Biju T.P vs Lijo M.Joy
2021 Latest Caselaw 22786 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
          THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
   SATURDAY, THE 20TH DAY OF NOVEMBER 2021 / 29TH KARTHIKA, 1943
                      MACA NO. 3652 OF 2018
    AGAINST THE AWARD DATED 31.8.18 IN OPMV 1292/2015 OF MOTOR
          ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM, ERNAKULAM
APPELLANT/CLAIMANT:

          BIJU T.P, AGED 39 YEARS
          S/O PADMANABHAN, THURUTHEL HOUSE,
          RAJARSHI KAVALA, KANINADU P.O., VADAVUCODE VILLAGE,
          KUNNATHUNADU TALUK, ERNAKULAM DISTRICT.

          BY ADVS.
          MATHEWS K.PHILIP
          SMT.T.MANASY



RESPONDENT/RESPONDENTS:

    1     LIJO M.JOY, S/O JOY, MARIYIL HOUSE,
          THRIKKALATHOOR P.O, ERNAKULAM DIST - 683557.

    2     SIJO, S/O.MATHEW, 7/229, KUNNATH HOUSE,
          ELANJI P.O., ANTHIYAL, MUVATTUPUZHA - 686 665.

    3     THE LEGAL-CLAIMS MANAGER
          CHOLAMANDALAM GENERAL INSURANCE COMPANY LIMITED,
          1ST FLOOR, ARAFA TOWER, M.C.ROAD, KOTTAYAM - 686 001.

          BY ADVS.
          SRI.BIBIN K.DIVAKARAN
          SRI.C.C.ANOOP
          SRI.P.JACOB MATHEW



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 20.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA NO. 3652 OF 2018           ..2..




                        JUDGMENT

The appellant is the claimant before the Motor

Accidents Claims Tribunal, Ernakulam in O.P.(MV)

No.1292/2015. This appeal is preferred dissatisfied with

the quantum of compensation awarded by the Tribunal.

The parties in this appeal are referred to as per their

status in the claim petition.

2.The petitioner was a construction worker. While

the petitioner was travelling in a scooter bearing

Registration No. KL-40B 4381 as pillion rider, a tipper

lorry bearing Registration No.KL-63-2131, driven by the

1st respondent and owned by the 2 nd respondent in a

rash and negligent manner hit the scooter and the

petitioner sustained serious injuries. The petitioner

claimed an amount of Rs.10,00,000/- as total

compensation for the injuries sustained in the accident.

MACA NO. 3652 OF 2018 ..3..

3. The 3rd respondent insurance company filed

written statement admitting that the tipper lorry was

covered by a valid policy of insurance at the time of the

accident, however, contended that the accident

happened not due to the negligent driving of the tipper

lorry. The 3rd respondent also contended that the

amount claimed under various heads are excessive.

4. The Tribunal found that the accident happened

due to the negligence of the driver of the tipper lorry.

The Tribunal awarded a total compensation of

Rs.3,65,900/- under various heads as shown below:

  Sl.               Heads              Amount        Amount
  No.                                  claimed     awarded (in
                                                      Rs.)


   1.    Loss of earnings           1,40,000        40,000

   2.    Transport to hospital         3,000         3,000
         and back to home

   3.    Extra nourishment           10,000          5,000

   4.    Damage to clothes and         2,000         1,000
 MACA NO. 3652 OF 2018          ..4..



         articles

  5.     Bystander expenses        45,000       7,500

   6.    Treatment expenses      1,50,000     1,49,400

   7.    Compensation for pain 1,00,000        40,000
         and sufferings

   8.    Compensation forloss 50,000           30,000
         of   amenities  and
         comforts


         expenses

  10.    Compensation         for 4,50,000     90,000
         disability

         Total                   10,00,000/- 3,65,900/-

  Claim amount Rs.10,00,000/-

5. The Tribunal has taken the monthly income of

the petitioner as Rs.10,000/-. According to the

petitioner, the petitioner was having a monthly income

of Rs.18,000/- at the time of the accident. Being a MACA NO. 3652 OF 2018 ..5..

construction worker, his monthly income can be taken

as Rs.12,000/-. The petitioner was hospitalised for 30

days. The Tribunal has found that there is loss of

earnings for a period of 4 months and awarded an

amount of Rs.40,000/- towards that head. Taking note of

the nature of injuries sustained, the period of

hospitalization, the nature of job of the petitioner, I find

that the period of loss of earnings has to be taken as 6

months. Therefore, I re-fix the compensation under the

head loss of earnings as Rs.12,000x6=Rs.72,000/-.

Therefore, the petitioner is entitled for an enhanced

amount of Rs.32,000/- (Rs.72,000-40,000) under the

head loss of earnings.

6. Under the head pain and sufferings, an amount

of Rs.40,000/- has been awarded. The petitioner has

claimed an amount of Rs.1,00,000/- towards pain and

sufferings. On going through the nature of injuries MACA NO. 3652 OF 2018 ..6..

sustained by him and the period of hospitalisation, I find

that an amount of Rs.10,000/- more can be awarded

under the head pain and sufferings. Therefore, I re-fix

the amount of compensation under the head pain and

sufferings as Rs.50,000/-.

7. Under the head loss of amenities and comforts,

an amount of Rs.30,000/- is awarded. He has sustained

open fracture dislocation of right ankle and other

injuries. After hearing the learned Counsel for the

petitioner and the learned Senior Counsel for the

Insurance company, I find that Rs.20,000/- more can be

awarded under the said head and I re-fix the

compensation for loss of amenities and comforts as

Rs.50,000/-.

8. With regard to the compensation for disability,

the petitioner was aged 36 years at the time of the

accident and the Tribunal has rightly taken the MACA NO. 3652 OF 2018 ..7..

multiplier as '15'. The Medical Board has certified the

percentage of disability of the petitioner as 5%. Since I

have re-fixed the monthly income of the petitioner as

Rs.12,000/-, the petitioner will be entitled for an

enhanced amount of Rs.18,000/-

[12,000x12x15x5/100= 1,08,000 - 90,000] under the

head compensation for disability.

9. No amount has been awarded by the Tribunal

towards compensation for future treatment. Going by

the nature of injuries noted by the Tribunal and after

hearing both sides, I find that an amount of Rs.10,000/-

can be awarded under the head compensation for future

treatment expenses.

Thus, the appeal is allowed in part. The petitioner

is entitled for an enhanced compensation of

Rs.90,000/- (Rupees ninety thousand only)

[32,000+10,000+20,000+18,000+10,000] with 8% MACA NO. 3652 OF 2018 ..8..

interest per annum from the date of petition till

realisation with proportionate cost which I fix as

Rs.3,000/-. The 3rd respondent insurance company shall

deposit the additional compensation awarded in this

appeal by way of cheque in favour of the petitioner

before the Tribunal within a period of two months from

the date of receipt of a certified copy of this appeal.

Sd/-

MURALI PURUSHOTHAMAN JUDGE SB/20/11/2021