Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943 MACA.No.2287 OF 2012 AGAINST THE AWARD IN OPMV 2639/2004 DATED 28.4.2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR. APPELLANT/CLAIMANT: RADHAKRISHNAN AGED 46 YEARS S/O.RAMAKRISHNAN, CHITTATTUPARAMBIL HOUSE, P.O.CHOORATTUKARA, THRISSUR DISTRICT. BY ADVS. SRI.V.V.JOY SRI.LOWEL CHERIAN RESPONDENTS/RESPONDENTS 1 VIJAYALAKSHMI NAIR, 'ANJALI', NEAR K.S.F.E.AYYANTHOLE, THRISSUR-3. 2 K.MADHAVAN, -DO- -DO-. 3 MS.NEW INDIA ASSURANCE CO.LTD. DIV. OFFICER, KOLLANNUR BUILDING, ROUND EAST, THRISSUR-I. R3 BY ADV. SRI.A.C.DEVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.03.2021, ALONG WITH MACA.2404/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943 MACA.No.2404 OF 2012 AGAINST THE AWARD IN OPMV 2640/2004 DATED 28-04-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR APPELLANT/CLAIMANT: RAJEEV, AGED 32 YEARS, S/O.RADHAKRISHNAN, VENKIDANGIL HOUSE NO.180, P.O.MANNUTHY, POPE NAGAR, THRISSUR DISTRICT. BY ADV. SRI.V.V.JOY RESPONDENTS/RESPONDENTS: 1 VIJAYALAKSHMI NAIR 'ANJALI', NEAR K.S.F.E. AYYANTHOLE, THRISSUR-3. 2 K.MADHAVAN - DO - 3 M/S.NEW INDIA ASSURANCE CO.LTD. DIV. OFFICER, KOLLANNUR BUILDING, ROUND EAST, THRISSUR-1. R1, R3 BY ADV. SRI.A.C.DEVY OTHER PRESENT: SRI.A.C.DEVY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.03.2021, ALONG WITH MACA.2287/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.V.KUNHIKRISHNAN, J -------------------------------- ------------------------------- Dated this the 26th day of March, 2021
JUDGMENT
These two appeals are connected and therefore, I am disposing these appeals by a common judgment. M.A.C.A. No.2404/2012 is filed by the petitioner in O.P.(MV) No. 2640/2004 and M.A.C.A.No.2287/2012 is filed by the petitioner in O.P.(MV) No.2639/2004. These two claim petitions were disposed by the Tribunal by a common award. (Hereinafter, the parties are referred as per their rank before the Tribunal).
2. The short facts are like this. The petitioner in O.P.(MV)
No.2639/2004 was riding a motor cycle bearing No.KL-8 E 4604 from Thrissur to Choorakkattukara. At a place near to Ayyanthole Church, a car bearing registration No. KL.8 X 2683 driven by the second respondent hit against the petitioner and the petitioner sustained injuries. The petitioner in O.P.(MV) No.2640/2004 was riding his motorcycle bearing registration No.KL-8 J 3484 from
Thrissur to Ayyanthole. At the same spot, the car bearing registration No. KL-8/X 2683 driven by the second respondent hit against this petitioner also and he also sustained serious injuries. The first respondent was the owner of the car involved in both the cases and the third respondent is the insurance company with which the car is insured. The claim petitions were filed claiming compensation.
3. To substantiate the case, Exts. A1 to A12 were marked on
the side of the petitioners. Ext.X1 is the medical examination report. Ext.B1 is the copy of the policy. After going through the evidence and documents, the Tribunal allowed the claim petition and granted an amount of Rs.1,54,730/- to the petitioner in O.P.
(MV) No.2639/2004 and Rs.10,000/- to the petitioner in O.P.(MV)
No.2640/2004. Aggrieved by the quantum of compensation awarded by the Tribunal, these two appeals are filed by the petitioners. The contentions of the petitioners in these two cases will be considered separately. M.A.C.A.No.2404/2012.
4. In this case, the petitioner submitted that the amount claimed by the petitioner is Rs.50,000/- and only an amount of Rs.10,000/- is granted by the Tribunal. The monthly income of the petitioner is taken as Rs.3,000/-. The counsel submitted that he was working as a sales man in a trading company. The accident happened in the year 2004. The Apex Court in the decision in Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co. Ltd. ( 2011 (13) SCC 236), fixed the monthly
income of a coolie as Rs.4,500/-. In the light of the above decision, I think, the monthly income of the petitioner can be safely fixed as Rs.4,500/-. The petitioner sustained the following injuries.
