Kerala High Court
Biju T.P vs Lijo M.Joy on 20 November, 2021
Author: Murali Purushothaman
Bench: Murali Purushothaman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
SATURDAY, THE 20TH DAY OF NOVEMBER 2021 / 29TH KARTHIKA, 1943
MACA NO. 3652 OF 2018
AGAINST THE AWARD DATED 31.8.18 IN OPMV 1292/2015 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM, ERNAKULAM
APPELLANT/CLAIMANT:
BIJU T.P, AGED 39 YEARS
S/O PADMANABHAN, THURUTHEL HOUSE,
RAJARSHI KAVALA, KANINADU P.O., VADAVUCODE VILLAGE,
KUNNATHUNADU TALUK, ERNAKULAM DISTRICT.
BY ADVS.
MATHEWS K.PHILIP
SMT.T.MANASY
RESPONDENT/RESPONDENTS:
1 LIJO M.JOY, S/O JOY, MARIYIL HOUSE,
THRIKKALATHOOR P.O, ERNAKULAM DIST - 683557.
2 SIJO, S/O.MATHEW, 7/229, KUNNATH HOUSE,
ELANJI P.O., ANTHIYAL, MUVATTUPUZHA - 686 665.
3 THE LEGAL-CLAIMS MANAGER
CHOLAMANDALAM GENERAL INSURANCE COMPANY LIMITED,
1ST FLOOR, ARAFA TOWER, M.C.ROAD, KOTTAYAM - 686 001.
BY ADVS.
SRI.BIBIN K.DIVAKARAN
SRI.C.C.ANOOP
SRI.P.JACOB MATHEW
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 20.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA NO. 3652 OF 2018 ..2..
JUDGMENT
The appellant is the claimant before the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV) No.1292/2015. This appeal is preferred dissatisfied with the quantum of compensation awarded by the Tribunal. The parties in this appeal are referred to as per their status in the claim petition.
2.The petitioner was a construction worker. While the petitioner was travelling in a scooter bearing Registration No. KL-40B 4381 as pillion rider, a tipper lorry bearing Registration No.KL-63-2131, driven by the 1st respondent and owned by the 2 nd respondent in a rash and negligent manner hit the scooter and the petitioner sustained serious injuries. The petitioner claimed an amount of Rs.10,00,000/- as total compensation for the injuries sustained in the accident.
MACA NO. 3652 OF 2018 ..3..
3. The 3rd respondent insurance company filed written statement admitting that the tipper lorry was covered by a valid policy of insurance at the time of the accident, however, contended that the accident happened not due to the negligent driving of the tipper lorry. The 3rd respondent also contended that the amount claimed under various heads are excessive.
4. The Tribunal found that the accident happened due to the negligence of the driver of the tipper lorry. The Tribunal awarded a total compensation of Rs.3,65,900/- under various heads as shown below:
Sl. Heads Amount Amount
No. claimed awarded (in
Rs.)
1. Loss of earnings 1,40,000 40,000
2. Transport to hospital 3,000 3,000
and back to home
3. Extra nourishment 10,000 5,000
4. Damage to clothes and 2,000 1,000
MACA NO. 3652 OF 2018 ..4..
articles
5. Bystander expenses 45,000 7,500
6. Treatment expenses 1,50,000 1,49,400
7. Compensation for pain 1,00,000 40,000
and sufferings
8. Compensation forloss 50,000 30,000
of amenities and
comforts
9. Future treatment 50,000 0
expenses
10. Compensation for 4,50,000 90,000
disability
Total 10,00,000/- 3,65,900/-
Claim amount Rs.10,00,000/-
5. The Tribunal has taken the monthly income of the petitioner as Rs.10,000/-. According to the petitioner, the petitioner was having a monthly income of Rs.18,000/- at the time of the accident. Being a MACA NO. 3652 OF 2018 ..5..
construction worker, his monthly income can be taken as Rs.12,000/-. The petitioner was hospitalised for 30 days. The Tribunal has found that there is loss of earnings for a period of 4 months and awarded an amount of Rs.40,000/- towards that head. Taking note of the nature of injuries sustained, the period of hospitalization, the nature of job of the petitioner, I find that the period of loss of earnings has to be taken as 6 months. Therefore, I re-fix the compensation under the head loss of earnings as Rs.12,000x6=Rs.72,000/-. Therefore, the petitioner is entitled for an enhanced amount of Rs.32,000/- (Rs.72,000-40,000) under the head loss of earnings.
6. Under the head pain and sufferings, an amount of Rs.40,000/- has been awarded. The petitioner has claimed an amount of Rs.1,00,000/- towards pain and sufferings. On going through the nature of injuries MACA NO. 3652 OF 2018 ..6..
sustained by him and the period of hospitalisation, I find that an amount of Rs.10,000/- more can be awarded under the head pain and sufferings. Therefore, I re-fix the amount of compensation under the head pain and sufferings as Rs.50,000/-.
7. Under the head loss of amenities and comforts, an amount of Rs.30,000/- is awarded. He has sustained open fracture dislocation of right ankle and other injuries. After hearing the learned Counsel for the petitioner and the learned Senior Counsel for the Insurance company, I find that Rs.20,000/- more can be awarded under the said head and I re-fix the compensation for loss of amenities and comforts as Rs.50,000/-.
8. With regard to the compensation for disability, the petitioner was aged 36 years at the time of the accident and the Tribunal has rightly taken the MACA NO. 3652 OF 2018 ..7..
multiplier as '15'. The Medical Board has certified the percentage of disability of the petitioner as 5%. Since I have re-fixed the monthly income of the petitioner as Rs.12,000/-, the petitioner will be entitled for an enhanced amount of Rs.18,000/-
[12,000x12x15x5/100= 1,08,000 - 90,000] under the head compensation for disability.
9. No amount has been awarded by the Tribunal towards compensation for future treatment. Going by the nature of injuries noted by the Tribunal and after hearing both sides, I find that an amount of Rs.10,000/- can be awarded under the head compensation for future treatment expenses.
Thus, the appeal is allowed in part. The petitioner is entitled for an enhanced compensation of Rs.90,000/- (Rupees ninety thousand only) [32,000+10,000+20,000+18,000+10,000] with 8% MACA NO. 3652 OF 2018 ..8..
interest per annum from the date of petition till realisation with proportionate cost which I fix as Rs.3,000/-. The 3rd respondent insurance company shall deposit the additional compensation awarded in this appeal by way of cheque in favour of the petitioner before the Tribunal within a period of two months from the date of receipt of a certified copy of this appeal.
Sd/-
MURALI PURUSHOTHAMAN JUDGE SB/20/11/2021