Kerala High Court
Ravi vs P.Radhakrishnan on 2 August, 2024
MACA NO. 1437 OF 2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 2ND DAY OF AUGUST 2024 / 11TH SRAVANA, 1946
MACA NO. 1437 OF 2018
AGAINST THE AWARD DATED 31.12.2016 IN OPMV NO.834 OF 2010 OF
ADDITIONAL DISTRICT COURT-II & IST ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIBUNAL , MAVELIKKARA
APPELLANT/PETITIONER:
RAVI
S/O. MADHAVAN, AAKASH BHAVANAM, HARIPPAD,
KARTHIKAPPALLY P.O, ALAPPUZHA.
BY ADVS.
SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SRI.P.J.JOE PAUL
SRI.MANU SEBASTIAN
RESPONDENTS/RESPONDENTS:
1 P.RADHAKRISHNAN
S/O. PARAMESWARA PANICKER,KALIYATHU
PADINJAREPUTHEKANDATHIL,VETTUVENI,
HARIPPAD 690 511
2 SUDHAMANY
W/O. V. SASIDHARAN, VAISAKH, NANGIARKULANGARA
P.O,HARIPPAD 690 514
3 THE ORIENTAL INSURANCE CO. LTD
REPRESENTED BY ITS DIVISIONAL MANAGER,
THIRUVALLA 689 101.
MACA NO. 1437 OF 2018
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BY ADVS.
ARUN BOSE
P.BHARATHAN
B.BIPIN
THARA THAMBAN
R.REJI
M.V.THAMBAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 02.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SOPHY THOMAS, J.
=====================
MACA No.1437 of 2018
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JUDGMENT
Dated this the 02nd day of August, 2024
This appeal is at the instance of the claimant in OP (MV)
No.834 of 2010 on the file of Additional Motor Accidents Claims
Tribunal, Mavelikkara impugning the award on the ground of
inadequacy of compensation.
2. On 21.02.2010 at about 02.30 pm, while the appellant was
riding a motorcycle, he was knocked down by KL-29-5464 car
driven by the 1st respondent in a rash and negligent manner. He
sustained serious injuries including compound fracture of femur
and fracture of both bones of right leg. He was admitted and
treated in hospital in five different occasions for a total of 54 days.
He was a mason, aged 37 earning monthly income of Rs.6,000/-.
He approached the Tribunal claiming compensation of
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Rs.2,00,000/-, and the Tribunal awarded compensation of
Rs.3,38,614/- only. Hence this appeal.
3. The 1st respondent was the driver, 2nd respondent was
the owner, and the 3rd respondent was the insurer of the offending
car. The accident as well as the policy of the offending vehicle as
on the date of accident are not disputed. But Learned counsel for
the 3rd respondent would contend that since the Tribunal awarded
amount exceeding their claim, the appeal itself is not maintainable.
4. But learned counsel for the appellant would submit that
the amount awarded is not the just compensation, considering the
nature of injuries, period of hospitalization, and also the disability
suffered by the appellant due to the injuries sustained in the
accident. In Sreekumar v. the Divisional Manager, the National
Insurance Company Ltd. 2022 (3) KHC 467, a Division Bench of
this Court held that, when there is denial of just compensation, and
the claimant had suffered a legal grievance by the award passed,
then even if the award amount is more than what is claimed, the
claimant can be said to be aggrieved, to maintain an appeal.
Since the case of the appellant is that though the award amount is
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more than what is claimed, it is not the just compensation eligible,
he can be treated as an aggrieved person to maintain this appeal.
5. Now regarding the quantum of compensation, learned
counsel for the appellant would submit that, the Tribunal fixed
notional income of the appellant @ Rs.4,500/- though he was
earning monthly income of Rs.6,000/-. He produced Exts. A11 and
A12 to show that he was a member of the Kerala Building and
Other Construction Workers Welfare Board as a mason. He would
rely on the decision Ramachandrappa v. Manager, Royal
Sundaram Alliance Insurance Company Limited [AIR 2011
SC 2951], to say that in the year 2010, even a coolie worker was
eligible to get his notional income fixed @ Rs.7,500/-. But since
the claim of the appellant was that, his monthly income was
Rs.6,000/-, this Court is inclined to accept that income, so as to fix
it as his notional income.
