Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943 MACA NO. 3470 OF 2015 AGAINST THE AWARD IN OPMV 305/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA, WAYANAD APPELLANT/PETITIONER: SHINTO AGED 27 YEARS SON OF JOSEPH, NEDUMTHOTTATHIL HOUSE, PATTAVAYAL POST, TAMIL NADU. BY ADVS. SRI.S.EASWARAN SRI.M.A.AUGUSTINE SRI.P.MURALEEDHARAN IRIMPANAM SRI.P.SREEKUMAR THOTTAKKATTUKARA RESPONDENTS/RESPONDENTS:
1 MOHAN M.G. SON OF GOPALAN, MUPPRAPADAVIL HOUSE, PULPALLY POST,WAYANAD DISTRICT - 673 592. 2 THE BRANCH MANAGER NEW INDIA INSURANCE COMPANY LTD, M.G.T. BUILDING, KALPETTA, WAYANAD - 673 592. BY ADVS. SRI.PMM.NAJEEB KHAN P.THOMAS GEEVERGHESE TONY THOMAS (INCHIPARAMBIL) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.09.2021, THE COURT ON 29.10.2021 DELIVERED THE FOLLOWING: M.A.C.A.No.3470 of 2015 :-2-:
T.R.RAVI, J.
-------------------------------------- M.A.C.A.No.3470 of 2015 ----------------------------------------------- Dated this the 29th day of October, 2021
JUDGMENT
The case of the appellant is that while he was riding on a motor cycle towards Gudallur, a jeep driven by the 1st respondent in a rash and negligent manner, hit his motor cycle, causing it to overturn, resulting in serious injuries to the appellant. He was taken to the Government Head Quarters Hospital, Vythiri and later on shifted to the Medical College Hospital, Kozhikode. The appellant sustained serious injuries including a fracture on his left leg as seen from Exts.A8 and A9. He had to be hospitalised for a period of 148 days spread between 25.1.2010 and 19.11.2011.
2. According to the appellant, he was working as a Web
Designer and he was 23 years old at the time of the accident. He claimed that he was earning a monthly income of Rs.25,000/-. Ext.A10 series pay slips produced to prove the income shows that the appellant was earning around Rs.12,000/- per month as M.A.C.A.No.3470 of 2015 :-3-: salary. The District Medical Board, Mananthavady had issued Ext.C1 Disability certificate showing that the appellant had a disability of 6% as per McBride scale and 16 % as per NIOH scale. The certificate also shows that the appellant had difficulty in walking on slope and squatting, that there was 1 inch shortening of the left leg, that there was an ugly puckered scar on the left lower leg and partial ankylosis left ankle with no dorsi flexion. A claim was preferred for a sum of Rs.8,00,000/-. The Tribunal granted a total compensation of Rs.3,06,003/- with interest. The appellant has filed this appeal seeking enhancement of the compensation granted by the Tribunal.
3. Heard the counsel for the appellant and the respondents.
4. The counsel for the appellant contended that the
compensation awarded by the Tribunal under the heads loss of earnings, future treatment, bystanders expenses, extra nourishment, pain and suffering, permanent disability and amenities are all very meagre and are liable to be enhanced. It is M.A.C.A.No.3470 of 2015 :-4-: submitted that admittedly the appellant was hospitalised for 148 days spread over almost two years and hence loss of earnings ought to have been granted for at least one year instead of six months. It is submitted that no amount was granted towards future treatment. It is further submitted that the bystanders expenses ought to have been granted at the rate of at least Rs.200/- per day. The counsel contends that the compensation for extra nourishment that is granted is only Rs.5,000/- which is very less considering 148 days of hospitalisation. It is also submitted that considering the nature of the injuries and the long hospitalisation, the compensation awarded under the heads pain and suffering and loss of amenities should have been granted as claimed i.e. Rs.1,00,000/- under each of the heads in the place of Rs.25,000/- and Rs.10,000/- granted by the Tribunal. It is also prayed that the compensation for permanent disability should be on the basis of 16% disability assessed by the Medical Board.
5. The Standing Counsel for the insurer submitted that
the Tribunal has granted a reasonable compensation and there is M.A.C.A.No.3470 of 2015 :-5-: no reason to grant additional compensation. It is further submitted that if the Court is inclined to grant additional compensation, the same may not carry interest for the long delay of 656 days in filing the appeal.
