Leelamma vs Abhilash E.M. And Others
2022 Latest Caselaw 6245 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
              THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
        FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
                        MACA NO. 2484 OF 2010
   O.P.(M.V.) 801/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA
APPELLANT/PETITIONER:

            LEELAMMA
            W/O. THOMAS @ MOHANAN
            PUTHENPURACKAL HOUSE,
            CHAMPAKKARA KARA,
            KARUKACHAL VILLAGE,
            AT PRESENT RESIDING AT THAYYIL HOUSE,
            THEKKUMMURI KARA,
            PULIYANNOOR VILLAGE.

            BY ADVS.SRI.MATHEW JOHN (K)
                    SRI.DOMSON J.VATTAKUZHY


RESPONDENTS/RESPONDENTS:

    1       ABHILASH E.M.
            S/O. MADHAVAN P.A.
            ELAVUMKAL HOUSE,
            CHAMPAKKARA POST,
            NETHALLOOR BHAGOM,
            KARUKACHAL.

    2       SUNILKUMAR,
            VIJAY ASSOCIATES
            NISSAM BUILDING,
            ICO JUNCTION,
            CHANGANACHERRY.

    3       THE MANAGER,
            NATIONAL INSURANCE COMPANY
            LIMITED,
            PARAKKADAVIL SHOPPING COMPLEX,
            OPPOSITE NO.1,
            PRIVATE BUS STAND,
            PALACE ROAD,
            CHANGANASSERY.

            R3 BY ADV. SRI.GEORGE CHERIAN THIRUVALLA
     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 03.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 M.A.C.A.No.2484 OF 2010         2


                          JUDGMENT

Award in O.P.(M.V.) No. 801/2008 dated

29.04.2010 is under challenge in this appeal at the

instance of the petitioner, where the respondents before

the Tribunal are the respondents.

2. Heard the learned counsel for the appellant,

and the learned counsel appearing for the Insurance

Company.

3. Summary of the case :-

The appellant who sustained injuries as a result of a

road traffic accident occurred on 07.06.2008 at 12.00

noon while travelling as a pillion rider in a motor cycle

bearing Registration No.KL-4-E-1831 claimed

compensation to a tune of Rs.2,50,000/- before the

Tribunal on the allegation that the accident was the

contribution of negligence on the part of the first

respondent who had driven autorickshaw bearing

Registration No. KL-5-Q-2135 at the time of accident in

a rash and negligent manner.

4. The third respondent, Insurance Company

filed written statement disputing the negligence and the

quantum of compensation. Policy to the vehicle alleged

to be involved in the accident was admitted.

5. The first respondent also filed written

statement taking more or less the same contentions

taken by the Insurer. The second respondent was

declared set ex-parte before the Tribunal.

6. The Tribunal jointly tried O.P.(M.V.) Nos.

801/2008 and 769/2008, after recording the evidence

given by PW1 and Exts.A1 to A23 on the part of the

appellant and Exts. B1 to B3 on the part of the

respondents. Ext.X1 disability certificate also got

marked as court exhibit.

7. Finally, the Tribunal granted Rs.1,22,100/- as

compensation fastening liability upon the Insurance

Company.

8. The learned counsel for the appellant would

submit that the monthly income fixed by the Tribunal at

the rate of Rs. 3,000/- is less in this matter. The

appellant being a rubber tapper claimed Rs. 6,000/- as

her monthly income.

9. Since, the monthly income claimed at

Rs. 6,000/- is less than the amount entitled as per the

ratio in [(2011) 13 SCC 236], Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance

Company Ltd., the learned counsel for the third

respondent also not opposed fixing of monthly income

at Rs. 6,000/-.

10. In this matter, disability, age and multiplier

applied by the Tribunal are not in dispute. Therefore, the

award requires re-assessment, based on the monthly

income fixed at Rs. 6,000/-, and the injuries sustained.

11. In paragraph No. 9 of the award, the tribunal

discussed the injuries sustained by the appellant and the

same are type III open fracture both bones (R) leg.

