Kerala High Court
T.V. Mathai vs P.A. Baiju on 9 September, 2021
Author: T.R.Ravi
Bench: T.R.Ravi
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 9TH DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943
MACA NO. 1211 OF 2012
AGAINST THE AWARD DATED 02.12.2011 IN OPMV 371/2009 OF MOTOR
ACCIDENTS CLAIMS TRIBUNAL, KALPETTA, WAYANAD
APPELLANT/PETITIONER:
T. MATHAI
AGED 57 YEARS, S/O. VARKEY,
THAKARAPPALLIL VEEDU, P.O.KUNNAMANGALAM,
NALLOORMAD VILLAGE, MANANTHAVADY TALUK,
WAYANAD DISTRICT.
BY ADVS.
SRI.R.SUDHISSH
SMT.M.MANJU
SRI.K.R.RANJITH
RESPONDENTS/RESPONDENTS:
1 P.A. BAIJU, S/O. P.P.AUGUSTY,
1/147, PUTHUPARAMBIL HOUSE,
NADAVAYAL,
WAYANAD DISTRICT 673101.
2 NATIONAL INSURANCE COMPANY LTD.
REPRESENTED BY ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE-I, P.B.NO.207,
PARCO TOWER, IVTH FLOOR,
P.M.TAJ ROAD, KOZHIKODE-673 001.
BY ADV SRI.GEORGE CHERIAN THIRUVALLA, FOR R2
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 25.08.2021, THE COURT ON 09.09.2021 DELIVERED THE
FOLLOWING:
MACA NO.1211 OF 2012
2
JUDGMENT
The appellant while travelling in a car, on 09.02.2009 from Wayanad to Theni met with an accident, wherein the car capsized and fell into a nearby field. The appellant sustained injuries of fracture of medial malleolus left and a sprain in the ankle. He was taken to the Well Care Hospital, Palakkad. Ext.A4 is the wound certificate issued. He was treated as an inpatient for one day and was discharged on 10.02.2009. He continued his treatment from Leo Hospital, Kalpetta, where he was treated between 10.02.2009 to 17.02.2009 and later between 23.08.2010 to 26.08.2010 for the purpose of removing the implant. He had preferred a claim before the Motor Accidents Claims Tribunal, Wayanad. The Tribunal awarded a sum of ₹84,900/- with interest at the rate of 7.5% per annum as compensation. Aggrieved by the quantum of the compensation awarded, the appellant has preferred MACA NO.1211 OF 2012 3 this appeal.
2. Heard Sri.Sudhissh R., learned counsel for the appellant and Sri.George Cherian, learned counsel for the respondents.
3. The main contention of the appellant is that the Tribunal went wrong in fixing the notional income of the appellant as ₹3,000/-. According to the appellant, he was working as a Coolie as well as was an Agriculturist and he had claimed ₹6,000/- to be his monthly income. Relying on the decision in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd., reported in [AIR 2011 SC 2951], it is contended that the appellant is entitled to have his notional income fixed at ₹6,000/- at least since the accident happened 5 years after the accident that was considered in Ramachandrappa supra. There is no serious objection to this contention from the insurer also since the law on the point is well settled. Another contention raised by the appellant is that the Tribunal did not MACA NO.1211 OF 2012 4 grant any amount towards loss of amenities and that the amount granted towards pain and suffering was very low. The next contention that is raised is that the petitioner was hospitalised for 13 days and the bystanders expenses that was granted was only at the rate of ₹100 per day, which was on the lower side. It is further contended that the multiplier of 8 was wrongly applied. According to the appellant, he was 55 years old at the time of accident and the multiplier to be adopted was 11. Annexure A5 discharge summary would show the age of the appellant as 54. Annexure A8 discharge summary from the Leo Hospital also shows his age as 54 years. The claim petition shows his age as 55 years. It