Johnson vs Ramachandran C.R
2022 Latest Caselaw 8310 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
             THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
    FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
                       MACA NO. 1831 OF 2013
AGAINST THE AWARD DATED 11.04.2013 IN OPMV 135/2006 OF MOTOR
                ACCIDENTS CLAIMS TRIBUNAL, THRISSUR
APPELLANT/PETITIONER:

             JOHNSON, AGED 41 YEARS,
             S/O.LATE OUSEPH, KANNANAICKAL HOUSE,
             PONNORE P.O, THRISSUR DISTRICT.
             BY ADVS.
             SRI.C.HARIKUMAR
             SMT.ANUROOPA JAYADEVAN


RESPONDENTS/RESPONDENTS:

    1        RAMACHANDRAN C.R.
             S/O.RAGHAVAN, 5/372A, CHEMMAGATTUVALAPPILHOUSE,
             AMALA NAGAR P.O, THRISSUR 680 555.
    2        UNNIMON, AGED 48 YEARS,
             S/O.RAGHAVAN, VALIAPARAMBIL HOUSE,
             MANALI, AMBALLUR P.O, THRISSUR 680 302.
    3        ORIENTAL INSURANCE CO.LTD.
             BRANCH OFFICE, GURUVAYOOR ROAD, KUNNAMKULAM P.O,
             THRISSUR 680 523.

             BY ADV SRI.VPK.PANICKER


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 27.06.2022, THE COURT ON 01.07.2022 DELIVERED THE
FOLLOWING:
 M.A.C.A.No.1831/2013             2




                    A. BADHARUDEEN, J.
             ================================
                    M.A.C.A.No.1831 of 2013
             ================================
                Dated this the 1st day of July, 2022

                             JUDGMENT

Award dated 11.04.2013 in OP(MV).No.135/2006 on the file

of Motor Accidents Claims Tribunal, Thrissur, is under challenge in

this appeal at the instance of the original petitioner. The

respondents are the respondents before the Tribunal.

2. Heard the learned counsel for the petitioner and the

learned counsel appearing for the 3rd respondent insurance

company.

3. Brief facts :

On 30.11.2005 at about 5.45 p.m, while the appellant was

pedaling his bicycle through Kunnamkulam - Thrissur public road,

when he reached near Mundur, bus bearing Reg.No.KL7/S 5181

came from behind and hit on the appellant. The appellant sustained

severe injuries. He was taken to Amala hospital and treated there

as inpatient. The accident was due to rash and negligent driving of

the 2nd respondent, the driver of the bus. At the time of the

accident, the bus was owned by the 1st respondent and insured with

the 3rd respondent.

4. The 3rd respondent filed written statement, disputing the

accident and negligence, while admitting policy. Quantum of

compensation also was disputed. The Tribunal went on trial and

marked Exts.A1 to A11 on the part of the appellant. No evidence

adduced by the respondents. Ext.X1 case diary also got marked.

On appreciation of the evidence, the Tribunal granted Rs.80,300/-

as against the claim of Rs.4 lakh.

5. While challenging the award amount, the learned

counsel for the appellant would submit that the monthly income of

the appellant fixed by the Tribunal at Rs.3,000/- is less in this case

where the appellant,who was aged 34 years at the time of accident

and doing coolie work, had claimed Rs.5,000/- as his monthly

income. In fact, following the ratio in [(2011) 13 SCC 236],

Ramachandrappa v. Manager, Royal Sundaram Alliance

Insurance Company Ltd., Rs.5,000/- ought to be fixed in this case

involving the accident of the year 2005. This aspect is not opposed

by the learned counsel for the insurance company also. Therefore,

for calculating loss of earnings and loss of disability income, the

monthly income of the appellant is fixed at Rs.5,000/-.

6. Another challenge raised is with regard to the

percentage of disability accepted by the Tribunal. It is argued by

the learned counsel for the appellant that though Ext.A11 certificate

showing 7% disability had been placed before the Tribunal, the

Tribunal fixed the disability at 4.5% and the same is on lower side.

7. Opposing increase in the percentage of disability, the

learned counsel for the insurance company would point out that the

Doctor, who issued Ext.A11 disability certificate, was not

examined and the appellant failed to produce a disability certificate

issued by a competent Medical Board. Therefore, the Tribunal in

consideration of the injury and treatment, fixed the disability at

4.5%.

8. In this case, the appellant sustained the following

injuries as borne out from Ext.A2 wound certificate and Ext.A6

discharge summary.

"Severe head injury, fracture maxilla, fracture Zygoma Rt.,

fracture scapula Lt., severe injury to lungs, fracture Ltd. Ribs with

flail segment, severe lacerated wound and puncherd wound around

on scalp face, upper limbs, trunk, chest injury, multiple bodily

injuries."

9. The appellant underwent inpatient treatment for a

period of 22 days. It is true that the appellant sustained severe head

injury with fracture of maxilla, fracture of zygoma Rt., fracture of

scapula and fracture of Lt. ribs. In view of the matter, I am

inclined to take 7% disability in this matter as against 4.5% fixed

by the Tribunal. In this case the Tribunal granted Rs.9,000/-

towards loss of earnings for 3 months @ Rs.3,000/-. Considering

the injuries and treatment, I am inclined to grant loss of earnings

for a period of 4 months @ Rs.5,000/-, which would come to

Rs.20,000/-, out of which Rs.9,000/- was granted by the Tribunal.

Hence Rs.11,000/- more is granted under the head loss of earnings.

The disability income is as under:

5000 X 12 X 16 X 7/100 = Rs.67,200/-, out of which

Rs.25,920/- was granted by the Tribunal. Therefore, Rs.41280/-

more is granted under the head loss of disability income. The

Tribunal granted Rs.15,000/- under the head pain and sufferings

and Rs.12,000/- under the head loss of amenities and enjoyment of

life. Therefore, the same require reconsideration. Accordingly,

Rs.5,000/- more each is granted under the head pain and

sufferings and loss of amenities.

In the result, this appeal is allowed in part. It is ordered that

the appellant is entitled to get enhanced compensation to the tune

of Rs.62,280/- (Rupees Sixty two thousand two hundred eighty

only) with interest @ 8% per annum granted by the Tribunal from

the date of petition till the date of deposit or realisation excluding

the period of 61 days wherein, grant of interest was specifically

disallowed by the order in C.M.Application No.1/2013 dated

21.12.2021. The insurance company is directed to deposit the same

in the name of the appellant within two months from today. On

deposit, the appellant can release the same.

Sd/-

(A. BADHARUDEEN, JUDGE) rtr/