MACA Nos. 1776 & 1778 of 2013

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **WEDNESDAY, THE 24[TH] DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA, 1943 MACA NO. 1776 OF 2013** **AGAINST THE AWARD IN OPMV 101/2010 OF MOTOR ACCIDENT CLAIMS** **TRIBUNAL PALA, KOTTAYAM** ## **APPELLANT/PETITIONER:** EDWARD RAJ S/O.DASAIYA, 26 MURI LEYAM, PATTUMALA ESTATE, KARADIKUZHI P.O., PERRUMADE, IDUKKI DISTRICT. BY ADVS. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.K.B.ARUNKUMAR ## **RESPONDENT/RESPONDENT:** THE MANAGER, ORIENTAL INSURANCE COMPANY LIMITED, CHEERANVELIL BUILDING, NH220, KANJIRAPPALLY, KOTTAYAM DISTRICT, PIN - 686 507. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.9.2021, ALONG WITH MACA.1778/2013, THE COURT ON 24.11.2021 DELIVERED THE FOLLOWING: MACA 1776 & 1778 OF 2013 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI WEDNESDAY, THE 24[TH] DAY OF NOVEMBER 2021/3RD AGRAHAYANA, 1943 MACA NO. 1778 OF 2013** **AGAINST THE AWARD IN OPMV 107/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA, KOTTAYAM** ## **APPELLANT/PETITIONER:** KASHI S/O.SIVALINKAM, 26 MURI LEYAM, PATTUMALA ESTATEKARADIKUZHI (P.O), PEERUMADE, IDUKKI DISTRICT. BY ADVS. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.K.B.ARUNKUMAR ## **RESPONDENT/RESPONDENT No.3:** THE MANAGER ORIENTAL INSURANCE COMPANY LIMITED, CHEERANVELIL BUILDING N.H 220, KANJIRAPPALLY, KOTTAYAM DISTRICT PIN - 686 507. BY ADV SRI.N.S.NAJEEB THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.9.2021, ALONG WITH MACA.1776/2013, THE COURT ON 24.11.2021 DELIVERED THE FOLLOWING: MACA 1776 & 1778 OF 2013 3 ## **T.R. RAVI, J.** **--------------------------------------------** M.A.C.A. Nos.1776 & 1778 of 2013 -------------------------------------------Dated this the 24[th] day of November, 2021 ## **JUDGMENT** These appeals arise as a result of an accident which occurred on 23.1.2009, wherein a lorry hit against a jeep in which the appellants were travelling causing the jeep to overturn and resulting in injury to the appellants. The appellant in M.A.C.A.No.1776 of 2013 had preferred OP(MV) No.101 of 2010 and the appellant in M.A.C.A.No.1778 of 2013 had preferred OP(MV) No.107 of 2010 before the Tribunal. Both the petitions were tried together and were disposed of by a common award. Aggrieved by the amount awarded by the Tribunal, the appellants have filed these appeals claiming enhanced compensation. The facts are stated with reference to the appeals. 2. **M.A.C.A.No.1776 of 2013** :- The appellant was a dailywager aged 38 years and claimed to have been earning around Rs.6,000/- per month at the time of the accident. He suffered multiple fractures in the ribs on the left-hand side, fracture transverse process L3, L4, tendon injury (R) hand, machine nero repair (R) hand, STS direct closer, multiple fracture(L) 2,3,4,5,6, MACA 1776 & 1778 OF 2013 4 Logus tendon injury (R) hand and complained of pain and tenderness all over the body. He had to be hospitalised for 19 days. The Medical Board examined him and as per Exhibit X1 disability certificate, he was assessed to have a disability of 48%. The Tribunal calculated compensation by taking a notional income of Rs.3,500/- per month and treating the disability as 30%. The counsel for the appellant contended that there was no reason for the Tribunal to treat the notional income as Rs.3,500/- and that going by the decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.,** reported in **[AIR 2011 SC 2951]** , the claim of Rs.6,000/- as monthly income ought to have been accepted. It is also submitted that there was no reason for scaling down the disability from 48% to 30%. Another contention that is taken is that having regard to the injury suffered and the fact that the appellant was hospitalised for 19 days, the Tribunal went wrong in not allowing any amount towards loss of amenities and it is further submitted that going by the evidence on record the Tribunal ought to have granted loss of earning for 12 months and not for 8 months. 3. **M.A.C.A.No.1778 of 2013 :-** The appellant, a daily wager aged 30 years at the time of the accident, claimed to have MACA 1776 & 1778 OF 2013 5 been receiving Rs.6,000/- as monthly income. He suffered lacerated wound over the right wrist, over the right knee, on the scalp, on the right forearm and Type II open fracture DER (R) Bennet's fracture Dn (R) and complained of pain and tenderness all over the body. He had to remain in the hospital for 14 days. The Medical Board assessed disability of 22%. The Tribunal adopted a notional income of Rs.3,500/- and scaled down the disability to 12% to arrive at the compensation payable. The counsel for the appellant contended that the Tribunal went wrong in fixing the notional income as Rs.3,500/- and ought to have adopted Rs.6,000/- as monthly income. It is further submitted that there was no reason to scale down the disability from 22% to 12%. It is further submitted that the Tribunal ought to have granted the amount of Rs.50,000/- claimed towards pain and suffering instead of reducing it to Rs.20,000/-. Another contention taken is that the Tribunal disallowed treatment expenses, which is not justified in the light of Exhibit A17 medical bills. The Tribunal has not stated any reason for not granting the medical expenses, so also no amount has been granted towards loss of amenities. 