Sumisha.V.P vs Shamsuddin (Deleted)*

Kerala High Court

Sumisha.V.P vs Shamsuddin (Deleted)* on 20 May, 2024

                                                                       1



               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
       MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
                        MACA NO. 2610 OF 2012
AGAINST THE ORDER/JUDGMENT DATED 22.05.2012 IN OPMV NO.18 OF 2008
OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE

APPELLANT:

             SUMISHA.V.P.
             DAYASAGAR, KANTHAKALI PARAMBA, THALAKOLATHUR P.O.,
             VIA ATHOLI, KOZHIKODE.
             BY ADV SRI.JACOB ABRAHAM

RESPONDENTS:

    1        SHAMSUDDIN (DELETED)*
             MUKKATTIL HOUSE, P.O.KARUVANNOOR, NADUVANNUR, KOZHIKODE
             673614.
    2        SAIFUDDIN
             S/O.ABOOBACKER, VELLACHALIL HOUSE, P.O.THIRUTHIYADU,
             BALUSSERRY, KOZHIKODE 673612.

    3        THE NEW INDIA ASSUARNCE CO.LTD
             I.G.ROAD, KOZHIKODE-673001. *(R1 DELETED FROM THE PARTY
             ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED
             05/12/2017 IN IA 4309/17[IA 2/17] IN MACA 2610/2012)

OTHER PRESENT:

             SRI.LAL K.JOSEPH (SC, NEW INDIA ASSURANCE)


    THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 20.05.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 MACA No.2610 of 2012                        2


                             J U D G M E N T

This appeal is at the instance of the claimant in OP(MV) No.18 of 2008 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode challenging the award on the ground of inadequacy of compensation.

2. The appellant/claimant met with a road traffic accident on 16/1/2007 at 12.45pm, while she was standing on the road side near Nirmala Hospital Vellimadukunnu. KL-56-1526 motorcycle ridden by the 1st respondent in a rash and negligent manner knocked her down, and she sustained serious injuries including fracture of both bones of right leg. She was rushed to Nirmala Hospital and from there she was referred to Baby Memorial Hospital. She was MACA No.2610 of 2012 3 hospitalized for eight days in total. She approached the Tribunal, claiming compensation of Rs.4 Lakh, but the Tribunal awarded only Rs.51,650/-, and hence this appeal.

3. The 1st respondent was the rider of the offending motorcycle, the 2nd respondent was its owner, and the 3rd respondent was its insurer.

4. The 3rd respondent insurer entered appearance and admitted the policy.

5. Now this Court is called upon to find out whether there is any irregularity, illegality or impropriety in the impugned award warranting interference by this Court.

6. Heard learned counsel for the appellant and learned counsel for the 3rd respondent MACA No.2610 of 2012 4 insurer.

7. The learned counsel for the appellant would submit that the appellant was a 20 year old BSC Nursing student at the time of accident. She suffered a lot due to the injuries sustained in the accident, and she lost her classes also, as she was not able to move. So according to the appellant, the compensation award by the tribunal is too meager, and hence she is seeking enhancement. She was hospitalized for eight days in total out of which four days admission was for removal of implants.

8. Towards transportation to hospital, learned Tribunal awarded only Rs.500/-, though she was admitted in hospital twice. For review also she might have been attending hospital MACA No.2610 of 2012 5 even after discharge. So, this Court is inclined to award Rs.1,000/- more, under the head transportation to hospital.

9. Towards extra nourishment, learned Tribunal awarded only Rs.500/-, though the appellant was hospitalized for 8 days. Since both bones of her right leg were fractured, even after discharge she might have been taking rest at home under special care. So this Court is inclined to award Rs.1,000/- more, under the head extra nourishment.

10. Towards treatment expenses, the appellant produced medical bills for Rs.40,100/-, but learned tribunal found that two bills amounting to Rs.3,250/- in total, towards Anesthesia expenses were not in proper form. So that amount was deducted from the MACA No.2610 of 2012 6 total bill amount. Those bills will show that Rs.3,250/- was paid for Anesthesia expenses, and no other bills produced by her reflect the Anesthesia expenses. Since she had undergone two surgeries one for putting the implant and the other for removing the same, definitely Anesthesia might have been given to her twice, and so this court is inclined to award Rs.3,250/- accepting those documents.

11. Towards bystander expenses, learned Tribunal awarded only Rs.800/-i.e. Rs.100 per day for eight days of hospitalization. Since the appellant suffered fracture of both bones of her right leg, even after discharge she might have been in need of a bystander to attend her daily affairs. So this Court is inclined to award Rs.1,200/- more, taking the MACA No.2610 of 2012 7 period of rest as twenty days in total, instead of eight days of hospitalization.

12. Towards pain and suffering, this court is inclined to award Rs.8,000/- more, since the appellant had suffered fracture of both bones of her right leg.

13. Learned Tribunal awarded only Rs.3,000/-, towards loss of amenities. Though no permanent disability is proved, learned counsel for the appellant would submit that the appellant was a 20 year old BSC Nursing student, and she could not attend her classes due to the injuries suffered in the accident. Though she was not earning any income during that period, considering fracture of both bones of her right leg, the period of hospitalization, period of rest, loss of MACA No.2610 of 2012 8 classes etc., this Court is inclined to award Rs.5,000/- more, under the head loss of amenities.

14. The enhanced compensation awarded in this appeal is stated in the table below:-

Head of Amount Amount Difference to be claim awarded by awarded in drawn as the Tribunal appeal enhanced compensation Transportatio 500/- 1500/- 1000/-

      n to hospital
      Extra
                          500/-            1500/-           1000/-
      Nourishment
      Treatment
                        36,850/-          40,100/-          3250/-
      expenses
      Bystander's
                          800/-            2,000/-          1,200/-
      expenses
      Pain and
                        10,000/-          18,000/-          8,000/-
      sufferings
      Loss of
                         3,000/-           8,000/-          5,000/-
      amenities
                                          TOTAL             19,450/-

15. So the appellant is entitled to get MACA No.2610 of 2012 9 enhanced compensation of Rs.19,450/- with 7% interest per annum.

16. The 3rd respondent/insurer admitted the policy and they are not challenging the finding of the tribunal that they are liable to compensate the appellant.

17. The 3rd respondent/insurer is directed to deposit the enhanced compensation of Rs.19,450/- with 7% interest per annum, from the date of petition till the date of deposit (excluding 803 days of delay in filing the appeal) before the Principal Motor Accidents Claim Tribunal, Kozhikode, within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to the appellant after deducting her liabilities, if any, MACA No.2610 of 2012 10 towards Tax, balance court fee, legal benefit fund etc. The appeal is allowed to the extent as above, and no order is made as to costs.

Sd/-

SOPHY THOMAS, JUDGE ska