6. Learned tribunal awarded loss of earning for three months
only. The appellant had suffered compound fracture of femur and
fracture of both bones of right leg. He was hospitalized for 54
days in total. So this Court is inclined to assess his loss of earning
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for a period of 8 months @ Rs.6,000/- and so he is eligible to get
Rs.48,000/-. After deducting Rs.13,500/- awarded by the Tribunal,
he will get the balance Rs.34,500/-
7. Towards extra nourishment, learned tribunal awarded only
Rs.3,000/-. He was hospitalized for 54 days in total, and so this
Court is inclined to award Rs.2,000/- more under the head extra
nourishment.
8. Towards pain and suffering, learned tribunal awarded only
Rs.30,000/. Considering the nature of injuries, period of
hospitalization, and the various surgical procedures he had
undergone during that period, this Court is inclined to award
Rs.10,000/- more under the head pain and suffering.
9. Towards bystander expenses, learned tribunal awarded
Rs.8,800/- granting Rs.200/- per day for 44 days of inpatient
treatment. But in fact, he was admitted for 54 days in hospital.
Since there was compound fracture of femur, and fracture of both
bones of right leg, even after discharge, he might have been under
the support of a bystander. So, this Court is inclined to grant
bystander expenses for a total period of 80 days @ Rs.200/-,
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which will come to Rs.16,000/-. After deducting Rs.8,800/-
awarded by the tribunal, he is entitled to get the balance
Rs.7,200/-
10. Ext.A13 disability certificate shows that, the appellant
had suffered permanent disability of 18%. PW1 doctor deposed
before Court that the disability assessed by him was with respect
to whole body and it was not for any particular limb.
11. Learned counsel for the appellant would submit that
since the appellant was a mason, he had to stand and sit for a
long time but due to the disability suffered, he was not able to
squat and stand for a long time. Moreover, there was limping also
as seen from Ext.A13 certificate. So, this Court is inclined to
assess his functional disability as 23% though Ext.A13 shows his
permanent disability as 18% only. Taking his monthly @
Rs.6,000/-, compensation for 23% disability can be assessed as
Rs.2,48,400/- (6000 x 12 x 15 x 23/100). After deducting
Rs.2,18,700/- awarded by the Tribunal, he will get the balance
Rs.29,700/-.
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12. Towards loss of amenities, learned tribunal awarded only
Rs.10,000/-. He was a 37-year-old mason at the time of accident.
Due to the injuries, he suffered limping and he was not able to
squat or stand for a long time. So, this Court is inclined to award
Rs.15,000/- more under the head loss of amenities.
13. The compensation awarded by the Tribunal under all other
heads seems to be reasonable, and hence it needs no modification.
Head of claim Amount Amount Difference to be
awarded by awarded in drawn as
the Tribunal appeal enhanced
compensation
Loss of earning 13,500/- 48,000/- 34,500/-
Extra 3,000/- 5,000/- 2,000/-
nourishment
40,000/- 10,000/-
Pain and suffering 30,000/-
Bystander 8,800/- 16,000/- 7,200/-
expense
Permanent 2,18,700/- 2,48,400/- 29,700/-
disability
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10,000/- 25,000/- 15,000/-
Loss of amenities
98,400/-/-
Total
14. So, the appellant is entitled to get enhanced compensation
of Rs.98,400/-.
15. The 3rd respondent insurer is directed to deposit the
enhanced compensation of Rs.98,400/- with 9% interest per
annum from the date of petition till the date of deposit (excluding
283 days of delay in filing the appeal) before the Additional Motor
Accidents Claims Tribunal, Mavelikkara, within a period of two
months from the date of receipt of a copy of this judgment.
Learned tribunal shall disburse that amount to the appellant after
deducting the liabilities, if any, towards Tax, balance court fee, and
legal benefit fund.
The appeal is allowed to the extent as above and no order as
to costs.
Sd/-
SOPHY THOMAS
JUDGE
RMV
