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2013 DIGILAW 736 (KER)

Bijumon v. Subhash

2013-08-21

THOMAS P.JOSEPH

body2013
Judgment : 1. All the respondents are served. Third respondent appears through counsel. 2. This appeal arises from the award dated 07.10.2010 in O.P (M.V).No.1511 of 2005 of the Additional Motor Accident Claims Tribunal, Alappuzha (for short, "the Tribunal"). 3. Appellant suffered injuries in a motor accident on 20.10.2005. He was riding the motor cycle. Another motor cycle which the first respondent was riding hit him from the rear side. Appellant sustained injuries. 4. The Tribunal found that accident occurred due to the negligence of the first respondent, assessed compensation payable to the appellant at Rs.57,700/-, found all the respondents liable and directed the third respondent to deposit compensation with interest. Appellant is aggrieved by the quantum of compensation. 5. Appellant was aged 27 years at the relevant time, a Heavy Duty driver and claimed to be earning Rs.6,000/-per month. Ext.A6 is an affidavit sworn by the employer. 6. It would appear that the Tribunal has not assessed monthly income of the appellant though it proceeded to award compensation for disability. Having regard to the age and occupation of the appellant, his monthly income is fixed at Rs.3,000/-. 7. Paragraph 8 states injuries suffered by the appellant. Apart from other injuries, it includes restricted and painful movement of left ankle joint, fracture of lateral malliolus, IVDP L4 -L5 and other injuries. He suffered other injuries also and underwent inpatient treatment for 11 days followed by outpatient treatment. Ext.A5 series are bills for treatment expenses to the tune of Rs.5,696/- but, not taken into account by the Tribunal nor, any amount awarded for treatment expenses. It is also seen that compensation is not awarded for loss of earnings though it was claimed for five months. 8. Learned counsel argued that apart from above, no compensation is awarded for loss of amenities and that percentage of disability was reduced by the Tribunal without any reason. 9. Learned counsel for the third respondent has contended that there is no reason to interfere with the compensation awarded. 10. Having regard to the injuries suffered and the period of inpatient treatment it is likely that the appellant was not able to work for three months. Loss of earnings payable comes to Rs.9,000/-. 11. Transportation charges awarded by the Tribunal is only Rs.500/-which appears to be on the lower side. 10. Having regard to the injuries suffered and the period of inpatient treatment it is likely that the appellant was not able to work for three months. Loss of earnings payable comes to Rs.9,000/-. 11. Transportation charges awarded by the Tribunal is only Rs.500/-which appears to be on the lower side. Having regard to the nature of injuries and the number of visits the appellant had to make to the hospital, a further sum of Rs.1,000/- is awarded. 12. Ext.A5 series are bills for treatment expenses to the tune of Rs.5,696/-. The Tribunal neither rejected Ext.A5 series nor award any amount for treatment expenses. Nothing is brought on record to discard Ext.A5 series. 13. Learned counsel contended that the compensation is not awarded for bystanders' expenses. But, it is seen that for extra nourishment for 11 days, the Tribunal has awarded Rs.2,200 (@Rs.200/-per day). It is unlikely that so much amount would have been awarded for extra nourishment in the normal course. What is awarded under the head of extra nourishment is actually expenses for the bystander. That appears to be a bit excessive since the expenses taken for a day at Rs.200/-. Having regard to that also, Rs.4,000/- is awarded for treatment expenses. 14. Compensation awarded for pain and suffering is only Rs.10,000/-which having referred to the fact situation is to be enhanced. Additional compensation payable on that count comes to Rs.2,000/-. 15. Compensation awarded for disability is Rs.15,000/-. It is not clear how the Tribunal has assessed compensation for disability. Ext.X1, certificate issued by the medical board certified permanent disability of the appellant as 12%. Learned counsel has given me a copy of Ext.X1 where it is stated that there was fracture of left ankle with chronic low back pain and partial anklyosis of the ankle movement. Though percentage of disability certified in Ext.X1 cannot as such be accepted, having regard to the nature, site and extent of the fractures suffered by the appellant I am inclined to take it as 10%. Multiplier to be adopted is 18. Compensation payable for disability is Rs.64,800/- (Rs.3,000x12x18x10/100). Less Rs.45,000/-already awarded additional compensation payable for disability comes to Rs.19,800/-. 16. The Tribunal has not awarded compensation for loss of enjoyment of amenities of life. That is a head distinct from compensation payable for disability. Multiplier to be adopted is 18. Compensation payable for disability is Rs.64,800/- (Rs.3,000x12x18x10/100). Less Rs.45,000/-already awarded additional compensation payable for disability comes to Rs.19,800/-. 16. The Tribunal has not awarded compensation for loss of enjoyment of amenities of life. That is a head distinct from compensation payable for disability. Having regard to the age of the appellant and nature of injuries he suffered, Rs.7,000/- is allowed as compensation for enjoyment of amenities of life. Additional compensation payable to the appellant comes to Rs.42,800/-. That amount will carry interest @9% per annum from the date of application till realisation. 17. Learned counsel for the third respondent contends that the delay of 375 days in filing the appeal was condoned by order dated 01.03.2013 on C.M.A.No.1204 of 2012 on condition that in case enhanced compensation is allowed, appellant shall not be entitled to get interest on enhanced amount. There is no reason to think that this Court disallowed interest on enhanced compensation from the date of application until date of filing the claim petition. Hence the appellant is not entitled to get interest during the said period of 375 days. Resultantly this appeal is allowed in part as under: (i) In modification of the award dated 07.10.2010 in O.P(M.V).No.1511 of 2005 of the Motor Accident Claims Tribunal, Alappuzha the appellant is allowed to recover a further sum of Rs.42,800/-(Rupees Forty Two Thousand and Eight Hundred Only). (ii) It is directed that the said amount will carry interest @9% per annum from the date of application till 13.04.2012 less interest payable for 375 days. (iii) Respondents 1 to 3 are made liable to pay additional compensation and interest as aforesaid. (iv) Third respondent is directed to deposit the amount in the Tribunal within two months from this day. (v) Direction regarding withdrawal/deposit of the additional compensation shall be issued by the Tribunal. (vi) Parties are directed to suffer their cost in the appeal. All pending interlocutory applications will stand dismissed.