Kerala High Court
Venugopal vs M/S.Sri Pappa Chemicals on 5 October, 2012
Bench: K.T.Sankaran, M.L.Joseph Francis
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
FRIDAY, THE 5TH DAY OF OCTOBER 2012/13TH ASWINA 1934
MACA.No. 73 of 2012 ()
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OPMV.899/2003 of M.A.C.T.,ATTINGAL
APPELLANT/CLAIMANT:
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VENUGOPAL, S/O. KUTTAN PILLAI, SARASWTHIVILAS, VIKAS NAGAR
SREEKARYAM POST, THIRUVANANTHAPURAM.
BY ADV. SRI.P.V.CHANDRA MOHAN
RESPONDENTS/RESPONDENT:
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1. M/S.SRI PAPPA CHEMICALS, 45, METTUVELLALAR STREET,
KONDALAMPATTY, SALEM. 636010.
2. M/S/ UNITED INDIA INSURANCE CO. LTD.
DIVISIONAL OFFICE, NO. 1, CWC BUILDING
IMS COMPOUND, PALAYAM, TRIVANDRUM. 33.
3. JOBINSA SHANAVAS, W/O. LATE SHANAVAS, AMITHAF,
BETHANI LANE, GANDHIPURAM, SREEKARIYAM POST
THIRUVANANTHAPURAM 17.
4. SAINULABDEEN, S/O. ABDUL REHMAN, AMITHAF, BETHANI LANE
GANDHIPURAM, SREEKARIYAM POST, THIRUVANANTHAPURAM 17.
5. FATHIMA BEEVI, W/O. SAINULABDEEN, AMITHAF, BETHANI LANE
GANDHIPURAM, SREEKARIYAM POST, THIRUVANANTHAPURAM 17.
6. M/S. THE ORIENTAL INSURANCE CO. LTD.
DIVISIONAL OFFICE NO. II, ST.MARY VILLA, ULLOOR
MEDICAL COLLEGE POST, THIRUVANANTHAPURAM.
R6 BY ADV. SRI.VPK.PANICKER
R2 BY ADV. SRI.M.A.GEORGE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 6.9.2012, THE COURT ON 5.10.2012 DELIVERED THE
FOLLOWING:
K.T.SANKARAN &
M.L.JOSEPH FRANCIS JJ.,
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M.A.C.A. No.73 of 2012 B
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Dated this the 5th day of October, 2012
JUDGMENT
Joseph Francis J., This appeal is filed by the applicant in O.P.(M.V.) No.899of 2003 on the file of M.A.C.T., Attingal.
2. The case of the applicant in O.P. No.899 of 2003 is briefly as follows. On 4.2.2003 at 7.00 a.m., the applicant was driving a Swaraj Mazda Mini bus bearing Reg.No.KL-01/V-2802 along Manackal-Salem national highway towards Salem in moderate speed and as per traffic rules. When the vehicle reached at Rasipuram, a Matador van bearing registration No.TN-27/T-6768 came from the opposite direction in a rash or negligent manner and dashed against the mini bus driven by the applicant. Applicant sustained severe injuries and he was immediately taken to Surya M.A.C.A. No.73 of 2012 :2: Hospital, Rasipuram, Manackal, wherein he was treated as inpatient till 6.2.2003. After discharge, he continued treatment in Medical College Hospital, Thiruvananthapuram as inpatient from 7.2.2003 till 30.5.2003. After discharge he continued as outpatient treatment there. Applicant is a driver aged 40 years earning Rs.7,000/- per month. First respondent is the owner and 2nd respondent is the insurer of the Matador Van bearing Reg. No.TN-27/T-6768. Respondent Nos.3 to 5 are the legal representatives of the registered owner of Swaraj Mazda Mini bus bearing Reg. No.KL-01/V-2802. 6th respondent is the insurer of the said bus. The applicant claimed Rs.10,00,000/- as compensation.
3. Respondent nos.2 and 6 filed written statements and other respondents remained exparte. Second respondent, United India Insurance Company Ltd., the insurer of the Matador van bearing Reg.No.TN-27/T-6768 admitted that the said vehicle was validly insured as on the date of occurrence. The insured never intimated the insurer about the occurrence or produce documents relating to the vehicle and the driving license and badge of the driver. Thus the policy condition is violated. The compensation claimed is M.A.C.A. No.73 of 2012 :3: exorbitant.
4. Sixth respondent filed written statement admitting the policy of the vehicle driven by the claimant/petitioner and contended that the accident was due to the rash and negligent driving of the driver of the Matador Van and that the compensation claimed is excessive.
5. No oral evidence was adduced from both sides. Exts.A1 to 18 and Ext.X1 were marked. The Claims Tribunal on considering the evidence found that the accident was due to the rash and negligent driving of the driver of the vehicle owned by the first respondent and awarded a compensation of Rs.2,18,380/- to the claimant together with interest at the rate of 7.5% per annum from 21.6.2003 (date of application) till the date of award. Second respondent was ordered to pay the compensation amount, as the insurer of that vehicle. Being dissatisfied with the quantum of compensation awarded, the claimant filed this appeal.
