Leelamma W/o. Thomas v. Abhilash E.M. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 3[RD] DAY OF JUNE 2022 / 13TH JYAISHTA, 1944** ## **MACA NO. 2484 OF 2010** **O.P.(M.V.) 801/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA** ## **APPELLANT/PETITIONER:** **LEELAMMA W/O. THOMAS @ MOHANAN PUTHENPURACKAL HOUSE, CHAMPAKKARA KARA, KARUKACHAL VILLAGE, AT PRESENT RESIDING AT THAYYIL HOUSE, THEKKUMMURI KARA, PULIYANNOOR VILLAGE.** **BY ADVS.SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENTS/RESPONDENTS:** |**1**|**ABHILASH E.M.**| |---|---| ||**S/O. MADHAVAN P.A.**| ||**ELAVUMKAL HOUSE,**| ||**CHAMPAKKARA POST,**| ||**NETHALLOOR BHAGOM,**| ||**KARUKACHAL.**| |**2**|**SUNILKUMAR,**| ||**VIJAY ASSOCIATES**| ||**NISSAM BUILDING,**| ||**ICO JUNCTION,**| ||**CHANGANACHERRY.**| |**3**|**THE MANAGER,**| ||**NATIONAL INSURANCE COMPANY**| ||**LIMITED,**| ||**PARAKKADAVIL SHOPPING COMPLEX,**| ||**OPPOSITE NO.1,**| ||**PRIVATE BUS STAND,**| ||**PALACE ROAD,**| ||**CHANGANASSERY.**| **R3 BY ADV. SRI.GEORGE CHERIAN THIRUVALLA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2484 OF 2010 2 ## **JUDGMENT** Award in O.P.(M.V.) No. 801/2008 dated 29.04.2010 is under challenge in this appeal at the instance of the petitioner, where the respondents before the Tribunal are the respondents. 2. Heard the learned counsel for the appellant, and the learned counsel appearing for the Insurance Company. 3. Summary of the case :- The appellant who sustained injuries as a result of a road traffic accident occurred on 07.06.2008 at 12.00 noon while travelling as a pillion rider in a motor cycle bearing Registration No.KL-4-E-1831 claimed compensation to a tune of Rs.2,50,000/- before the Tribunal on the allegation that the accident was the contribution of negligence on the part of the first respondent who had driven autorickshaw bearing M.A.C.A.No.2484 OF 2010 3 Registration No. KL-5-Q-2135 at the time of accident in a rash and negligent manner. 4. The third respondent, Insurance Company filed written statement disputing the negligence and the quantum of compensation. Policy to the vehicle alleged to be involved in the accident was admitted. 5. The first respondent also filed written statement taking more or less the same contentions taken by the Insurer. The second respondent was declared set ex-parte before the Tribunal. 6. The Tribunal jointly tried O.P.(M.V.) Nos. 801/2008 and 769/2008, after recording the evidence given by PW1 and Exts.A1 to A23 on the part of the appellant and Exts. B1 to B3 on the part of the respondents. Ext.X1 disability certificate also got marked as court exhibit. 7. Finally, the Tribunal granted Rs.1,22,100/- as M.A.C.A.No.2484 OF 2010 4 compensation fastening liability upon the Insurance Company. 8. The learned counsel for the appellant would submit that the monthly income fixed by the Tribunal at the rate of Rs. 3,000/- is less in this matter. The appellant being a rubber tapper claimed Rs. 6,000/- as her monthly income. 9. Since, the monthly income claimed at Rs. 6,000/- is less than the amount entitled as per the ratio in [(2011) 13 SCC 236], **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd** ., the learned counsel for the third respondent also not opposed fixing of monthly income at Rs. 6,000/-. 10. In this matter, disability, age and multiplier applied by the Tribunal are not in dispute. Therefore, the award requires re-assessment, based on the monthly M.A.C.A.No.2484 OF 2010 5 income fixed at Rs. 6,000/-, and the injuries sustained. 11. In paragraph No. 9 of the award, the tribunal discussed the injuries sustained by the appellant and the same are type III open fracture both bones (R) leg. Paragraph No. 9 of the award is extracted as under:- “Ext.A6 is the O.P. ticket dated 12.07.2008 which indicates that the petitioner sustained both bone fracture on (R) leg - and lateral condylar tibia. The age of the petitioner is written as 46 years. Ext.A7 is the treatment certificate issued from Malankara Orthodox Syrian Church, Medical College Hospital, Kolenchery. It indicates that the petitioner was admitted on 19.08.2008 with deep vein thrombosis of (R) leg. It indicates that deep vein thrombosis can be attributed to the fact that she was immobile following the fracture and surgery. Ext.A8 is the medical certificate which is dated 10.03.2006. This document is not connected