Kerala High Court
Fr.Tomy Luke Anikuzhikattil vs Managing Partner Shaji C.K on 29 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
MACA NO. 2314 OF 2013
AGAINST THE AWARD IN OPMV 9/2009 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL MUVATTUPUZHA, ERNAKULAM
APPELLANT/PETITIONER:
FR.TOMY LUKE ANIKUZHIKATTIL
S/O.LUKE,RESIDING AT ANIKUZHIKATTIL
PPOTTANKADU,BISON VALLEY CHITHIRAPURAM ADIMALY,
NOW RSIDING AT ST,SEBASTIAN'S CHURCH,
THOKKUPARA,IDUKKY
BY ADVS.
SMT.ANEY PAUL
SRI.PHILIP J.VETTICKATTU
RESPONDENTS/RESPONDENTS:
1 MANAGING PARTNER SRI SHAJI C.K.
MARY MATHA FUELS, NEAR PRIVATE BUS STAND,
ASRAMAM JUNCTION,MUVATTUPUZHA PIN 686 661
2 N.M.JOSE, S/O.THOMAS MATHAI,
NEDUMATTATHIL HOUSE, KUNNACKAL
MUVATTUPUZHA PIN 686 661
3 THE BRANCH MANAGER
NATIONAL INSURANCE CO.LTD,
URUMBATH BUILDING
ALUVA PIN 683 101
R3 BY ADV SRI.PMM.NAJEEB KHAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 15.09.2021, THE COURT ON 29.10.2021 DELIVERED THE
FOLLOWING:
M.A.C.A. No.2314 of 2013 2
T.R. RAVI, J.
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M.A.C.A. No.2314 of 2013
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Dated this the 29th day of October, 2021
JUDGMENT
Heard Sri Philip J.Vettikkattu learned counsel for the appellant
and Sri P.M.M.Najeeb Khan, learned counsel for the 3 rd respondent
Insurer.
2. On 14.10.2008, the jeep in which the appellant was
travelling was hit by a tanker lorry driven by the 2 nd respondent in
rash and negligent manner. The appellant and other passengers in
the jeep sustained very serious injuries. The appellant was
hospitalised and remained as an inpatient for 28 days. He preferred
a claim petition seeking Rs.5 lakh as compensation before the Motor
Accidents Claims Tribunal, Muvattupuzha. The Tribunal awarded a
sum of Rs.3,22,640/- with interest at the rate of 8% per annum.
Aggrieved by the award, the appellant has filed this appeal seeking
enhancement of the compensation.
3. The appellant is a Priest in a church. To show his income,
Exhibit A18 salary Certificate issued from the Bishop's House was
produced. Exhibit A18 shows the income of the appellant as
Rs.5,050/- per month. However, the Tribunal fixed a notional income
of Rs.4,000/- alone. The accident occurred in 2008. Going by the
decision in Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Co.Ltd., reported in [AIR 2011 SC 2951], a
Coolie would be earning a notional income of Rs.6,500/- in the year
2008. It is hence contended that the sum of Rs.5,050/- should be
adopted as the monthly salary for the purpose of calculating the
compensation payable under the heads loss of earnings and
compensation for permanent disability. I find that there was no
reason for the Tribunal not to rely on Exhibit A18 to find that the
appellant is entitled to compensation on the basis of a monthly
salary of Rs.5,050/-. Another contention raised by the counsel for
the appellant is that Exhibit A17 disability certificate shows a
disability of 36%. The doctor who issued the certificate was
examined as PW1. However, for no reason, the Tribunal took into
account only 20% as the disability. It is also contended that the
amounts awarded under the heads pain and suffering and loss of
amenities is very low, considering the hospitalisation for 28 days and
the serious injuries which the appellant had suffered. It was pointed
out that Exhibit A7 discharge summary will show that the applicant
had suffered 6 fractures and it can be seen from Exhibit A14
certificate issued from Aravind Eye Hospital, Madurai that the
appellant had primary acquired nasolacrimal duct obstruction and
chronic dacrocystitis on the left. I find considerable merit in the
contentions put forward by the counsel for the appellant.
4. Based on the monthly salary of Rs.5,050/-, and considering
36% disability as seen from Exhibit A17 disability certificate, the
appellant will be entitled to a sum of Rs.2,83,608/- as compensation
for permanent disability. After deducting the sum of Rs.1,24,800/-
awarded by the Tribunal, the appellant will be entitled to additional
compensation of Rs.1,58,808/- under the above ahead. The loss of
earnings for 10 months on the basis of a monthly salary of
Rs.5,050/-, will come to Rs.50,500/-. After deducting the amount of
Rs.40,000/- awarded by the Tribunal, the appellant will be entitled to
an additional compensation of Rs.10,500/- under the head loss of
earnings. Having regard to the nature of the injuries suffered by the
appellant, the 36% disability and the hospitalisation for 28 days, I
am of the opinion that the appellant is entitled to a sum of
Rs.75,000/- towards pain and sufferings and Rs.40,000/- towards
loss of amenities. After deducting the sum of Rs.30,000/- granted by
the Tribunal, the appellant will be entitled to an additional
compensation of Rs.45,000/- towards pain and sufferings. After
deducting the sum of Rs.20,000/- by the Tribunal, the appellant will
be entitled to a sum of Rs.20,000/- as additional compensation
towards loss of amenities.
In the result, the appeal is allowed. The appellant is awarded
an additional compensation of Rs.2,34,308/- (Rupees Two Lakh
Thirty Four Thousand Three Hundred and Eight only) with 9%
interest from 01.01.2009 till realisation, and proportionate costs.
The 3rd respondent is directed to deposit the additional compensation
granted in this appeal with interest before the Tribunal within two
months from the date of receipt of a certified copy of the judgment ,
after deducting any amount to which the appellant is liable towards
balance court fee and legal benefit fund. The disbursement of the
compensation to the appellant shall be in accordance with law.
Sd/-/-
T.R. RAVI
JUDGE
dsn
