Chenthamara vs S.Prithiviraj
2022 Latest Caselaw 6982 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
               THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
        FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
                           MACA NO. 1050 OF 2012
   AGAINST THE AWARD DATED 25.11.2011 IN OPMV 376/2008 OF MOTOR
                     ACCIDENT CLAIMS TRIBUNAL, PALAKKAD
APPELLANT/PETITIONER:

             CHENTHAMARA
             S/O.VELAYUDHAN, AGED 44 YEARS,
             KURUKKAMPOTTA, ERATTAKULAM,
             NALLEPULLY, PALAKKAD.
             BY ADV SRI.BINOY VASUDEVAN


RESPONDENTS/RESPONDENTS:

    1        S.PRITHIVIRAJ
             S/O.SAMY RAJ, AGE NOT KNOWN,
             12AI NEHRUJI ROAD, PALANI, TAMIL NADU - 624 601
    2        NARAYANASWAMY
             S/O.MUTHURAMALINGAM CHETTIYAR STREET,
             BLASAMUDRAM, PAZHANI TALUK, TAMIL NADU - 624 601
    3        THE UNITED INDIA INSURANCE COMPANY LTD
             5, BIG BAZZAR, STREET,
             DHARAPURAM, TAMIL NADU - 638 656
             BY ADV SRI.P.K.MANOJKUMAR


     THIS    MOTOR     ACCIDENT   CLAIMS     APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA NO. 1050 OF 2012
                               2



                        JUDGMENT

Dated this the 17th day of June, 2022

This is an appeal filed under Section 173 of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the MV Act')

by the original petitioner in O.P.(MV).No.376/2008 before

the Motor Accidents Claims Tribunal, Palakkad assailing

award dated 25.11.2011 in the above case. The

respondents before the Tribunal are the respondents

herein.

2. Heard the learned counsel for the appellant as

well as the learned counsel for the 3 rd respondent -

Insurance Company.

3. The summary of the case is as follows:-

The appellant lodged claim under Section 166 of the

MV Act before the Tribunal, on the allegation that he

sustained serious injuries pursuant to an accident occurred MACA NO. 1050 OF 2012

on 12.12.2007 while he was travelling on a motor cycle

bearing registration No.TN 41J/223 due to the rashness

and negligence on the part of the second respondent. The

appellant claimed Rs.6,00,000/- as compensation from

respondents 1 to 3.

4. The first and second respondents were declared

ex parte by the Tribunal.

5. The third respondent-Insurance Company filed

written statement. While admitting policy, the negligence

and quantum of compensation under various heads were

opposed.

6. The Tribunal went on trial. The Tribunal marked

Exts.A1 to A116 on the side of the appellant. No evidence

adduced from the side of the respondents. Ext.X1

disability certificate also marked.

7. The Tribunal granted 3,48,100/- as

compensation along with interest at the rate of 7.5% per

annum.

MACA NO. 1050 OF 2012

8. It is argued by the learned counsel for the

appellant that the Tribunal fixed the monthly income of

the appellant at Rs.3,000/-, though the appellant claimed

Rs.3,500/- as the income. Therefore, he canvasses

re-fixation of the monthly income at Rs.3,500/-. This plea

is not opposed since the monthly income as per

Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Company Ltd. [(2011) 13 SCC

236] is higher than Rs.3,500/-. Therefore, Rs.3,500/- is

fixed as monthly income in this case for calculating 'loss

earnings' as well as 'disability', which is admittedly, 20%

accepted by the Tribunal.

9. As per Ext.A8 wound certificate produced, the

injuries sustained by the appellant are (1) Fracture

dislocation left hip with sciatic nerve palsy, (2) Fracture

lateral condyle left tibia (3) Grade-I open fracture right

proximal tibia, (4) Fracture right glaezyi, (5) C6, C7 sub

luxation with numbness both hand, (6) haematoma left MACA NO. 1050 OF 2012

side neck and (7) lacerated wound scalp. It could be

noticed that the appellant was admitted initially at Malabar

Hospital, Palakkad from 17.12.2007 to 21.01.2008 and he

was subjected to surgeries on 17.12.2007, 18.12.2007 and

21.12.2007 and also on 02.01.2008 and 10.01.2008, as

borne out from Exts.A9 and A14 discharge summaries

produced. Closed reduction of left hip and distal femoral

done on 17.12.2008 and implant fixation on tibia, forearm

and acetabulum were also done.

10. On the basis of the above factual scenario, I am

inclined to re-assess the compensation entitled by the

appellant. It could be gathered that the Tribunal granted

Rs.9,000/- towards 'loss of earnings' at the rate of

Rs.3,000/- per month. Considering the nature of injuries

and the repeated surgeries and treatment, I am of the

view that 'loss earnings' for a period of 6 months can be

granted at the rate of Rs.3,500/- per month. The same

would come to Rs.21,000/- (3,500 x 6). Accordingly, MACA NO. 1050 OF 2012

Rs.12,000/- (21,000 - 9,000) more is granted under the

head 'loss of earnings'.

11. Coming to 'disability income', the same also

requires re-calculation at the rate of Rs.3,500/- per month

since the multiplier 15 was accepted by the Tribunal by

accepting 20% disability assessed as per Ext.X1 Medical

Board Certificate.

Therefore, the 'disability income' is also re-calculated

as under:

3,500 x 12 x 15 x 20/100 = 1,26,000/-

Out of which, Rs.1,08,000/- was granted by the

Tribunal. Thus, Rs.18,000/- (1,26,000 - 1,08,000) more is

granted under the head 'loss of disability income'.

12. It appears that though injuries and treatment

underwent by the appellant as discussed above, the

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

sufferings' and Rs.10,000/- under the head 'loss MACA NO. 1050 OF 2012

amenities'. I am inclined to increase the compensation

under the head 'pain and sufferings' by Rs.15,000/- more

and 'loss of amenities' by Rs.15,000/- more. That apart,

towards 'extra nourishment', I am inclined to grant

Rs.5,000/- more.

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

held that the appellant is entitled to get Rs.4,13,100/- as

compensation. Out of which, Rs.3,48,100/- was granted by

the Tribunal and the balance amount of Rs.65,000/-

(Rupees sixty five thousand only) is granted as enhanced

compensation with the same rate of interest awarded by

the Tribunal, excluding interest for a period of 80 days

specifically excluded by this Court while allowing the delay

petition-C.M.Application No.1286 of 2012 as per order

dated 18.06.2012, payable by the Insurance Company,

from the date of petition till the date of deposit or

realisation.

MACA NO. 1050 OF 2012

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 nkr