6. The claim made by the appellant under different heads of compensation, and the amount which has been awarded by the Tribunal are shown in the form of a table:
Sl. Head of the Claim Amount Amount No. Claimed(Rs.) Awarded(Rs.) 1 Transportation expenses Rs.15,000/- Rs.8,000/- 2 Extra Nourishment Rs.50,000/- Rs.5,000/- 3 Loss of Earning Rs.3,00,000/- Rs.72,000/- (12000x6) 4 Medical & Miscellaneous Rs.50,000/- Rs.14,683/- expenses 5 Bystanders expenses Rs.25,000/- Rs.14,800/- (148x100) 6 Pain and Sufferings Rs.1,00,000/- Rs.25,000/- 7 Permanent Disability Rs.1,00,000/- Rs.1,55,520/- (12000x12x18 x6/100) 8 Damage to clothing etc. Rs.1,000/- Rs.1,000/- 9 Future treatment NIL NIL 10 Loss of amenities and Rs.1,00,000/- Rs.10,000/- conveniences caused 11 Compensation for loss of Rs.1,00,000/- NIL
M.A.C.A.No.3470 of 2015 :-6-: earning power 12 Loss of expectation of life Rs.1,00,000/- NIL 13 Loss of earning(Partial) NIL NIL Total Rs.9,41,000/- Rs.3,06,003/- limited to Rs.8,00,000/-
7. I have considered the contentions of the appellant and
the 2nd respondent insurer and I am of the considered opinion that the contentions raised by the counsel for the appellant except with regard to future treatment are justified. There is no reason to reduce the 16% disability assessed to 6%, particularly since there is no contra evidence against the report of the Medical Board. As regards the bystanders expenses, I am of the opinion that the amount granted at the rate of Rs.100/- per day is liable to be increased as Rs.200/- per day. Having regard to the nature of the injuries suffered by the appellant, the hospitalisation for 148 days spread over almost two years, I am of the opinion that the compensation under the head "pain and suffering" is liable to be increased to Rs.50,000/- and loss of amenities increased to 25,000/-. The appellant is entitled to extra nourishment at the M.A.C.A.No.3470 of 2015 :-7-: rate of Rs.200/- per day for the 148 days of hospitalisation. I am of the opinion that the Tribunal has granted just compensation as regards the other heads of compensation.
8. In the light of the above findings, the compensation
awarded by the Tribunal is liable to be enhanced and modified in the manner shown in the table below: Sl. Head of the Claim Amount Amount Amount after No. Claimed(Rs.) Awarded(Rs.) modification by this Court 1 Transportation Rs.15,000/- Rs.8,000/- Rs.8,000/- expenses 2 Extra Rs.50,000/- Rs.5,000/- Rs.29,600/- Nourishment 3 Loss of Earning Rs.3,00,000/- Rs.72,000/- Rs.1,44,000/- (12000x6) (12000x12)
4 Medical & Rs.50,000/- Rs.14,683/- Rs.14,683/- Miscellaneous expenses 5 Bystanders Rs.25,000/- Rs.14,800/- Rs.29,600/- expenses (148x100) (148x200) 6 Pain and Rs.1,00,000/- Rs.25,000/- Rs.50,000/- Sufferings 7 Permanent Rs.1,00,000/- Rs.1,55,520/- Rs.4,14,720/- Disability (12000x12x18 (12000x12x18 x6/100) x16/100) 8 Damage to Rs.1,000/- Rs.1,000/- Rs.1,000/- clothing etc. M.A.C.A.No.3470 of 2015 :-8-: 9 Future NIL NIL NIL
treatment 10 Loss of Rs.1,00,000/- Rs.10,000/- Rs.25,000/- amenities and conveniences caused 11 Compensation Rs.1,00,000/- NIL NIL for loss of earning power 12 Loss of Rs.1,00,000/- NIL NIL expectation of life 13 Loss of NIL NIL NIL earning(Partial) Total Rs.9,41,000/- Rs.3,06,003/- Rs.7,16,603/- limited to Rs.8,00,000/-
9. In the result, the appeal is allowed. The compensation
granted by the Tribunal is enhanced by a further sum of Rs.4,10,600/- (Rupees Four lakhs Ten Thousand Six Hundred only) with interest at 9% per annum on the enhanced compensation from 11.02.2011 till the date of realisation, with proportionate costs. The appeal was filed with a delay of 656 days. The delay was condoned by this Court by order dated 24.03.2021 on condition that the enhanced compensation if awarded in the appeal will not carry interest for the period of M.A.C.A.No.3470 of 2015 :-9-: delay. The 2nd respondent shall hence not be liable to pay the interest awarded on the enhanced compensation in this appeal for the 656 days of delay. The 2nd respondent insurer shall deposit the additional compensation granted in this appeal along with the interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the appellant is liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellant shall be in accordance with law. Sd/- T.R.RAVI JUDGE /-- dsn