is seen from the file that on 26.08.2009, the Electoral Identity Card of the petitioner had also been placed before the Tribunal, which shows that his age as on 01.01.1999 was 45 years. Since there is no specific proof regarding the age, I do not find anything wrong with the finding of the MACA NO.1211 OF 2012 5 Tribunal that he had crossed the age of 55 at the time of the accident, which took place on 09.02.2009. Going by the judgment in Sarla Verma v. Delhi Transport Corporation reported in 2010(2) KLT 802 (SC) the multiplier to be adopted in the case of persons who have crossed 55 years is 9. The multiplier 8 adopted by the Tribunal is hence not correct and it is to be 9 instead. Since no amount has been granted under the head loss of amenities, I am of the opinion that the appellant can be granted a sum of ₹15,000/- towards loss of amenities. The manner in which the Tribunal had arrived at the compensation is shown in the form of a table:
Sl. Head of the Claim Amount Amount No. Claimed(Rs.) Awarded(Rs.) 1 Loss of earning (total) Rs.36,000/- Rs.9,000/- 2 Loss of earning Nil Nil (partial) 3 Medical and Rs.50,000/- Rs.32,000/-
miscellaneous expenses 4 Future treatment N.A. N.A. 5 Bystanders expenses Rs.5,000/- Rs.1,300/- 6 Transportation expenses Rs.20,000/- Rs.2,000/- 7 Extra nourishment Rs.3,000/- Rs.1,300/- 8 Damage to clothing, Rs.1,000/- Rs.500/-
etc. MACA NO.1211 OF 2012 6 9 Pain and suffering Rs.25,000/- Rs.10,000/- 10 Loss of dependency N.A. N.A. 11 Loss of consortium N.A. N.A. 12 Loss of love and N.A. N.A. affection 13 Compensation for Rs.25,000/- Rs.28,800/-
permanent disability 14 Loss of amenities and N.A. N.A. convenience, etc. 15 Loss of earning power Rs.25,000/- Nil 16 Mental shock Rs.25,000/- N.A. Total Rs.84,900/-
4. In the light of the modifications, which are required for arriving at the just compensation, as indicated in the previous paragraph, the compensation payable to the appellant is re-fixed in the following manner:
Sl. Head of the Amount Amount Amount as No. Claim Claimed(Rs.) Awarded(Rs.) modified by this Court(Rs.) 1 Loss of earning Rs.36,000/- Rs.9,000/- Rs.18,000/-
(total) (6000x3)
2 Loss of earning Nil Nil
(partial)
3 Medical and Rs.50,000/- Rs.32,000/- Rs.32,000/-
miscellaneous
expenses
4 Future treatment N.A. N.A.
5 Bystanders Rs.5,000/- Rs.1,300/- Rs.2,600/-
expenses (200x13)
6 Transportation Rs.20,000/- Rs.2,000/- Rs.2,000/-
expenses
7 Extra Rs.3,000/- Rs.1,300/- Rs.1,300/-
MACA NO.1211 OF 2012
7
nourishment
8 Damage to Rs.1,000/- Rs.500/- Rs.500/-
clothing, etc.
9 Pain and Rs.25,000/- Rs.10,000/- Rs.10,000/-
suffering
10 Loss of N.A. N.A.
dependency
11 Loss of N.A. N.A.
consortium
12 Loss of love and N.A. N.A.
affection
13 Compensation for Rs.25,000/- Rs.28,800/- Rs.64,800/-
permanent (6000x12x9x
disability 10/100)
14 Loss of N.A. N.A. Rs.15,000/-
amenities and
convenience,
etc.
15 Loss of earning Rs.25,000/- Nil Nil
power
16 Mental shock Rs.25,000/- N.A. N.A
Total Rs.84,900/- Rs.1,46,200/-
In the result, the appellant will be entitled to an additional amount of ₹61,300/- (Rupees Sixty One Thousand Three Hundred only) towards enhanced compensation. The 2nd respondent shall deposit the enhanced compensation awarded by this Court along with interest at the rate of 9% per annum from the date of the petition (26.08.2009) till the date of payment, within 2 months from the date of receipt of a certified copy of this judgment, after deducting MACA NO.1211 OF 2012 8 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.
The appeal is disposed of as above.
Sd/-
T.R.RAVI JUDGE Pn