4. Having heard the counsel on either side, the award of the Tribunal needs to be modified. The contentions of the MACA 1776 & 1778 OF 2013 6 appellants with regard to the notional income adopted and loss of amenities are fully justified. Consequential changes are also required under the head loss of earnings. In M.A.C.A.No.1776 of 2013, the appellant is entitled to loss of earnings for 12 months instead of 8 months and in both the cases, the appellants are entitled to an addition of 25% towards future prospects for the purpose of calculation of compensation for permanent disability. 5. With the above conclusions in mind, I shall first consider M.A.C.A.No.1776 of 2013. The Tribunal ought to have treated the monthly income of the appellant as Rs.6,000/-. Adding 25% towards future prospects, Rs.7,500/-, is to be adopted as income for the purpose of calculating the compensation for permanent disability. The disability is to be treated as 48% as seen from X1. Based on the above, the applicant will be entitled to a sum of Rs.6,48,000/-(7500x12x15x48%) towards compensation for permanent disability. After deducting the sum of Rs.1,89,000/awarded by the Tribunal, the applicant will be entitled to an additional sum of **Rs.4,59,000/-** under the above head. So also, considering the nature of the injuries and 19 days hospitalisation and 48% disability, the Tribunal ought to have awarded a sum of **Rs.25,000** towards loss of amenities instead of rejecting the claim MACA 1776 & 1778 OF 2013 7 altogether. I am also of the opinion that the Tribunal ought to have granted loss of earning for 12 months taking into account that the fact that claim was preferred only on 5.2.2010. The appellant will be entitled to a sum of Rs.72,000/- towards loss of earnings and after deducting the sum of Rs.28,000/- awarded by the Tribunal, the appellant will be entitled to a sum of **Rs.44,000/-** in addition. Thus the appellant will be entitled to a total amount of **Rs.5,28,000/-** as additional compensation. 6. **M.A.C.A.No.1778 of 2013:-** The Tribunal ought to have taken the monthly income as Rs.6,000/- instead of Rs.3,500/- and the disability as 22%. Adding 25% towards future prospects, the income for the purpose of calculating compensation for permanent disability should be Rs.7,500/-. The appellant will thus be entitled to a sum of Rs.3,36,600/- (7500x12x17x22%) towards compensation for permanent disability. After deducting the sum of Rs.85,680/- awarded by the Tribunal, the appellant will be entitled to an additional compensation of **Rs.2,50,920/-** under the above head. The loss of earnings payable would be Rs.24,000/-. After deducting the amount of Rs.14,000/- awarded by the Tribunal, the appellant will be entitled to an additional sum of **Rs.10,000/-** under the said head. The amount awarded towards MACA 1776 & 1778 OF 2013 8 pain and suffering does not require to be modified. At the same time, I am of the opinion that an amount of **Rs.15,000/-** is to be awarded towards loss of amenities having regard to the nature of the injuries and the hospitalisation for 14 days, instead of rejecting the claim. The Tribunal has not stated any reason for rejecting Exhibit A17 medical bills, which would show that the appellant had incurred Rs.505/- towards medical expenses. The above said amount is also to be awarded to the appellant. In the whole the appellant will be entitled to an additional sum of **Rs.2,76,425/-** as additional compensation. 7. In the result M.A.C.A.No.1776 of 2013 is allowed and the appellant is awarded additional compensation of a sum of **Rs.5,28,000/- (Rupees Five Lakh Twenty Eight Thousand only)** with interest at the rate of 9% per annum from the date of filing of the claim petition (05.02.2010) till the date of realisation, with proportionate costs. M.A.C.A.No.1778 of 2013 is allowed and the appellant is awarded additional compensation of **Rs.2,76,425/- (Rupees Two Lakhs Seventy Six Thousand Four Hundred and Twenty Five only)** with interest at the rate of 9% per annum from the date of filing of the claim petition (08.02.2010) till the date of realisation, with proportionate costs. MACA 1776 & 1778 OF 2013 9 The respondent insurer shall deposit the additional compensation granted in these appeals along with interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the appellants are liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellants shall be in accordance with law. Sd/- **T.R. RAVI JUDGE** dsn