Joseph s/o Devassy v. Faisal, P.M. Majeed and United India Insurance Co. Ltd. (MACA 872/2009)

M.A.C.A.872/2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 1[ST] DAY OF JULY 2022 / 10TH ASHADHA, 1944** **MACA NO. 872 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 2406/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT/PETITIONER IN O.P.(M.V):** JOSEPH,S/O.DEVASSY, THEKKEKKARA HOUSE,, VELIYATHUNADU KARA, ALUVA. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENTS/RESPONDENTS IN O.P(M.V):** 1 FAISAL, S/O.ABU PARIYARATHU HOUSE,, PIPELINE ROAD,, THAIKKATTUKARA P.O., ALUVA. 2 P.M.MAJEED, S/O. P.K.MOIDEEN PANICKARUVEETTIL HOUSE,, THAIKKATTUKARA P.O., ALUVA. 3 UNITED INDIA INSURANCE CO.LTD. IIND FLOOR, P.M.S.BUILDING, ELOOR ROAD, KALAMASSERY, ERNAKULAM DISTRICT. BY ADV SRI.P.K.MANOJKUMAR, SC, UNITED INDIA INSURANCE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.872/2009 2 ## **C.JAYACHANDRAN, J.** **----------------------------------------------** **M.A.C.A.No.872 of 2009 --------------------------------------------Dated this the 1[st] day of July, 2022** ## **J U D G M E N T** Jayachandran, J. **1.** The claimant before the Tribunal, who preferred this appeal, was a 39 year old driver and he met with an accident on 26.10.2004 during the course of driving an autorikshaw, suffering serious injuries. The award dated 18 **.** 09.2008 in O.P.(M.V.)No.2406 of 2004 is assailed on the following grounds. **2.** Firstly, learned counsel for the appellant submitted that the claimant suffered a whole body permanent disability of 22%, as certified by the Medical Board, whereas, the Tribunal has reckoned only 10%. Learned counsel would hasten to add that a doctor, who was a member of the Medical Board, was examined to prove Annexure - A15 disability certificate. This M.A.C.A.872/2009 3 Court is of the opinion that disability of 22% as certified by the Board is liable to be reckoned. Secondly, learned counsel submitted that the claimant was an inpatient for a total period of 50 days in three different spells at various hospitals and he had to continue treatment for a period of 2 years. The claimant had suffered multiple fractures as could be seen from Annexure-A11 discharge summary. However, his loss of earnings was reckoned only for a period of six months. According to the learned counsel, the period of one year, atleast, ought to have been reckoned, having regard to the seriousness of the injuries and the period of hospitalization. Learned counsel for the 3[rd] respondent/insurance company submitted that a period of one year will be on the higher side. Having regard to the attendant facts and circumstances, this Court is of the view that a period of 11 months can be reckoned towards loss of earning. 4 ## M.A.C.A.872/2009 **3.** The third aspect is with respect to monthly income, wherein, the claimant claim a sum of Rs.3,000/- per month, whereas the Tribunal reckoned only Rs.2,000/-. As a matter of fact, the notional income as indicated in **Ramachandrappa** v. **Manager, Royal Sundaram Alliance Insurance Company Ltd.** [2011 KHC 4675] is higher than the amount claimed. However, the petitioner cannot aspire for more income than what he had claimed. Therefore, this Court is inclined to reckon the monthly income at Rs.3,000/-. Another count is with respect to the bystander expenses, where the Tribunal has reckoned a total amount of Rs.4,000/-. It is not in dispute that the claimant was hospitalized for a period of 50 days, wherefore, he is entitled to bystander expenses @Rs.200/- per day. The amount under the head has to be recalculated accordingly. Towards extra nourishment, all what is seen is Rs.2,000/-, which is enhanced to Rs.5,000/- having regard to the M.A.C.A.872/2009 5 hospitalization and the seriousness of the injuries. Against pain and suffering, Rs.25,000/- was the amount granted by the Tribunal. Learned counsel for the appellant pointed out that, petitioners had to undergo two major surgeries and four minor surgeries. This Court, therefore, fixes the amount payable on account of pain and suffering at Rs.40,000/-. The last count is with respect to loss of amenities. Learned counsel pointed out that the claimant suffered 22% permanent whole body disability at the age of 39, despite which, the Tribunal only granted Rs.15,000/-. The same is liable to be enhanced to Rs.25,000/-, even by a modest estimation made by this Court. **4.** Disability will be accordingly modified by taking the notional income at Rs.3,000/- and reckoning the disability at 22% with multiplier 15 [correcting the wrong multiplier of 16 as applied by the Tribunal). 6 M.A.C.A.872/2009 **5.** The impugned award is also assailed on the question of contributory negligence found by the learned Tribunal on the claimant. The same is seen done only on the basis of scene mahazar, which course can hardly be sustained. A Bench decision of this Court in **New Indian Assurance Company Limited** v. **Pazhaniammal** [2011(3) KLT 648], as also, the judgment of the Supreme Court in **Jiju Kuruvila and Ors.** v. **Kunjujamma Mohan and Others** [2013(9) SCC 166] would amplify that the document to be reckoned for the purpose of assigning contributory negligence, pending trial, is the final report. In the instant case, going by the final report produced, the negligence is attributed to the driver of the offending vehicle and not on the claimant. Applying the dictum in the judgments above referred, this Court set aside the finding of the Tribunal as regards the contributory negligence on the part of the claimant. M.A.C.A.872/2009 7 **6.** Resultantly this M.A.C.A is allowed and the amount to be paid to the claimant is as indicated in the tabular statement given below. |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**awarded by**<br>**the Tribunal**|**Total amount**<br>**after enhancement**<br>**in appeal**| |---|---|---|---| |1|Loss of earnings|12,000|33,000<br>(3000x11)| |2|Treatment expenses|1,97,600|1,97,600| |3|Transportation expenses|3,000|3,000| |4|Pain and Suffering|25,000|40,000| |5|Loss of Amenities|15,000|25,000| |6|Damage to Clothing|250|250| |7|Attendant's charges|4,000|10,000| |8|Extra Nourishment|2,000|5,000| |9|Disability|38,400|1,18,800<br>(3000x12x15x<br>22/100)| M.A.C.A.872/2009 8 Total 2,97,250 4,32,650/1,48,625/(297250x50%) Amount enhanced = Rs.4,32,650 – Rs.1,48,625/ = **Rs.2,84,025/** **7.** The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amount, at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within two months from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not given within the time stipulated, it is made clear that, no interest shall run on the enhanced amount after the period 9 ## M.A.C.A.872/2009 stipulated by this Court. However, if the Insurance Company fails to deposit the amount, as directed, interest on the enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. The appeal is allowed to the above extent. Sd/- **C.JAYACHANDRAN** **JUDGE** Sbna/