Edward Raj vs The Manager, Oriental Insurance ...
2021 Latest Caselaw 23097 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR. JUSTICE T.R.RAVI
  WEDNESDAY, THE 24TH DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA, 1943
                         MACA NO. 1776 OF 2013
   AGAINST THE AWARD IN OPMV 101/2010 OF MOTOR ACCIDENT CLAIMS
                        TRIBUNAL PALA, KOTTAYAM
APPELLANT/PETITIONER:

          EDWARD RAJ
          S/O.DASAIYA, 26 MURI LEYAM,
          PATTUMALA ESTATE, KARADIKUZHI P.O.,
          PERRUMADE, IDUKKI DISTRICT.
          BY ADVS.
          SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
          SRI.K.B.ARUNKUMAR


RESPONDENT/RESPONDENT:

          THE MANAGER, ORIENTAL INSURANCE COMPANY LIMITED,
          CHEERANVELIL BUILDING, NH220,
          KANJIRAPPALLY, KOTTAYAM DISTRICT,
          PIN - 686 507.

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 23.9.2021, ALONG WITH MACA.1778/2013, THE COURT ON 24.11.2021
DELIVERED THE FOLLOWING:
 MACA 1776 & 1778 OF 2013                2




             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 24TH DAY OF NOVEMBER 2021/3RD AGRAHAYANA, 1943
                           MACA NO. 1778 OF 2013
 AGAINST THE AWARD IN OPMV 107/2010 OF MOTOR ACCIDENT CLAIMS
                       TRIBUNAL PALA, KOTTAYAM
APPELLANT/PETITIONER:

             KASHI
             S/O.SIVALINKAM, 26 MURI LEYAM, PATTUMALA
             ESTATEKARADIKUZHI (P.O),
             PEERUMADE, IDUKKI DISTRICT.
             BY ADVS.
             SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
             SRI.K.B.ARUNKUMAR


RESPONDENT/RESPONDENT No.3:

             THE MANAGER
             ORIENTAL INSURANCE COMPANY LIMITED,
             CHEERANVELIL BUILDING N.H 220,
             KANJIRAPPALLY, KOTTAYAM DISTRICT
             PIN - 686 507.
             BY ADV SRI.N.S.NAJEEB


      THIS    MOTOR    ACCIDENT      CLAIMS   APPEAL   HAVING   BEEN
FINALLY HEARD ON 23.9.2021, ALONG WITH MACA.1776/2013,
THE COURT ON 24.11.2021 DELIVERED THE FOLLOWING:
 MACA 1776 & 1778 OF 2013                 3




                            T.R. RAVI, J.
             --------------------------------------------
                 M.A.C.A. Nos.1776 & 1778 of 2013
              --------------------------------------------
             Dated this the 24th day of November, 2021

                                JUDGMENT

These appeals arise as a result of an accident which occurred

on 23.1.2009, wherein a lorry hit against a jeep in which the

appellants were travelling causing the jeep to overturn and

resulting in injury to the appellants. The appellant in

M.A.C.A.No.1776 of 2013 had preferred OP(MV) No.101 of 2010

and the appellant in M.A.C.A.No.1778 of 2013 had preferred

OP(MV) No.107 of 2010 before the Tribunal. Both the petitions

were tried together and were disposed of by a common award.

Aggrieved by the amount awarded by the Tribunal, the appellants

have filed these appeals claiming enhanced compensation. The

facts are stated with reference to the appeals.

2. M.A.C.A.No.1776 of 2013:- The appellant was a daily-

wager aged 38 years and claimed to have been earning around

Rs.6,000/- per month at the time of the accident. He suffered

multiple fractures in the ribs on the left-hand side, fracture

transverse process L3, L4, tendon injury (R) hand, machine nero

repair (R) hand, STS direct closer, multiple fracture(L) 2,3,4,5,6,

Logus tendon injury (R) hand and complained of pain and

tenderness all over the body. He had to be hospitalised for 19 days.

The Medical Board examined him and as per Exhibit X1 disability

certificate, he was assessed to have a disability of 48%. The

Tribunal calculated compensation by taking a notional income of

Rs.3,500/- per month and treating the disability as 30%. The

counsel for the appellant contended that there was no reason for

the Tribunal to treat the notional income as Rs.3,500/- and that

going by the decision in Ramachandrappa v. Manager, Royal

Sundaram Alliance Insurance Co.Ltd., reported in [AIR 2011

SC 2951], the claim of Rs.6,000/- as monthly income ought to

have been accepted. It is also submitted that there was no reason

for scaling down the disability from 48% to 30%. Another

contention that is taken is that having regard to the injury suffered

and the fact that the appellant was hospitalised for 19 days, the

Tribunal went wrong in not allowing any amount towards loss of

amenities and it is further submitted that going by the evidence on

record the Tribunal ought to have granted loss of earning for 12

months and not for 8 months.

