Kerala High Court
Veeyabhadran @ Veerapatharan vs The Manager, The New India ... on 11 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
MACA NO. 1076 OF 2014
AGAINST THE ORDER/JUDGMENT IN OPMV 491/2011 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL PALA, KOTTAYAM
APPELLANT/S:
VEEYABHADRAN @ VEERAPATHARAN
S/O.GURUNADHAN, DOOR NO 4, WEST STREET NO 4,
CHINNAKATTAI P O, SEDAPATTI VIA, PERIYUR TALUK, MADURAI
DIST, TAMIL NADU PIN-625527
BY ADVS.
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SRI.MANU TOM
RESPONDENT/S:
THE MANAGER, THE NEW INDIA ASSURANCE CO.LTD.
PALA BRANCH, MUNICIPAL SHOPPING COMPLEX PALA, KOTTAYAM
DIST, PIN-686575
BY ADV SMT.T.C.SOWMIAVATHY
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 11.08.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA NO. 1076 OF 2014
2
JUDGMENT
Being aggrieved by the award in OP(MV) No.491/2011 dated 8.10.2013
on the file of the MACT, Pala, petitioner has approached this court, arraying
the original respondent before the Court below as the respondent herein.
2. The petitioner who met with an accident on 04.01.2011 while walking
through the Erattupetta - Pala road, due to the negligence of the 1 st
respondent, driver of the bus bearing registration No. KL-35/3447, had
approached the Tribunal and claimed compensation to the tune of
Rs.5,00,000/-.
3. The insurance company had filed a written statement, admitting the
policy and disputing the negligence and quantum of compensation.
4. Learned Tribunal adjudicated the matter and finally granted
Rs.3,15,250/- as compensation. The petitioner who is aggrieved in the matter
of quantum of compensation is before this Court.
5. It is submitted by the learned Counsel for the petitioner that the
Tribunal took Rs.5,000/- as the monthly income of the petitioner, who was a
coolie worker at the time of accident, as against the claim of Rs.12,000/- per
month as the monthly income. It is further submitted by learned Counsel for
MACA NO. 1076 OF 2014
the petitioner that, following the decision in Ramachandrappa v.
Manager, Royal Sundaram Alliance Insurance Company Limited
[(2011) 13 SCC 236], Rs.8,000/- ought to have been fixed as the monthly
income of the petitioner, since the accident was of the year 2011. This
submission appears to be convincing and therefore, I am inclined to fix the
income at the rate of Rs.8,000/- per month for the purpose of fixing loss of
earnings and compensation for disability. Thus loss of earnings will come to
Rs.48,000/- (8000/- x 6). Excluding Rs.30,000/- granted by the Tribunal,
Rs.18,000/- more under this head also is granted.
6. A serious grievance pointed out by the learned Counsel for the
petitioner is regarding non consideration of the disability certificate obtained
from the Medical College Hospital, Kottayam, by the learned Tribunal.
According to learned Counsel for the petitioner, the Tribunal without waiting
to get the disability certificate from the medical board, assessed the disability
as 10%. Though a review petition as I.A.No.2386/2013 was filed to reopen
the evidence for the purpose of considering the disability certificate, that also
was dismissed.
7. It is submitted by learned Counsel for the insurance company that the
disability certificate was not made part of evidence and therefore, the same
cannot be looked into. When addressing this question, I would like to observe
MACA NO. 1076 OF 2014
that the victims of motor accidents are entitled to get just compensation and
mere technicalities are not ground to deny such genuine claims. Here, as
borne out from the records of the Court below, medical certificate dated
23.10.2013 was in the case bundle, showing 24% disability to the petitioner.
But as per the award dated 8.10.2013, just 15 days before the date of disability
certificate, the Tribunal passed the award after dismissing the petition to
reopen the evidence. I cannot justify the said course of action by the Tribunal
in a case like this. In the appeal memorandum, this grievance was specifically
raised as one among the grounds. Keeping the principle that victims covered
by social welfare legislations could not be denied reliefs on technical grounds,
I am inclined to accept the disability certificate issued by the Medical Board
sh0wing 24% disability and mark the same as Ext.X1 for the purpose of re-
assessing the compensation entitled by the petitioner, in the interest of
justice.
8. Here, the petitioner sustained serious injuries. Type 2 open
commuted fracture on right leg, type 3 open commuted fracture on left leg,
etc. were the serious injuries sustained by the petitioner and in consideration
of those injuries and treatment thereon, the medical board fixed 24% as
disability to the petitioner. I cannot find any reason to reject Ext.X1.
Therefore, I am inclined to reassess the disability income based on Ext.X1,
fixing the disability at 24%. Thus, the disability income is recalculated as
MACA NO. 1076 OF 2014
Rs.8,000/- x 12 x 14 x 10/100 = Rs.1,34,000/-; out of which Rs.84,000/- was
granted by the Tribunal and the balance amount of Rs.50,000/- is granted
under this head.
9. It is further submitted by learned Counsel for the petitioner that,
though the petitioner underwent 60 days of inpatient treatment, only
Rs.40,000/- was granted under the head pain and sufferings. Therefore,
increase under the head pain and sufferings is mandated and I am inclined to
increase the same to the tune of Rs.10,000/- more. Though, as per the award,
Rs.42,000/- was granted under the head loss of earning power, it is
submitted by learned Counsel for the petitioner that the amount thus granted
was under the head loss of amenities and therefore, the same cannot be
disallowed. The award would depict that, no amount under the head loss of
amenities granted by the Tribunal and therefore, this amount can be treated
as one under the head loss of amenities.
Accordingly, the award is modified as follows:
Sl Head of claim Amount in Total amount
N Appeal (Rs.) after
o. enhancement
1 Loss of earnings 30,000/- 48,000/-
(5,000/- x 6 (8,000 x 6
months) months)
MACA NO. 1076 OF 2014
2 Transportation to hospital 6,000/- 6,000/-
3 Extra nourishment 2,000/- 2,000/-
4 Damages to clothing Not entitled Not entitled
5 Treatment expenses 99,171/- 99,171/-
4 Bystander expenses 12,000/- 12,000/- (200 x
60 days)
5 Pain and sufferings 40,000/- 50,000/-
6 Permanent disability 84,000/- (5,000 1,34,000/-
x 12 x 14 x (8000/- x 12 x
10/100) 14 x 10/100 )
7 Loss of amenities 42,000/- 42,000/-
Total claim 3,15,171/- 3,93,171/-
(rounded to)
3,15,250/-
In the result:
a) This M.A.C.A is allowed in part;
b) Modified award passed to the tune of Rs.3,93,171/-(Rupees Three
lakhs ninety three thousand one hundred and seventy one only) to be paid by
the 3rd respondent with 9% interest granted by the Triubunal and the amount
shall be deposited by the insurance company being the indemnifier of the
insured.
MACA NO. 1076 OF 2014
c) The respondent/3rd respondent insurer is directed to deposit the
entire amount of compensation as directed by the Tribunal within a period of
two months from this date. On deposit, the petitioner is at liberty to release
the same forthwith.
Sd/-
A. BADHARUDEEN
JUDGE
uu
12.08.2021.
