Joshy John vs John
2022 Latest Caselaw 9738 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
             THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
   FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
                       MACA NO.2531 OF 2018
   AGAINST THE ORDER/JUDGMENT IN OPMV 1407/2014 OF MOTOR
              ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA
APPELLANT/PETITIONER:

         JOSHY JOHN
         S/O.JOHN, SENTIPOTTAYIL HOUSE, VRT, BALASWARAM
         COLONY P.O., KARINKAYAM, PALAKKAD DISTRICT

         BY ADV SRI.P.V.CHANDRA MOHAN



RESPONDENTS/RESPONDENTS:

    1    JOHN
         S/O.MATHAN,8/171, SENTHIPOTTA, KARIMKAYAM P.O.,
         VET, MANGALAM DAM, ALATHUR,PALAKKAD DISTRICT-
         678541

    2    JOJY V.L.
         S/O. LUKOSE V.A., VATTAKANDATHIL HOUSE,
         ELAVAMPADAM P.O., KIZHAKKUMCHERUY, ALATHUR,
         PALAKKAD DIST-678 541.

    3    NATIONAL INSURANCE CO.LTD.,
         IRINJALAKUDA-680 121
         REPRESENTED BY BRANCH MANAGER

         BY ADV LAL GEORGE


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 23.08.2022, THE COURT ON 26.08.2022 DELIVERED THE
FOLLOWING:
 MACA No.2531 of 2018                      2


                        SOPHY THOMAS, J.
                  ------------------------------------
                       M.A.C.A No.2531 of 2018
                  ------------------------------------
              Dated this the 26th day of August, 2022


                             JUDGMENT

This appeal has been preferred by the claimant in

OP (MV) No.1407 of 2014 on the file of Motor Accident Claims

Tribunal, Irinjalakuda, challenging inadequacy of the

compensation awarded.

2. On 15.02.2014 at 6.30 p.m, the appellant met with a

road traffic accident while he was pillion riding KL-49D-5960

motorcycle. That motorcycle was ridden by the

2nd respondent in a rash and negligent manner and so he lost

control of the vehicle, and it turned down, whereby the appellant

sustained serious injuries. He was a 31 year old Supervisor in

Kitex Garments, earning monthly salary of Rs14,000/- at the time

of accident. He became totally disabled due to the accident and

so, he lost his job. He approached the Tribunal claiming

compensation of Rs.8,66,000/-. But the Tribunal awarded only

Rs.5,73,340/- and it is under challenge in this appeal.

3. The 1st respondent was the owner, 2 nd respondent was

the rider and the 3rd respondent was the insurer of the offending

motorcycle.

4. The accident, injuries as well as policy of the offending

vehicle are admitted by the insurer.

5. The Tribunal fixed the monthly income of the appellant as

Rs.8,500/-, though he was earning Rs.14,000/-. But Ext.X1 and

X2 coupled with the testimony of PW1 proved his income as

Rs.8,500/- and so, the Tribunal is justified in taking his income as

Rs.8,500/-. Since he had suffered fracture of right femur, both

bones of right leg and punctured wound on the right elbow, he

was admitted in hospital for 91 days and even on discharge, he

was having only 75% of flexion of knee. Ext.A8 disability

certificate shows 40% disability, but the Medical Board had

certified his disability as 22%.

6. Considering the nature of injuries, disability and the

period of hospitalisation, this Court is inclined to take the loss of

earning for a period of 12 months. So the appellant is eligible to

get Rs.34,000/- more under the head 'loss of earning'.

7. Towards attendant expenses, the appellant was given

Rs.300/- per day for 91 days of hospitalisation. Considering the

nature of injuries suffered and the disability incurred and also the

fact that even after discharge he was in need of an attendant for

his day to day affairs, this Court is inclined to award Rs.2,700/-

more under the head attendant expenses.

8. Towards pain and sufferings, the appellant is eligible for

Rs.25,000/- more considering the duration of treatment and the

nature of injuries.

9. Towards loss of amenities, Rs.30,000/- more is awarded

as the appellant had suffered 22% disability with shortening of 2

centimeter of lower limb. Moreover, the patient was dependent

on elbow crutches for mobilisation and he was not able to

continue his work as a Supervisor as seen from Ext.A8.

10. The disability certificate Ext.A8 further shows that there

was bony deformity and swelling over right leg. Difficulty in

climbing steps, squatting and sitting on the floor and malunited

fracture of both bones of right leg with implants in-situ. So,

definitely, he needs treatment in future also with respect to the

conditions mentioned in Ext.A8. So, this Court is inclined to

award Rs.25,000/- towards future medical expenses.

11. The compensation awarded under all other heads seems

to be just and reasonable and it needs no interference.

Head of Amount Amount awarded Difference to claim awarded by in appeal be drawn as the Tribunal enhanced compensation

Loss of Rs.68,000/- Rs.1,02,000/- Rs.34,000/- earning

Attendant Rs.27,300/- Rs.30,000/- Rs.2,700/- expenses

Pain and Rs.60,000/- Rs.85,000/- Rs.25,000/- sufferings

Loss of Rs.30,000/- Rs.60,000/- Rs.30,000/- amenities

Future - Rs.25,000/- Rs.25,000/- medical expenses

Total Rs.1,85,300/- Rs.3,02,000/- Rs.1,16,700/-

12. In the result, the appellant is entitled to get

Rs.1,16,700/- (34000+2700+25000+30000+25000) as enhanced

compensation.

The 3rd respondent/insurer is directed to deposit the

enhanced compensation in the Bank Account of the appellant with

interest @ 8% per annum from the date of petition till realisation

within a period of two months from the date of receipt of a copy

of this judgment. The deposit must be in terms of the directives

issued by this Court in Circular No.3 of 2019 dated 06/09/2019

and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after

deducting the liabilities, if any, of the appellant towards Tax,

balance court fee and legal benefit fund.

This appeal is allowed accordingly. No order as to costs.

Sd/-

SOPHY THOMAS JUDGE

smp