3. M.A.C.A.No.1778 of 2013 :- The appellant, a daily

wager aged 30 years at the time of the accident, claimed to have

been receiving Rs.6,000/- as monthly income. He suffered

lacerated wound over the right wrist, over the right knee, on the

scalp, on the right forearm and Type II open fracture DER (R)

Bennet's fracture Dn (R) and complained of pain and tenderness all

over the body. He had to remain in the hospital for 14 days. The

Medical Board assessed disability of 22%. The Tribunal adopted a

notional income of Rs.3,500/- and scaled down the disability to

12% to arrive at the compensation payable. The counsel for the

appellant contended that the Tribunal went wrong in fixing the

notional income as Rs.3,500/- and ought to have adopted

Rs.6,000/- as monthly income. It is further submitted that there

was no reason to scale down the disability from 22% to 12%. It is

further submitted that the Tribunal ought to have granted the

amount of Rs.50,000/- claimed towards pain and suffering instead

of reducing it to Rs.20,000/-. Another contention taken is that the

Tribunal disallowed treatment expenses, which is not justified in

the light of Exhibit A17 medical bills. The Tribunal has not stated

any reason for not granting the medical expenses, so also no

amount has been granted towards loss of amenities.

4. Having heard the counsel on either side, the award of

the Tribunal needs to be modified. The contentions of the

appellants with regard to the notional income adopted and loss of

amenities are fully justified. Consequential changes are also

required under the head loss of earnings. In M.A.C.A.No.1776 of

2013, the appellant is entitled to loss of earnings for 12 months

instead of 8 months and in both the cases, the appellants are

entitled to an addition of 25% towards future prospects for the

purpose of calculation of compensation for permanent disability.

5. With the above conclusions in mind, I shall first consider

M.A.C.A.No.1776 of 2013. The Tribunal ought to have treated the

monthly income of the appellant as Rs.6,000/-. Adding 25%

towards future prospects, Rs.7,500/-, is to be adopted as income

for the purpose of calculating the compensation for permanent

disability. The disability is to be treated as 48% as seen from X1.

Based on the above, the applicant will be entitled to a sum of

Rs.6,48,000/-(7500x12x15x48%) towards compensation for

permanent disability. After deducting the sum of Rs.1,89,000/-

awarded by the Tribunal, the applicant will be entitled to an

additional sum of Rs.4,59,000/- under the above head. So also,

considering the nature of the injuries and 19 days hospitalisation

and 48% disability, the Tribunal ought to have awarded a sum of

Rs.25,000 towards loss of amenities instead of rejecting the claim

altogether. I am also of the opinion that the Tribunal ought to have

granted loss of earning for 12 months taking into account that the

fact that claim was preferred only on 5.2.2010. The appellant will

be entitled to a sum of Rs.72,000/- towards loss of earnings and

after deducting the sum of Rs.28,000/- awarded by the Tribunal,

the appellant will be entitled to a sum of Rs.44,000/- in addition.

Thus the appellant will be entitled to a total amount of

Rs.5,28,000/- as additional compensation.

6. M.A.C.A.No.1778 of 2013:- The Tribunal ought to

have taken the monthly income as Rs.6,000/- instead of

Rs.3,500/- and the disability as 22%. Adding 25% towards future

prospects, the income for the purpose of calculating compensation

for permanent disability should be Rs.7,500/-. The appellant will

thus be entitled to a sum of Rs.3,36,600/- (7500x12x17x22%)

towards compensation for permanent disability. After deducting the

sum of Rs.85,680/- awarded by the Tribunal, the appellant will be

entitled to an additional compensation of Rs.2,50,920/- under the

above head. The loss of earnings payable would be Rs.24,000/-.

After deducting the amount of Rs.14,000/- awarded by the

Tribunal, the appellant will be entitled to an additional sum of

Rs.10,000/- under the said head. The amount awarded towards

pain and suffering does not require to be modified. At the same

time, I am of the opinion that an amount of Rs.15,000/- is to be

awarded towards loss of amenities having regard to the nature of

the injuries and the hospitalisation for 14 days, instead of rejecting

the claim. The Tribunal has not stated any reason for rejecting

Exhibit A17 medical bills, which would show that the appellant had

incurred Rs.505/- towards medical expenses. The above said

amount is also to be awarded to the appellant. In the whole the

appellant will be entitled to an additional sum of Rs.2,76,425/- as

additional compensation.

7. In the result M.A.C.A.No.1776 of 2013 is allowed and

the appellant is awarded additional compensation of a sum of

Rs.5,28,000/- (Rupees Five Lakh Twenty Eight Thousand

only) with interest at the rate of 9% per annum from the date of

filing of the claim petition (05.02.2010) till the date of realisation,

with proportionate costs. M.A.C.A.No.1778 of 2013 is allowed and

the appellant is awarded additional compensation of

Rs.2,76,425/- (Rupees Two Lakhs Seventy Six Thousand

Four Hundred and Twenty Five only) with interest at the rate

of 9% per annum from the date of filing of the claim petition

(08.02.2010) till the date of realisation, with proportionate costs.

The respondent insurer shall deposit the additional compensation

granted in these appeals along with interest and proportionate

costs, before the Tribunal within two months from the date of

receipt of a certified copy of this judgment, after deducting any

amount to which the appellants are liable towards balance court

fee and legal benefit fund. The disbursement of the compensation

to the appellants shall be in accordance with law.

Sd/-

T.R. RAVI JUDGE

dsn