with the accident and hence it is rejected. Ext.A9 is the discharge card which indicates that the petitioner was admitted on 07.06.2008 and discharged on 13.06.2008. She has been treated by wound debridement and external skeletal fixation. Ext.A10 is the discharge card which indicates that the petitioner was admitted on 24.06.2008 and discharged M.A.C.A.No.2484 OF 2010 6 on 19.08.2008. This is issued from District Hospital, Idukki. It also indicates that the patient developed pelvic vein thrombosis. Ext.A11 is the discharge card issued from District Hospital, Idukki. It indicates that petitioner was admitted on 01.09.2008 and discharged on 01.11.2008. Ext.A12 is the scan report of Colour Doppler – Right Lower Limb Venous System. It indicates that extensive acute/sub acute deep venous thrombosis (DVT) involving right external iliac, common femoral, superficial femoral, deep femoral and popliteal veins, minimal/partial recanlization in the popliteal vein and partial extension of common femoral vein thrombus through the saphenofemoral valve into the proximal part of long saphenous vein. Ext. A13 is the scan report of Colour Doppler – Right Pelvis & Thigh Venous System. It indicates that known case of deep venous thrombosis, the present scan shows: changes of chronic DVT with partial recanalization (40 to 50% patency) in the common femoral vein, Chronic DVT sequelae with contracted lumen and partial recanalization in the proximal segment of superficial femoral vein, patent common iliac, external iliac and popliteal veins, Saphenofemoral valve is free of thrombus in the present scan. Ext.A14 is the photographs of the petitioner. Ext.A17 is the original discharge card which indicates that the petitioner was admitted on 07.06.2008 and discharged M.A.C.A.No.2484 OF 2010 7 on 13.06.2008. Ext.A18 indicates that petitioner has deep vein thrombosis and she was advised to continue treatment with anticoagulants and has periodic blood tests as there was a risk of recurrence of deep vein thrombosis.” 12. The Tribunal granted 'loss of earnings' for three months at the rate of Rs. 3,000/-. In view of the injuries as extracted as above, the learned counsel for the appellant canvassed increase under the head 'loss of earnings' for a period of five months. 13. I am inclined to grant 'loss of earnings' for a period of four months at the rate of Rs.5,000/-. Accordingly, the 'loss of earnings' in this case would come to Rs.5,000 x 4 = Rs.20,000/-, out of which Rs.9,000/- was paid by the Tribunal, the balance **Rs.11,000/-** more is granted under this head. 14. Coming to disability income, the same shall be re-calculated as Rs.5,000x12x7/100x13 = Rs.54,600/-, out of which Rs.27,300/- already granted M.A.C.A.No.2484 OF 2010 8 by the Tribunal and Rs.27,300/- is the balance. Therefore, under the said head **Rs.27,300/-** more is granted. 15. It is submitted by the learned counsel for the appellant that 'by-standers expenses' granted at the rate of Rs. 50/- per day for a period of 126 days is on lower side and the same requires reconsideration. The same is also re-calculated as Rs. 150/- x 126 = Rs. 18,900/-, out of which Rs.6,300/- already granted by the Tribunal and thus **Rs.12,600/-** more is granted under this head. The Tribunal granted Rs.20,000/- under the head 'pain and suffering'. Considering the seriousness of the injuries and prolonged treatment, I am inclined to grant **Rs.10,000/-** more under this head. Towards 'loss of amenities', the Tribunal granted Rs. 10,000/- and I am inclined to increase the same by **Rs. 10,000/-** more. 16. In the result, this appeal is allowed. It is M.A.C.A.No.2484 OF 2010 9 ordered that the appellant is entitled to get enhanced compensation to the tune of **Rs.70,900/-** (Rupees Seventy Thousand and Nine Hundred only) with the same rate of interest awarded by the Tribunal, excluding the amount already granted by the Tribunal, from the date of petition till the date of deposit or realisaiton excluding the period of 106 days wherein, grant of interest was specifically excluded as per order in C.M. Application No. 1/2010 (C.M. Appln. No. 3220/2010) dated 17.02.2022. The Insurance Company is directed to deposit the balance amount in the name of the appellant within two months from today and on deposit, the appellant can release the same. Sd/- **A. BADHARUDEEN JUDGE** **DCS/03.06.2022**