Jimesh Paul v. P. Anil and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` TUESDAY, THE 18[TH] DAY OF OCTOBER 2022 / 26TH ASWINA, 1944 ``` ## `MACA NO. 1652 OF 2013` ``` AGAINST THE ORDER/JUDGMENT IN OP(MV) 923/2004 OF MOTOR ACCIDENT ``` ``` CLAIMS TRIBUNAL, THALASSERY ``` ## `- APPELLANT/PETITIONER :` ``` JIMESH PAUL AGED 24 YEARS S/O.N.C.PAUL, NAMTTATHIL HOUSE, MANAKKADAVU.P.O., VELLAD AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADVS. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH ``` ## `- RESPONDENTS / REPONDENTS :` ``` 1P.P.ANIL S/O.T.KRISHNAN, PUTHIYA PURAYIL HOUSE, PADAPPENGAD.P.O., KOOVERI AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT.670 581. 2M.J.ALIYAS S/O.JACOB, MOLATH HOUSE, PADAPPENGAD.P.O., KOOVERI AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT.670 581. 3THE BRANCH MANAGER ORIENTAL INSURANCE CO.LTD., MARINE SHOPPING CENTRE, N.H. TALIPARAMBA-670 141. 4JAMES JOSEPH AGED 47 YEARS S/O.JOSEPH, NARIMATTATHIL HOUSE, UDAYAGIRI.P.O., ALAKODE (VIA), ALAKODE AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 670 571. ``` ``` 5MOHAMMED ABDUL RAHMAN S/O.P.V.MOIDEEN, NAZEERA MANZIL, P.O.KURMATHUR, KURUVATHUR AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 670 142. ``` ``` BY ADV SRI.P.JACOB MATHEW ADV SRI.MATHEW JACOB, SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No.1652 of 2013 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 18[th] day of October, 2022** This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Thalassery (for short ‘the Tribunal’) on 29.10.2011 in O.P.(MV) No.923 of 2004. 2. For the sake of convenience the parties to this appeal will hereinafter be referred to as petitioner and respondents in accordance with their status in the Original Petition. 3. The petitioner had sustained injuries in a motor accident occurred on 26.12.2002, when the motor cycle bearing registration No.KL 13H/8657, where he was travelling as a pillion rider, was dashed by a Mini Lorry bearing registration No.KL 13B/1794 at Neriyankundu. In view of the injuries sustained, the petitioner was taken to Co-operative Hospital, Taliparamba and referred therefrom to Koyili Hospital, Kannur. There, he was treated as inpatient for 27 days. Even after getting discharged from the Hospital, the treatment as outpatient is continued. ``` MACA No.1652 of 2013 ``` ``` 3 ``` 4. Petitioner was aged 20 years at the relevant time of the accident. Alleging that the owner, driver and insurer of the Mini Lorry were jointly and severally liable to compensate him for the injuries sustained in the motor accident and claiming a sum of Rs.1,60,000/- as compensation, the above Original Petition was filed before the Tribunal. The driver, owner and insurer of the Mini Lorry, the rider of the motorcycle and its owner were arrayed as respondents 1 to 5 in the Original Petition. The 4[th] respondent did not turn up and contest the Original Petition and therefore declared by the Tribunal exparte. The 5[th] respondent entered appearance on notice being served on him, but failed to file written statement. 5. Though notice was served on the driver and the owner of the Mini Lorry, they did not attend the court to contest the Original Petition and therefore were declared as exparte. The 3[rd] respondent, the insurer of the Mini Lorry filed written statement admitting insurance coverage of the vehicle as on the date of accident. It was contended that the insurer of the motor cycle was not made a party to the proceedings and therefore the Original Petition suffers for non- joinder of necessary ``` MACA No.1652 of 2013 ``` ``` 4 ``` parties. It was further alleged that the accident was caused due to the rash and negligent riding of the motorcycle by the fourth respondent and therefore, the third respondent shall be exonerated from liability to indemnify the insured. 6. On the side of the petitioner, the petitioner himself and a medical practitioner were examined respectively as PW2 and PW1. Exts.A1 to A4 and A5 series and Ext.X1 case sheet were also marked in evidence. No evidence was adduced by the third respondent. 