner. The appellant was aged 18 years and was a plus two student at the relevant time. According to him, he sustained permanent disablement due to the injuries sustained and the claim petition was submitted in such circumstances seeking a total compensation of Rs.2,50,000/-.

¶25

The 3^rd respondent insurer of the bus contested the matter by filing a written statement wherein they admitted the policy for the bus. However, they disputed the liability on various grounds. The quantum of compensation was also disputed by them.

¶26

To substantiate the contentions, the appellant examined PW1 Dr.K.Mahadevan and Exts.A1 to A18 were marked. No

¶27

MACA.No.932/13 3

¶28

evidence was adduced by the respondents. After the trial, the Tribunal concluded that the accident occurred due to the negligence of the 2^nd respondent in driving the vehicle and being the insurer, the 3^rd respondent was held liable to pay the compensation. The quantum of compensation was determined as Rs.1,52,428/- and the said amount was directed to be deposited by the 3^rd respondent with interest at the rate of 7.5% per annum from the date of petition till realization. This appeal is submitted in such circumstances seeking enhancement of compensation.

¶29

Heard Sri.A.T.Anil Kumar, learned counsel for the appellant and Sri.N.S.Mohammed Usman, learned counsel for the 3^rd respondent.

¶30

The only question that arises for consideration is whether any enhancement of compensation is warranted or not. The learned counsel for the appellant points out that, the amounts awarded by the Tribunal under various heads are extremely on the lower side. It was pointed out that even though the appellant contended that he sustained physical disablity of 12%, the Tribunal did not accept the same, and a lump sum compensation of Rs.30,000/- towards functional disability was granted. On the other

¶31

MACA.No.932/13 4

¶32

hand, the learned counsel for the 3rd respondent would oppose the said prayer by contending that the Tribunal fixed a reasonable amount after appreciating the evidence adduced, in a proper manner and that no interference is required.

¶33

As far as the compensation granted for disability is concerned, it can be seen that the Tribunal awarded the compensation under two heads, i.e., Rs.30,000/- under compensation for functional disability and a further sum of Rs.75,000/- for compensation for future prospects in life. The relevant document is the Ext.A12 disability certificate issued by the Doctor who was examined as PW1. The reason which is stated for the assessment of 12% disability are as follows:

¶34

“1) Recurrent headache, dizziness, risk of post traumatic epilepsy ---5%

¶35

1. Easily getting angry and forgetfulness--7%”

¶36

However, on going through the disability certificate, it

¶37

can be seen that no serious disabilities are mentioned, which

¶38

affects the earning capacity of a person. Even though the risk of traumatic epilepsy was mentioned, no such incident occurred at any point in time. Moreover, on the contention mentioned above regarding headache and dizziness, there is no evidence as to the

¶39

MACA.No.932/13 5

¶40

intensity as well as the frequency of the same. Similarly, the disability pointed out in the certificate, i.e., easily getting angry and forgetfulness, is also a vague assessment. The intensity of the same is not evident from the records. Even while the Doctor who issued the Ext.A9 certificate was examined as PW1, there is no proper explanation with respect to the same. Therefore, I am of the view that the percentage of disability as certified therein cannot be accepted as such, in the absence of any evidence of actual loss of earning capacity for the appellant. Despite the same, the Tribunal awarded a total compensation of Rs.1,05,000/- under the head of functional disability and future prospects combined together. In the facts and circumstances of the case, I find that the said amount is a reasonable compensation as far as the claim for disability is concerned.

¶41

When moving on to the other heads, I find some force in the contention of the learned counsel for the appellant. When considering the compensation for pain and suffering, crucial aspect to be noticed is the nature of injuries sustained by him. The injuries sustained by the appellant are mentioned below:

¶42

“1. Lacerated wound about 4 x 2 cms on the scalp.

¶43

Small injury on (Rt) hand.

¶44

MACA.No.932/13 6

¶45

Fracture (Rt) parietal bone.”

¶46

It is seen from the records that, initially, the appellant was admitted to Medical College Hospital, Kottayam and treated as an inpatient for nine days from 05.05.2007 to 13.05.2007 and it is contended by the learned counsel for the appellant that he was later admitted to Medical College Hospital Alappuzha on 17.06.2007 and discharged on 26.06.2007. The learned counsel for the appellant placed before this Court the discharge summary issued from the Medical College hospital, Alappuzha. Thus, it is evident that he had undergone 18 days in-patient treatment. Besides the same, the injuries sustained by the appellant include a fracture right parietal bone, which is a serious injury. In addition to that, in Ext.A9 disability certificate, it is specifically mentioned that, the appellant has recurring head aches and dizziness. The said aspect was asserted by PW1 when he was examined. In such circumstances, I am of the view that the amount awarded by the Tribunal towards pain and suffering is not sufficient. Therefore, a further sum of Rs.20,000/- is awarded. Regarding the loss of amenities, the Tribunal awarded an amount of Rs.10,000/-. As observed above, the medical records would indicate several difficulties for him consequent to the accident, which are recurring

¶47

MACA.No.932/13 7

¶48

headaches, dizziness, easily getting angry and forgetfulness. The said defects are clearly proved by examining PW1 Doctor as well. This will certainly affect the quality of life that the appellant was leading and those difficulties arose at the young age of 18 years. Therefore, I am of the view that a further sum of Rs.20,000/- can be granted for the loss of amenities and convenience. The Tribunal awarded Rs.900/- towards bystander expenses, taking into consideration inpatient treatment for nine days. Subsequent hospitalization from 17.06.2007 to 26.06.2007 was not considered, presumably because the document was not brought to the notice of the Tribunal. Since the discharge summary of the Alappuzha Medical College has been produced and the same appears to be convincing, I deem it appropriate to grant Rs.1,800/- towards bystander expenses, which is Rs.150/- per day for a period of 18 days. Thus, the total additional compensation is determined as Rs.41,800/- [20000+20000+1800].

¶49

In the result, this appeal is allowed. Award dated 20.12.2012 passed by the Motor Accidents Claims Tribunal, Alappuzha in O.P. (MV).No.1251 of 2007 is hereby modified by granting an additional compensation of Rs.41,800/- (Rupees forty one thousand and eight

¶50

MACA.No.932/13 8

¶51

hundred only). The said amount shall be deposited by the 3^rd respondent with interest at the rate as ordered by the Tribunal with proportionate costs within a period of three months. It is further ordered that the claimant shall furnish the details of the PAN Card, AADHAR Card and Bank details to enable the Insurance Company to make the deposit as ordered above, within a period of one month from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the Insurance Company to deposit the said amount before the Tribunal.

¶52

Sd/-

¶53

ZIYAD RAHMAN A.A. JUDGE

¶54

DG/13.2.24

Jobin V.J v. M/S. Nazarath Transport (P) Ltd. (Deleted)

Case brief

What is this about?

What did the court decide?

Jobin V.J v. M/S. Nazarath Transport (P) Ltd. (Deleted)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

K.K. Thankachan Vs the Divisional Manager, New India Assurance Co. Ltd.

Sarojiniamma Vs the Divisional Manager

Padmakumary Vs M/S. New India Assurance Co. Ltd.

Sherly Vs Ratheesh N.D.

Thilakan Vs Ratheesh N.D.

Ambika M. Nair Vs Jalaludeen