6. Heard learned counsel for the appellant and learned counsel for the Insurance Company.
M.A.C.A. No.73 of 2012 :4:
7. Learned counsel for the appellant submitted that the compensation awarded is very low and that the appellant is entitled to get enhanced compensation under various heads. Learned counsel for the Insurance Company supported the award.
8. The Claims Tribunal awarded the compensation under various heads as follows:
(i) Rs.20,000/- towards loss of earning for 10 months taking the monthly income of the claimant as Rs.2,000/- per month.
(ii) Rs.5,000/- towards transportation to hospital
(iii) Rs.4,000/- towards extra nourishment
(iv) Rs.250/- as damage to clothing and articles.
(v) Rs.62,130/- as medical expenses
(vi) Rs.6,000/- as bystander expenses
(vii) Rs.72,000/- towards compensation for permanent disability. (Rs.2,000x12x15x20/100)
(vii) Rs.24,000/- towards loss of amenities in life
(ix) Rs.25,000/- towards compensation for pain and suffering.
9. Ext.A2 is the copy of the wound certificate which shows that due to the accident, the appellant sustained the following injuries:
"(1)grade III comminuted fracture both bones of left M.A.C.A. No.73 of 2012 :5: leg upper third. (2) fracture tibia upper third . grade I, (3) fracture grade III tibia, (4) cut injury over the right arm and fore-arm and (5) multiple abrasion over the body."
10. Ext.A5 is the discharge card from Medical College Hospital, which shows that the appellant was admitted on 4.2.2003 and discharged on 30.5.2003. The date of surgery is written in another ink. As per the discharge card, appellant was treated for the Type III compound fracture both bones of left leg, comminuted fracture right tibial condyle, fracture right medial malleolus. He was treated by C & D, sequestrectomy, Ilizarov ring fixation foe left leg. Conservative foe right left leg. He was discharged. At the time of discharge he was advised for review after two weeks. Exts.A6 and A7 are the certificate issued by Dr.Ravi of Surya Hospital, Rasipuram. Ext.A8 is a physiotherapy treatment card of Medical College Hospital, Thiruvananthapuram which shows that physical medicine treatment was given from 9th February 2004 onwards. Ext.A9 is an O.P. ticket from Government Ayurveda Hospital, Thiruvananthapuram. Ext.A10 is another O.P. ticket. He was treated there for Dushtavranam. The appellant also produced a M.A.C.A. No.73 of 2012 :6: disability certificate from Medical College Hospital dated 19.3.2004 assessing permanent disability of 20%. As per the said disability certificate, appellant was treated by wound debridement and external fixator on left leg and long leg slab on the right side at Surya hospital and discharged at his request on 6.2.2003. He was treated in Medical College Hospital, Thiruvananthapuram by repeated dressings, antibiotics, sequestrectomy and external fixator was removed and after one week Ilizarov ring fixator appllied on 10.5.2002. Distraction of corticotomy started on 19.5.2003 and discharged on 30.5.2003. Long leg cast was applied and plaster was removed on 12.1.2004. Thus from the date of occurrence on 4.2.2003 till 12.1.2004 he was continuing treatment in the Orthopaedic department and thereafter in the Physical Medicine department from 9.2.2004.
11. The Claims Tribunal accepted 20% as the percentage of permanent disability. The appellant was aged 40 years at the time of accident and therefore, the Tribunal took 15 as the suitable multiplier, which is correct. The appellant was a driver and the accident took place in 2003 and the Tribunal took Rs.2,000/- as his M.A.C.A. No.73 of 2012 :7: monthly notional income. The appellant has produced before this Court, a disability certificate dated 23.7.2010 issued by the Medical Board of District General Hospital, Thiruvananthapuram, showing that the appellant is having 30% disability of mild category. That disability certificate cannot be accepted in evidence to assess the disability of the appellant, as that disability certificate was not prepared for the purpose of assessing the compensation for the disability. Considering the nature of work done by the appellant as a driver, his monthly income can be taken as Rs.6,000/-. Calculating on that basis, the appellant is entitled to get Rs.60,000/- as compensation for loss of earning instead of Rs.20,000/- awarded by the Tribunal. Rs.50,000/- can be awarded towards compensation for loss of amenities in life instead of Rs.24,000/- awarded. Rs.1,00,000/- can be awarded as compensation for pain and suffering in the place of Rs.25,000/- awarded. Rs.2,16,000/- (Rs.6000x12x15x20/100) can be awarded as compensation for permanent disability instead of Rs.72,000/- awarded. Rs.50,000/- can be awarded towards future treatment expenses. Thus in total, the appellant is entitled to get additional compensation of M.A.C.A. No.73 of 2012 :8: Rs.3,35,000/-.
Accordingly the appeal is allowed in part allowing the appellant/applicant to realise a sum of Rs.3,35,000/- as additional compensation together with interest at the rate of 7.5% per annum, from the date of petition till the date of deposit from respondents 1 and 2. However, the appellant will not be entitled to get interest on the additional compensation for a period of 688 days, the extent of delay in filing the appeal. Second respondent is directed to deposit the amount within 3 months from this date. There is no order as to costs.
Sd/ K.T. SANKARAN, (JUDGE) Sd/-
M. L. JOSEPH FRANCIS, (JUDGE) dl/