Chenthama ra S/O Vel ayudhan v United India Insurance Co Ltd and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944 ``` ``` MACA NO. 1050 OF 2012 ``` ``` AGAINST THE AWARD DATED 25.11.2011 IN OPMV 376/2008 OF MOTOR ``` # **`ACCIDENT CLAIMS TRIBUNAL, PALAKKAD`** ## **`APPELLANT/PETITIONER:`** ``` CHENTHAMARA S/O.VELAYUDHAN, AGED 44 YEARS, KURUKKAMPOTTA, ERATTAKULAM, NALLEPULLY, PALAKKAD. BY ADV SRI.BINOY VASUDEVAN ``` ## **`RESPONDENTS/RESPONDENTS:`** |**`1`**|**`S.PRITHIVIRAJ`**| |---|---| ||**`S/O.SAMY RAJ, AGE NOT KNOWN,`**| ||**`12AI NEHRUJI ROAD, PALANI, TAMIL NADU – 624 601`**| |**`2`**|**`NARAYANASWAMY`**| ||**`S/O.MUTHURAMALINGAM CHETTIYAR STREET,`**| ||**`BLASAMUDRAM, PAZHANI TALUK, TAMIL NADU – 624 601`**| |**`3`**|**`THE UNITED INDIA INSURANCE COMPANY LTD`**| ||**`5, BIG BAZZAR, STREET,`**| ||**`DHARAPURAM, TAMIL NADU – 638 656`**| ||**`BY ADV SRI.P.K.MANOJKUMAR`**| ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1050 OF 2012 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 17[th] day of June, 2022 This is an appeal filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the MV Act’) by the original petitioner in O.P.(MV).No.376/2008 before the Motor Accidents Claims Tribunal, Palakkad assailing award dated 25.11.2011 in the above case. The respondents before the Tribunal are the respondents herein. 2. Heard the learned counsel for the appellant as well as the learned counsel for the 3[rd] respondent - Insurance Company. 3. The summary of the case is as follows:- The appellant lodged claim under Section 166 of the MV Act before the Tribunal, on the allegation that he sustained serious injuries pursuant to an accident occurred ``` MACA NO. 1050 OF 2012 ``` ``` 3 ``` on 12.12.2007 while he was travelling on a motor cycle bearing registration No.TN 41J/223 due to the rashness and negligence on the part of the second respondent. The appellant claimed Rs.6,00,000/- as compensation from respondents 1 to 3. 4. The first and second respondents were declared ex parte by the Tribunal. 5. The third respondent-Insurance Company filed written statement. While admitting policy, the negligence and quantum of compensation under various heads were opposed. 6. The Tribunal went on trial. The Tribunal marked Exts.A1 to A116 on the side of the appellant. No evidence adduced from the side of the respondents. Ext.X1 disability certificate also marked. 7. The Tribunal granted 3,48,100/as compensation along with interest at the rate of 7.5% per annum. ``` MACA NO. 1050 OF 2012 ``` ``` 4 ``` 8. It is argued by the learned counsel for the appellant that the Tribunal fixed the monthly income of the appellant at Rs.3,000/-, though the appellant claimed Rs.3,500/- as the income. Therefore, he canvasses re-fixation of the monthly income at Rs.3,500/-. This plea is not opposed since the monthly income as per **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]** is higher than Rs.3,500/-. Therefore, Rs.3,500/- is fixed as monthly income in this case for calculating ‘loss earnings’ as well as ‘disability’, which is admittedly, 20% accepted by the Tribunal. 9. As per Ext.A8 wound certificate produced, the injuries sustained by the appellant are (1) Fracture dislocation left hip with sciatic nerve palsy, (2) Fracture lateral condyle left tibia (3) Grade-I open fracture right proximal tibia, (4) Fracture right glaezyi, (5) C6, C7 sub luxation with numbness both hand, (6) haematoma left ``` MACA NO. 1050 OF 2012 ``` ``` 5 ``` side neck and (7) lacerated wound scalp. It could be noticed that the appellant was admitted initially at Malabar Hospital, Palakkad from 17.12.2007 to 21.01.2008 and he was subjected to surgeries on 17.12.2007, 18.12.2007 and 21.12.2007 and also on 02.01.2008 and 10.01.2008, as borne out from Exts.A9 and A14 discharge summaries produced. Closed reduction of left hip and distal femoral done on 17.12.2008 and implant fixation on tibia, forearm and acetabulum were also done. 10. On the basis of the above factual scenario, I am inclined to re-assess the compensation entitled by the appellant. It could be gathered that the Tribunal granted Rs.9,000/- towards ‘loss of earnings’ at the rate of Rs.3,000/- per month. Considering the nature of injuries and the repeated surgeries and treatment, I am of the view that ‘loss earnings’ for a period of 6 months can be granted at the rate of Rs.3,500/- per month. The same would come to Rs.21,000/- (3,500 x 6). Accordingly, ``` MACA NO. 1050 OF 2012 ``` ``` 6 ``` **Rs.12,000/-** (21,000 – 9,000) more is granted under the head ‘loss of earnings’. 11. Coming to ‘disability income’, the same also requires re-calculation at the rate of Rs.3,500/- per month since the multiplier 15 was accepted by the Tribunal by accepting 20% disability assessed as per Ext.X1 Medical Board Certificate. Therefore, the ‘disability income’ is also re-calculated as under: 3,500 x 12 x 15 x 20/100 = 1,26,000/- Out of which, Rs.1,08,000/- was granted by the Tribunal. Thus, **Rs.18,000/-** (1,26,000 – 1,08,000) more is granted under the head ‘loss of disability income’. 12. It appears that though injuries and treatment underwent by the appellant as discussed above, the Tribunal granted Rs.20,000/- under the head ‘pain and sufferings’ and Rs.10,000/- under the head ‘loss ``` MACA NO. 1050 OF 2012 ``` ``` 7 ``` amenities’. I am inclined to increase the compensation under the head ‘pain and sufferings’ by **Rs.15,000/-** more and ‘loss of amenities’ by **Rs.15,000/-** more. That apart, towards ‘extra nourishment’, I am inclined to grant **Rs.5,000/-** more. In the result, this appeal stands allowed in part. It is held that the appellant is entitled to get Rs.4,13,100/- as compensation. Out of which, Rs.3,48,100/- was granted by - the Tribunal and the balance amount of **Rs.65,000/** (Rupees sixty five thousand only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, excluding interest for a period of 80 days specifically excluded by this Court while allowing the delay petition-C.M.Application No.1286 of 2012 as per order dated 18.06.2012, payable by the Insurance Company, from the date of petition till the date of deposit or realisation. ``` MACA NO. 1050 OF 2012 ``` ``` 8 ``` The Insurance Company is directed to deposit the same in the name of the appellant within two months from today. On deposit, the appellant can release the same. **Sd/-** **A. BADHARUDEEN JUDGE** nkr