K. Imbichikoya v Oriental Insurance Co. Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. Jayachandran
Judgment Date: 2022-10-28
Court Decision / Holding: MACA allowed; the compensation amount payable to the claimant/appellant is re-worked and enhanced as per the schedule: Medical Treatment Rs 5,000; Attendant and nourishment Rs 2,800; Pain and suffering Rs 20,000; Loss of amenity Rs 10,000; Loss of notional income/earning capacity Rs 13,500 (3 months at Rs 4,500); Transportation Rs 500; Future treatment Rs 1,500. Total Rs 53,300; enhanced amount Rs 23,300. Interest on the Tribunal-awarded amount at the rate directed in the impugned order; interest on the enhanced amount at 5% from the date of petition; delay excluded from interest. Directions for deposit via NEFT/RTGS within one month; if bank details are not provided, no interest will run on the enhanced amount after the specified period.
Final Disposition: The appeal is allowed; the original award is enhanced; directions issued for payment with interest and procedural steps for NEFT/RTGS payment.

Parties to the Case

Appellants / Petitioners

K. Imbichikoya

Respondents

Oriental Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• K.V. Rashmi

Counsels for Respondents

• P.M.M. NajeeB Khan

Case Synopsis & Summary

This MACA arises from an award of the Motor Accidents Claims Tribunal, Kozhikode, in O.P(M.V) No. 1679/2005, where a pedestrian sustained a tibia and fibula fracture after being struck by a motorbike on 17 September 2004. The claimant, aged 69 at the time, required seven days of inpatient care and ongoing medical treatment. The appellant challenges the Tribunal’s assessment of the claimant’s income, arguing that the monthly earnings were under-stated: the claimant contends Rs 5,000 per month, while the Tribunal recorded Rs 3,000. Citing Alliance Insurance Co. Ltd. (2011) 13 SCC 236, the appellant urges that the income be reckoned at Rs 4,500 per month. The appellant also challenges the Tribunal’s low award for loss of amenities and seeks a higher figure, arguing that the injuries and fractures warrant greater compensation. The court agrees that loss of amenities should be Rs 10,000 and that loss of earning capacity should be reckoned for a period of three months due to the inpatient treatment. It also increases the pain and suffering head to Rs 20,000 (from Rs 15,000) and allows Rs 200 per day for attendant and extra nourishment. Finally, the court re-worked the total compensation to Rs 53,300 with enhanced amount Rs 23,300, and directed the insurer to pay with interest, including a set-off where applicable, via NEFT/RTGS, within a month after notice of the judgment.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal undervalued the claimant's income and failed to account for his status as a wood merchant; citing Alliance Insurance Co. Ltd. (2011) 13 SCC 236 to justify a higher monthly income of Rs 4,500. He also argues that loss of amenities was understated; seeks Rs 10,000 for loss of amenities, and that loss of earning capacity should be recognised for three months due to the inpatient treatment. The court should enhance pain and suffering to Rs 20,000 and allow Rs 200 per day for attendant and extra nourishment; seeks appropriate interest and orderly payment.

Contentions of Respondents

The respondent insurer's counsel represented the insurer at hearing. While the record notes the insurer’s involvement, the judgment excerpt provided contains no detailed counter-arguments but indicates that the appellant’s submissions were examined. The insurer is directed to comply with the enhanced award and interest terms if the appeal is allowed.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Alliance Insurance Company Ltd.	[(2011) 13 SCC 236]	Positive	Cited to justify the amount of monthly income (Rs 4,500) as reckonable, aiding the appellant's argument for higher income.

Extracted Judgment Text

Exact text extracted from official judgment records.