7. On the basis of the evidence adduced as above, the Tribunal found negligence on the part of the driver of the Mini Lorry who was arrayed as the first respondent. The Tribunal has also found that petitioner in view of the injuries established as sustained in the motor accident was entitled to get compensation from the respondents. The quantum of compensation was arrived at Rs.77,100/- and the respondents were directed to deposit the same with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realization alongwith proportionate cost. ``` MACA No.1652 of 2013 ``` ``` 5 ``` 8. The contention of the learned counsel for the petitioner was that monthly income for the purpose of computation of compensation was fixed by the Tribunal notionally as Rs.1,500/- and compensation was assessed for loss of earnings by taking five months period. According to the learned counsel the petitioner has sustained serious injuries in the motor accident and was treated as inpatient as well as outpatient. 9. Ext.A2 is the wound certificate which shows that the petitioner was admitted at Koyili Hospital, Kannur immediately after the accident with the following injuries : - “1. Multiple lacerated wound over face and left pinna. 2. Fracture on right shoulder 3. Fracture of medial anterior and lateral walls of right maxillary sinus 4. Fracture of outer place of frontal sinus, frontonasal, right zygomatic arch, right nasal bone and nasal septum”. 10. Ext.A3 incorporates the outpatient records issued from Pariyaram Medical College Hospital. Ext.A4 is the report of C.T Scan issued from Koyili Hospital, Kannur which reports a small focal hyperdense lesion in the left frontal lobe and minimal air, within the ``` MACA No.1652 of 2013 ``` ``` 6 ``` cranial cavity. In scanning, fracture of lateral and medial walls and floor of right orbit, outer place of right frontal sinus, Zygomatic arch, anterior, medial and lateral walls of right maxillary sinus, nasal septum, frontonasal process on right side and right nasal bone were detected. Small focal hemorrhagic contusion was also found in the left frontal lobe. Medical bills were marked in evidence as Ext.A5 series and it reveal an expenditure of Rs.43,023/- towards treatment. 11. The learned counsel has pointed out that though medical bills worth Rs.43,023/- were marked in evidence from the side of the petitioner as Ext.A5 series, the Tribunal failed to take the entire bills into account for fixing the compensation payable under the head medical expenses. According to him, the Tribunal has awarded only Rs.34,100/-, which is much below the actual sum spent by him as per Ext.A5 series. 12. The learned counsel for the third respondent has pointed out that the Tribunal has discarded some medical bills and valid reasons for doing so are also stated in the impugned award. According to him, the reasons are stated in paragraph 18 of the impugned award. ``` MACA No.1652 of 2013 ``` ``` 7 ``` 13. It is noticed on a reading of paragraph 18 that a bill for Rs.2,800/- was discarded for want of any authentication therein. This Court also noticed on a perusal of the said bill that it was written in ink but it does not bear a seal of the hospital, which allegedly has issued it. Therefore, this Court finds that the Tribunal is perfectly justified in discarding it while assessing compensation for treatment expenses. Another bill for Rs.16,185/- was also found discarded by the Tribunal for want of particulars regarding the hospital that received it. On a perusal of Ext.X1 case sheet, it is found that the petitioner was treated by several doctors and also that he had undergone scanning several times. 14. In the above circumstances, this Court finds that the Tribunal is unjustified in not considering the bill for Rs.16,185/-. This Court is inclined to grant the sum covered by that bill also towards medical expenses. When calculated in the above manner, the compensation payable under the head treatment expenses would come to Rs.40,223/-. Rs.34,100/-, having been awarded by the Tribunal, Rs.6,123/- is payable additionally under that head. ``` MACA No.1652 of 2013 ``` ``` 8 ``` 15. The petitioner claimed to be a painter by profession but no evidence was adduced to establish the factum. The claim of monthly income was Rs.3,000/- but the Tribunal in the absence of proof, fixed it notionally as Rs.1,500/-. 