1. chip fracture 1st metacarpel. 2. Head (R) with dislocation of PIP joint (L) index finger. Considering the above injuries, the petitioner may not be able to go for work at least for a period of one month. Therefore, loss of earning ought to have been given for a period of one month. The Tribunal only granted an amount of Rs.1,500/-. The petitioner is entitled an additional amount of Rs.3,000/-.
5. Towards transport to hospital, the Tribunal already
granted an amount of Rs.5,00/-. No interference is necessary in this head. Towards extra nourishment no amount is awarded and the petitioner is entitled an amount of Rs.5,00/-. Similarly, towards damages to clothing also, another amount of Rs.5,00/- can be awarded. Towards pain and sufferings, the Tribunal awarded an amount of Rs.6,000/-. Considering the nature of injury, I think another amount of Rs.4,000/- can be allowed in that head. Towards loss of amenities, Rs.2,000/- is allowed by the Tribunal. Considering the entire facts and circumstances, another amount of Rs.3,000/- can be allowed on that head. Therefore, the enhanced amount entitled by the petitioner in O.P.(MV) No.2640/2004 can be summarised like this.
1. Loss of earning - Rs.3,000/-.
2. Extra nourishment - Rs.5,00/- 3.Damage to clothing - Rs.500/- 4.Pain and suffering - Rs.4,000/- 5.Loss of amenities - Rs.3,000/-. ---------------- Total - Rs.11,000/-
The appellant is entitled enhanced compensation of Rs.11,000/- with interest at the rate of 8% p.a from the date of petition till realisation. M.A.C.A.2287/2012
6. In this case, the petitioner sustained very serious injury including permanent disability. The injury sustained by the petitioner includes type III A open fracture both bones right leg and
multiple lacerated wound on right leg. Ext.X1 is the disability certificate issued by the medical board in which it is stated that the petitioner had a temporary disability of 50% for a period of 8 months, 20% for a further period of six months and a permanent orthopeadic disability of 5%. While assessing compensation for disability, the Tribunal took 5% disability.
7. The Tribunal fixed the monthly income of the petitioner as Rs.3,000/-. In the light of the decision of the Apex Court in
Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co. Ltd. ( 2011 (13) SCC 236), the monthly income of the petitioner can be safely fixed as Rs.4,500/-. The petitioner was a heavy vehicle goods driver. Considering the serious nature of the injury, the petitioner may not be able to do his regular work at least for six months. Therefore, the petitioner is entitled compensation for loss of earning for a period six months. Then the amount will be Rs.4500/- x 6= Rs.27,000/-.
8. Towards extra nourishment and damages to clothing no
amount is awarded. I think, the petitioner is entitled an amount of Rs.1,000/- & Rs.500/- each respectively towards the above heads. For bye-standers expenses, only an amount of Rs.6,300/- is awarded. According to the counsel, the appellant was in hospital for 42 days. If Rs.200/- is taken as the daily expenses, the amount will be Rs.8,400/-. Therefore, towards bye-standers expenses, the petitioner is entitled an amount of Rs.2,100/- more.
9. Towards pain and suffering, the Tribunal awarded only an
amount of Rs.20,000/-. Considering the serious nature of the injuries sustained by the appellant, I think another amount of Rs.5,000/- can be awarded in this head. Similarly, for loss of
amenities also, the petitioner is entitled another amount of Rs.5,000/- because the Tribunal only awarded an amount of Rs.15,000/-. Compensation for disability is to be reassessed based on the monthly income now fixed by this Court. Therefore the calculation is like this Rs.4,500/- x 12x15x5/100=Rs.40,500/-. The amount already granted by the Tribunal is Rs.27,000/- which is to be deducted. Then the balance amount will be Rs.13,500/-. Therefore, the enhanced compensation entitled by the appellant can be summarised like this.
1. Loss of earning - Rs.27000/-
2. Extra nourishment - Rs.1,000/-
3. Damage to clothing - Rs.500/-
4. Bye-stander's expenses - Rs. 2,100/-
5. Pain and suffering - Rs.5,000/-
6. compensation for disability- Rs.13,500/-
7. Loss of amenities - Rs.5,000/- Total - Rs.54,100/- The petitioner is entitled enhanced compensation of Rs.54,100/- with interest at the rate of 8% p.a. from the date of petition till realisation. In the result, these two appeals are disposed of in the following manner.
(i) M.A.C.A.No.2404/2012 is allowed in part. The impugned award is modified. The appellant/petitioner is entitled an enhanced compensation of Rs.11,000/- with interest at the rate of 8% p.a. from the date of petition till realisation.
(ii) M.A.C.A.No.2287/2012 is allowed in part. The impugned
award is modified. The appellant/petitioner is entitled an enhanced compensation of Rs.54,100/- with interest at the rate of 8% p.a. from the date of petition till realisation. Sd/- P.V.KUNHIKRISHNAN, JUDGE al/-