Kerala High Court
Joseph vs Faisal & Others on 1 July, 2022
M.A.C.A.872/2009
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
MACA NO. 872 OF 2009
AGAINST THE ORDER/JUDGMENT IN OPMV 2406/2004 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL ,PERUMBAVOOR
APPELLANT/PETITIONER IN O.P.(M.V):
JOSEPH,S/O.DEVASSY, THEKKEKKARA HOUSE,, VELIYATHUNADU
KARA, ALUVA.
BY ADVS.
SRI.P.V.BABY
SRI.A.N.SANTHOSH
RESPONDENTS/RESPONDENTS IN O.P(M.V):
1 FAISAL, S/O.ABU
PARIYARATHU HOUSE,, PIPELINE ROAD,, THAIKKATTUKARA
P.O., ALUVA.
2 P.M.MAJEED, S/O. P.K.MOIDEEN
PANICKARUVEETTIL HOUSE,, THAIKKATTUKARA P.O., ALUVA.
3 UNITED INDIA INSURANCE CO.LTD.
IIND FLOOR, P.M.S.BUILDING, ELOOR ROAD, KALAMASSERY,
ERNAKULAM DISTRICT.
BY ADV SRI.P.K.MANOJKUMAR, SC, UNITED INDIA INSURANCE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
M.A.C.A.872/2009
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C.JAYACHANDRAN, J.
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M.A.C.A.No.872 of 2009
---------------------------------------------
Dated this the 1st day of July, 2022
J U D G M E N T
Jayachandran, J.
1. The claimant before the Tribunal, who
preferred this appeal, was a 39 year old driver and he
met with an accident on 26.10.2004 during the course of
driving an autorikshaw, suffering serious injuries.
The award dated 18.09.2008 in O.P.(M.V.)No.2406 of 2004
is assailed on the following grounds.
2. Firstly, learned counsel for the appellant
submitted that the claimant suffered a whole body
permanent disability of 22%, as certified by the
Medical Board, whereas, the Tribunal has reckoned only
10%. Learned counsel would hasten to add that a doctor,
who was a member of the Medical Board, was examined to
prove Annexure - A15 disability certificate. This
M.A.C.A.872/2009
Court is of the opinion that disability of 22% as
certified by the Board is liable to be reckoned.
Secondly, learned counsel submitted that the claimant
was an inpatient for a total period of 50 days in three
different spells at various hospitals and he had to
continue treatment for a period of 2 years. The
claimant had suffered multiple fractures as could be
seen from Annexure-A11 discharge summary. However, his
loss of earnings was reckoned only for a period of six
months. According to the learned counsel, the period of
one year, atleast, ought to have been reckoned, having
regard to the seriousness of the injuries and the
period of hospitalization. Learned counsel for the 3rd
respondent/insurance company submitted that a period of
one year will be on the higher side. Having regard to
the attendant facts and circumstances, this Court is of
the view that a period of 11 months can be reckoned
towards loss of earning.
M.A.C.A.872/2009
3. The third aspect is with respect to monthly
income, wherein, the claimant claim a sum of Rs.3,000/-
per month, whereas the Tribunal reckoned only
Rs.2,000/-. As a matter of fact, the notional income
as indicated in Ramachandrappa v. Manager, Royal
Sundaram Alliance Insurance Company Ltd. [2011 KHC
4675] is higher than the amount claimed. However, the
petitioner cannot aspire for more income than what he
had claimed. Therefore, this Court is inclined to
reckon the monthly income at Rs.3,000/-. Another count
is with respect to the bystander expenses, where the
Tribunal has reckoned a total amount of Rs.4,000/-. It
is not in dispute that the claimant was hospitalized
for a period of 50 days, wherefore, he is entitled to
bystander expenses @Rs.200/- per day. The amount under
the head has to be recalculated accordingly. Towards
extra nourishment, all what is seen is Rs.2,000/-,
which is enhanced to Rs.5,000/- having regard to the
M.A.C.A.872/2009
hospitalization and the seriousness of the injuries.
Against pain and suffering, Rs.25,000/- was the amount
granted by the Tribunal. Learned counsel for the
appellant pointed out that, petitioners had to undergo
two major surgeries and four minor surgeries. This
Court, therefore, fixes the amount payable on account
of pain and suffering at Rs.40,000/-. The last count
is with respect to loss of amenities. Learned counsel
pointed out that the claimant suffered 22% permanent
whole body disability at the age of 39, despite which,
the Tribunal only granted Rs.15,000/-. The same is
liable to be enhanced to Rs.25,000/-, even by a modest
estimation made by this Court.
4. Disability will be accordingly modified by
taking the notional income at Rs.3,000/- and reckoning
the disability at 22% with multiplier 15 [correcting
the wrong multiplier of 16 as applied by the Tribunal).
M.A.C.A.872/2009
5. The impugned award is also assailed on the
question of contributory negligence found by the
learned Tribunal on the claimant. The same is seen
done only on the basis of scene mahazar, which course
can hardly be sustained. A Bench decision of this Court
in New Indian Assurance Company Limited v. Pazhaniammal
[2011(3) KLT 648], as also, the judgment of the Supreme
Court in Jiju Kuruvila and Ors. v. Kunjujamma Mohan and
Others [2013(9) SCC 166] would amplify that the
document to be reckoned for the purpose of assigning
contributory negligence, pending trial, is the final
report. In the instant case, going by the final report
produced, the negligence is attributed to the driver of
the offending vehicle and not on the claimant.
Applying the dictum in the judgments above referred,
this Court set aside the finding of the Tribunal as
regards the contributory negligence on the part of the
claimant.
M.A.C.A.872/2009
6. Resultantly this M.A.C.A is allowed and the
amount to be paid to the claimant is as indicated in
the tabular statement given below.
Sl. Head of Claim Amount Total amount
No. awarded by after enhancement
the Tribunal in appeal
1 Loss of earnings 12,000 33,000
(3000x11)
2 Treatment expenses 1,97,600 1,97,600
3 Transportation expenses 3,000 3,000
4 Pain and Suffering 25,000 40,000
5 Loss of Amenities 15,000 25,000
7 Attendant's charges 4,000 10,000
8 Extra Nourishment 2,000 5,000
9 Disability 38,400 1,18,800
(3000x12x15x
22/100)
M.A.C.A.872/2009
Total 2,97,250 4,32,650/-
1,48,625/-
(297250x50%)
Amount enhanced = Rs.4,32,650 - Rs.1,48,625/ = Rs.2,84,025/
7. The Insurance Company shall pay interest for
the amounts awarded by the Tribunal at the rate
directed in the impugned award and for the enhanced
amount, at the rate of 5% from the date of petition. If
any amount has already been paid, the same shall be
granted set off. The claimant shall produce the details
of the Bank account before the Insurance
Company/Tribunal within two months from the date of
receipt of a certified copy of this judgment and amount
shall be transferred to the Bank account directly
through NEFT/RTGS mode, within a period of one month
thereafter. If the Bank account is not given within the
time stipulated, it is made clear that, no interest
shall run on the enhanced amount after the period
M.A.C.A.872/2009
stipulated by this Court. However, if the Insurance
Company fails to deposit the amount, as directed,
interest on the enhanced amount shall also run at the
rate ordered by the Tribunal from the date of petition.
The appeal is allowed to the above extent.
Sd/-
C.JAYACHANDRAN
JUDGE
Sbna/