Paragraph No. 9 of the award is extracted as under:-

"Ext.A6 is the O.P. ticket dated 12.07.2008 which indicates that the petitioner sustained both bone fracture on (R) leg - and lateral condylar tibia. The age of the petitioner is written as 46 years. Ext.A7 is the treatment certificate issued from Malankara Orthodox Syrian Church, Medical College Hospital, Kolenchery. It indicates that the petitioner was admitted on 19.08.2008 with deep vein thrombosis of (R) leg. It indicates that deep vein thrombosis can be attributed to the fact that she was immobile following the fracture and surgery. Ext.A8 is the medical certificate which is dated 10.03.2006. This document is not connected with the accident and hence it is rejected. Ext.A9 is the discharge card which indicates that the petitioner was admitted on 07.06.2008 and discharged on 13.06.2008. She has been treated by wound debridement and external skeletal fixation. Ext.A10 is the discharge card which indicates that the petitioner was admitted on 24.06.2008 and discharged

on 19.08.2008. This is issued from District Hospital, Idukki. It also indicates that the patient developed pelvic vein thrombosis. Ext.A11 is the discharge card issued from District Hospital, Idukki. It indicates that petitioner was admitted on 01.09.2008 and discharged on 01.11.2008. Ext.A12 is the scan report of Colour Doppler - Right Lower Limb Venous System. It indicates that extensive acute/sub acute deep venous thrombosis (DVT) involving right external iliac, common femoral, superficial femoral, deep femoral and popliteal veins, minimal/partial recanlization in the popliteal vein and partial extension of common femoral vein thrombus through the saphenofemoral valve into the proximal part of long saphenous vein. Ext. A13 is the scan report of Colour Doppler - Right Pelvis & Thigh Venous System. It indicates that known case of deep venous thrombosis, the present scan shows: changes of chronic DVT with partial recanalization (40 to 50% patency) in the common femoral vein, Chronic DVT sequelae with contracted lumen and partial recanalization in the proximal segment of superficial femoral vein, patent common iliac, external iliac and popliteal veins, Sapheno- femoral valve is free of thrombus in the present scan. Ext.A14 is the photographs of the petitioner. Ext.A17 is the original discharge card which indicates that the petitioner was admitted on 07.06.2008 and discharged

on 13.06.2008. Ext.A18 indicates that petitioner has deep vein thrombosis and she was advised to continue treatment with anticoagulants and has periodic blood tests as there was a risk of recurrence of deep vein thrombosis."

12. The Tribunal granted 'loss of earnings' for

three months at the rate of Rs. 3,000/-. In view of the

injuries as extracted as above, the learned counsel for

the appellant canvassed increase under the head 'loss of

earnings' for a period of five months.

13. I am inclined to grant 'loss of earnings' for a

period of four months at the rate of Rs.5,000/-.

Accordingly, the 'loss of earnings' in this case would

come to Rs.5,000 x 4 = Rs.20,000/-, out of which

Rs.9,000/- was paid by the Tribunal, the balance

Rs.11,000/- more is granted under this head.

14. Coming to disability income, the same shall

be re-calculated as Rs.5,000x12x7/100x13 =

Rs.54,600/-, out of which Rs.27,300/- already granted

by the Tribunal and Rs.27,300/- is the balance.

Therefore, under the said head Rs.27,300/- more is

granted.

15. It is submitted by the learned counsel for the

appellant that 'by-standers expenses' granted at the rate

of Rs. 50/- per day for a period of 126 days is on lower

side and the same requires reconsideration. The same is

also re-calculated as Rs. 150/- x 126 = Rs. 18,900/-, out

of which Rs.6,300/- already granted by the Tribunal and

thus Rs.12,600/- more is granted under this head. The

Tribunal granted Rs.20,000/- under the head 'pain and

suffering'. Considering the seriousness of the injuries

and prolonged treatment, I am inclined to grant

Rs.10,000/- more under this head. Towards 'loss of

amenities', the Tribunal granted Rs. 10,000/- and I am

inclined to increase the same by Rs. 10,000/- more.

16. In the result, this appeal is allowed. It is

ordered that the appellant is entitled to get enhanced

compensation to the tune of Rs.70,900/- (Rupees

Seventy Thousand and Nine Hundred only) with the

same rate of interest awarded by the Tribunal, excluding

the amount already granted by the Tribunal, from the

date of petition till the date of deposit or realisaiton

excluding the period of 106 days wherein, grant of

interest was specifically excluded as per order in C.M.

Application No. 1/2010 (C.M. Appln. No. 3220/2010)

dated 17.02.2022.

The Insurance Company is directed to deposit the

balance amount in the name of the appellant within two

months from today and on deposit, the appellant can

release the same.

Sd/-

A. BADHARUDEEN JUDGE DCS/03.06.2022