16. The learned counsel for the petitioner canvassed for a reconsideration of the monthly income on the basis of _**Ramachandrappa v. Royal Sundaram Alliance Insurance Co.Ltd**_ [(2011) 13 SCC 236]. Since Rs.4500/- was fixed in **Ramachandrappa** supra as the monthly income of a Coolie worker in the year 2004, this Court finds it reasonable to fix Rs.3,500/- as the monthly income in the case on hand, where the alleged motor accident was occurred in the year 2002. In view of the serious injuries sustained by the petitioner and the treatment undergone both as inpatient and outpatient and also the oral evidence let in by PW2 that he was unable to attend the job for a considerably long time, this Court is inclined to take 8 months’ as the period during which he suffered loss of income. When the compensation is reassessed based on the monthly income fixed as Rs.3,500/- for a period of 8 months, the petitioner will get Rs.28,000/-. ``` MACA No.1652 of 2013 ``` ``` 9 ``` Rs.7,500/- was already awarded by the Tribunal and therefore, the petitioner will get Rs.20,500/- as additional compensation under that head. 17. It is noticed that the Tribunal had awarded the sum claimed itself as compensation under the head transportation expenses and therefore, needs no interference. The petitioner failed to claim any sum as compensation towards bystander expenses, but the Tribunal has awarded Rs.2,000/-. Rs.1,500/- was claimed under the head extra nourishment and the Tribunal has awarded Rs.3,000/-. The amount stands awarded under those heads being reasonable, this Court is declined to interfere with those. 18. Under the head damages to clothing, the Tribunal has awarded Rs.500/- and this Court finds it reasonable to award Rs.500/more. Towards pain and suffering Rs.55,000/- was claimed by the petitioner, but the Tribunal awarded only Rs.22,000/-. The injuries sustained were already discussed with. Petitioner had also undergone three operations as part of the treatment. When those aspects are considered, Rs.22,000/- awarded by the Tribunal is found unjust and ``` MACA No.1652 of 2013 ``` ``` 10 ``` unreasonable. Therefore, Rs.35,000/- is awarded under the head pain and suffering. Since Rs.22,000/- stands awarded under that head, the petitioner will get Rs.13,000/- as additional compensation. 19. Under the head loss of amenities and enjoyments in life, the Tribunal has awarded only Rs.5,000/- and this Court is inclined to grant Rs.15,000/- more. The petitioner as PW2 deposed that for 1 ½ years he could not attend the job in view of the injuries sustained in the accident and the disabilities followed thereby. According to him, he had headache occasionally in view of the head injuries sustained. He had also complained loss of vision. A medical practitioner was examined as PW1 and he deposed about the difficulties and probabilities that may occur due to the injuries sustained in the motor accident. The oral evidence of PW2 and PW1 were not controverted. In the above circumstances, though a certificate assessing the disability was produced by the petitioner, this Court is declined to accept the assessment as such. 3% is taken as the permanent disability of the petitioner in view of the injuries sustained by him in the accident. In the reassessment with the monthly income fixed as Rs.3,500/-, ``` MACA No.1652 of 2013 ``` ``` 11 ``` **-** multiplier as 18 and the permanent disability as 3%, Rs.22,680/ (Rs.3500 x 12 x 18 x 3/100) is arrived at. 20. In the above re-assessment, a total sum of Rs.77,803/(Rupees Seventy seven thousand eight hundred and three only) is found payable to the petitioner additionally. The third respondent being the insurer shall deposit the above sum with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realization, within a period of two months from the date on which, a certified copy of this judgment is received by them. 21. The third respondent was exempted from paying interest for 551 days’ delay occurred in filing the appeal, vide order passed by this Court on 21.12.2021 in CMA No.1/2013. MACA stands allowed accordingly. Sd/- **MARY JOSEPH** **SMA JUDGE**