Kerala High Court
Shiji vs Thankachan on 15 November, 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
THURSDAY, THE 15TH DAY OF NOVEMBER 2012/24TH KARTHIKA 1934
MACA.No. 1818 of 2012 ()
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OPMV.1693/2005 of MACT MUVATTUPUZHA
APPELLANT/PETITIONER:
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SHIJI, AGED 35 YEARS
D/O.MATHEW, KUMMANATTU HOUSE, RAMALLOOR
KOTHAMANGALAM.
BY ADVS.SRI.SOORAJ T.ELENJICKAL
SRI.K.NIRMALAN
RESPONDENTS/RESPONDENTS:
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1. THANKACHAN
S/O.ABRAHAM, ATTUPURAM HOUSE, CHERANELLOOR P.O.
ERNAKULAM-683544.
2. LIJO PAUL
MUTTOMTHOTTIL HOUSE, CHUNANGUMVELI P.O.
ALUVA-683101.
3. THE ORIENTAL INSURANCE CO.LTD.,
BRANCH OFFICE, JYOTHI BAZAR, THODUPUZHA-685584.
4. THE MANAGING DIRECTOR
KSRTC, THIRUVANANTHAPURAM-695001.
R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)
SC, ADV. A.R.GEORGE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 12-11-2012, THE COURT ON 15-11-2012 DELIVERED
THE FOLLOWING:
K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.
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M.A.C.A. No.1818 of 2012
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Dated 15th November, 2012.
J U D G M E N T
Joseph Francis, J.
This appeal is filed by the petitioner in O.P.(MV) No.1693 of 2005 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha.
2. The case of the petitioner in the O.P.(MV) is briefly as follows : On 23.7.2005 at about 2.15 p.m., while the petitioner was travelling in the bus bearing Registration No.KL- 7/AU 2843 driven by the first respondent from east to west along the Aluva - Munnar public road, the same was hit on the KSRTC bus bearing Registration No.KL-15/1139 which came form the opposite direction at the northern side of the said road, as a result of which, she sustained serious injuries. The accident occurred solely due to the rash and negligent driving of the bus bearing Registration No.KL-7/AU-2843 by the first respondent. The second respondent was the owner of the offending vehicle and the third respondent was the insurer. The 4th respondent is the Managing Director of the KSRTC bus involved in the accident. The petitioner claimed `1,09,200/- as M.A.C.A. No.1818 of 2012 2 compensation.
3. Respondents 1 and 2 remained ex parte. The third respondent filed written statement admitting the policy of the offending vehicle and contended that the accident was not due to the negligence of the first respondent and that the compensation claimed is excessive. The 4th respondent filed written statement contending that the accident was due to the negligence of the first respondent and that the compensation claimed is exorbitant.
4. Before the Tribunal, PW1 and PW2 were examined and Exts.A1 to A9 and X1 were marked. The learned Claims Tribunal, on considering the evidence on record found that the accident was due to the rash and negligent driving of the first respondent and awarded a compensation of `70,500/- to the petitioner together with interest at the rate of 8% per annum from the date of petition till the date of realization from the respondents 1 to 3 and the third respondent was directed to deposit the amount as the insurer. Being dissatisfied with the quantum of compensation awarded, the petitioner filed this appeal.
M.A.C.A. No.1818 of 2012 3
5. Heard the learned counsel for the appellant and the learned counsel appearing for the Insurance Company.
6. The 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. The learned counsel appearing for the Insurance Company supported the award.
7. The Tribunal awarded compensation under various heads as follows :-
Head Amount claimed Amount awarded
(Rs) (Rs)
Compensation for loss of earning 16000 4500
General expenses : Transportation,
extra nourishment, damage to clothe
etc. 7000 4000
Medical expenses 4200 25563
Pain and suffering 12000 10000
Loss of amenities 10000 8000
Compensation for loss of earning due
to permanent disability
(1500 x 12 x 17 x 6/100) 60000 18360
Total 109200 70423
8. Ext.A4 is the wound certificate issued from St.Joseph's Hospital, Kothamangalam, which would show that the petitioner was admitted in that hospital on 24.7.2005 with M.A.C.A. No.1818 of 2012 4 pastiche injury eight elbow, contusion on right cheek just below right eye with periorbital oedema and contusion left knee with small abrasion sustained in a road traffic accident. Ext.A5 is the discharge summary issued from that hospital which would show that the petitioner was admitted in that hospital on 24.7.2005 and was discharged on 29.7.2005. Ext.A6 is the treatment certificate issued from St.Joseph Hospital, Kothamangalam, which would show that the petitioner was admitted in that hospital on 24.7.2005 with crack fracture right lower medial condyle. Ext.A7 is the treatment certificate issued from Chazhikattu Hospital, Thodupuzha which would show that the petitioner was treated in that hospital from 24.11.2006 for instability of right knee. She was admitted on 8.12.2006 and underwent arthroscopy of right knee on 9.12.2006 and arthroscopic reconstruction was done. She was treated with analgesics and antibiotics and discharged on 19.12.2006. On 26.12.2006 R.O.Brace was applied and she underwent physiotherapy from 2.1.07 to 12.1.07. Ext.A8 is the disability certificate issued by M.S.Bosalai, Consultant Orthopaedic Surgeon and formerly Deputy Director of KHS which would M.A.C.A. No.1818 of 2012 5 evidence that the petitioner had 9% permanent disability with respect to the whole body according to the Mc Bride scale, permanent in nature. The learned Claims Tribunal, taking into consideration Ext.A8 certificate and other relevant records, assessed the permanent disability of the petitioner as 6%.
9. According to the petitioner, at the time of accident, she was a construction worker and was earning `4,000/- per month. But, the Tribunal assessed the monthly income of the petitioner as `1,500/-, which according to us is on the lower side and we fix the monthly income of the petitioner as `3,000/-. The Tribunal took '17' as the suitable multiplier since the petitioner was in the age group of 26 to 30 years. The evidence on record would show that due to the accident, the petitioner was undergoing treatment for about six months and therefore, `18,000/- can be awarded towards compensation for loss of earnings for six months, instead of `4,500/- awarded by the Tribunal. Calculating the compensation for permanent disability, the petitioner is entitled to get `36,720/- (3000 x 12 x 17 x 6/100) in the place of `18,360/- awarded by the Tribunal. Considering the nature of injuries sustained, `12,000/- can be M.A.C.A. No.1818 of 2012 6 awarded towards compensation for pain and suffering in the place of `8,000/- awarded by the Tribunal. Thus, in total, the petitioner is entitled to get `33,860/- as additional compensation.
Accordingly, this appeal is allowed in part and the appellant/petitioner is allowed to realize `33,860/- as additional compensation together with interest at the rate of 7.5% per annum from the date of petition till the date of realization from the respondents 1 to 3 and the third respondent is directed to deposit the amount within three months from this date. There is no order as to costs.
Sd/-
K.T.SANKARAN, JUDGE.
Sd/-
M.L.JOSEPH FRANCIS, JUDGE.
tgs
(true copy) P.S. to Judge.