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 28[TH] DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944 ``` ## _`MACA NO. 1463 OF 2015`_ ``` AGAINST THE ORDER/JUDGMENT DATED 27.8.2008 IN OPMV 1679/2005 ``` ``` OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE ``` ## _`APPELLANT/S:`_ ``` K.IMBICHIKOYA S/O.AHAMMEDKOYA, AGED 77 YEARS, KEEZHCHAL PARAMBA, P.O.KOLATHARA, KOZHIKODE-673 655. BY ADV SMT.K.V.RASHMI ``` ## _`RESPONDENT/R2:`_ ``` ORIENTAL INSURANCE CO.LTD. DIVISIONAL OFFICE, SEEMA BUILDING, G.H.ROAD, KZOHIKODE-673 001, REPRESENTED BY ITS MANAGER BY ADV SRI.PMM.NAJEEB KHAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA1463/2015 2 ## **`C.JAYACHANDRAN, J.`** ## **`-----------------------------------MACA No.1463 of 2015 ------------------------------------Dated this the 28[th] day of October, 2022`** ## **`J U D G M E N T`** ``` 1. In this claimant's appeal, the appellant impugns the award of the Motor Accidents Claims Tribunal, Kozhikkode in O.P(M.V)No.1679/2005. The appellant/claimant was a pedestrian, who was hit by a motor bike on 17.9.2004, sustaining fracture of tibia and fibula of right. He was 69 years old as on the date of accident and had to undergo 7 days treatment as an inpatient. ``` ``` 2.Heard Smt.Rashmi K.V, learned counsel for the appellant and Sri.P.M.M.Najeeb Khan, learned ``` MACA1463/2015 3 ``` counsel for the respondent/insurance company. Perused the records. ``` ``` 3.Learned counsel for the appellant submitted that the monthly income reckoned by the Tribunal is on the lower side. As against Rs.5,000/- claimed, the Tribunal reckoned only Rs.3,000/-. Even assuming the claimant's claim that he was a wood merchant, his monthly income claimed is not established. The income as per the index available inRamachandrappav.The Manager, Royal Sundaram ``` ## **`Alliance Insurance Company Ltd. [(2011) 13 SCC 236]`** ``` is Rs.4,500/- per month, which at least is liable to be reckoned, is the submission. This submission is only to be accepted and the monthly income is reckoned at Rs.4,500/-. ``` MACA1463/2015 4 ``` 4.The second contention is with respect to loss ofamenities.Inacasewherethe ``` ``` appellant/claimant had suffered multiple fractures ``` ``` on tibia and fibula of right, the Tribunal reckoned ``` ``` only Rs.3,000/- towards loss of amenities. As contended by the learned counsel for the appellant, ``` ``` the amount reckoned for loss of amenities is ``` ``` insufficient. This court is of the opinion that loss of amenities has to be reckoned at Rs.10,000/-, particularly taking note of the two fractures sustained by the claimant. ``` ``` 5.Loss of earning capacity due to incapacitation has not been reckoned by the Tribunal, is the next contention of the learned counsel for the ``` MACA1463/2015 5 ``` appellant. The appellant was an inpatient for seven days. Open Reduction and Internal Fixation of right tibia has been done, indisputably. This Court is therefore of the opinion that loss of earning capacity has to be reckoned for a period of three ``` ``` months. For the same set of reasons, this Court will enhance the compensation on account of ‘pain and suffering’ to Rs.20,000/- from Rs.15,000/-. The claimant is entitled to Rs.200/- per day towards expenses for personal attendant and extra nourishment. ``` ``` 6.In the result, this M.A.C.A is allowed and the ``` ``` compensationamountpayabletothe ``` ``` claimant/appellant is re-worked as indicated in the schedule given below: ``` MACA1463/2015 6 |`Sl.` `No.`|`Head of claim`|`Amount` `awarded` `by` `the` `Tribunal(Rs)`|`Total` `amount` `after` `enhancement in` `appeal (Rs.)`| |---|---|---|---| |`1`|`Medical Treatment`|`5000`|`5000`| |`2`|`Incidental charge`|`0`|`-`| ||`a)Attendant expenses`||`1400` `(200x7)`| ||`b)Extra nourishment`||`1400` `(200x7)`| |`3`|`Pain and sufering`|`15000`|`20000`| |`4`|`Loss of amenity`|`3000`|`10000`| |`5`|`Loss of notional` `income/earning` `capacity`|`3000`|`13500` `(4500x3)`| |`6`|`Transportation`|`500`|`500`| |`7`|`Future treatment`|`1500`|`1500`| ||`Total`|`28000`|`53300`| ||`Amount enhanced =`**`Rs.23,300/- (`**`53300 - 30000)`||| ``` The period of delay in terms of order dated 10.2.2016 will be excluded for the purpose of reckoning interest. ``` MACA1463/2015 7 ``` 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 amounts at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. Since there was a delay of 2355 days in filing the appeal, the interest for the enhanced quantum shall not run for ``` ``` the said period as directed in order dated 10.02.2016 in C.M.Appl.No.1620/2015. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month 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 ``` MACA1463/2015 8 ``` Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest on enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. ``` ``` Sd/- C.JAYACHANDRAN JUDGE ``` ``` jg ```