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2025 DIGILAW 1335 (KER)

Jordy v. Joy Jacob

2025-05-21

SHOBA ANNAMMA EAPEN

body2025
JUDGMENT : This appeal is filed by the appellant/claimant in O.P (MV) No.2067 of 2000 on the file of the Motor Accidents Claims Tribunal, Kottayam. The respondents herein are the respondents before the tribunal. 2. According to the appellant/claimant, on 18.01.2000 at about 12.00 pm, while the claimant was travelling in an auto rickshaw bearing registration No.KL-5H-8059 driven by the 5 th respondent from Ettumanoor to Athirampuzha, a jeep bearing registration No.KL-6-4375 driven by the 2 nd respondent in a rash and negligent manner hit the autorickshaw and thereby caused serious injuries to the petitioner and other co-passengers. The appellant approached the tribunal claiming a total compensation of Rs.13,00,000/-. 3. Though notice was served to all the respondents, the 3 rd respondent alone filed a written statement before the tribunal. The respondent insurer filed a written statement, admitting the policy, but disputing the quantum of compensation claimed. Before the tribunal, oral evidence of PWs 1 and 2 were marked and documentary evidence Exts.A1 to A22 were marked on the side of the appellant/claimant. The tribunal, after analysing the pleadings and materials on record held that the accident took place on account of the negligence of the driver of the jeep and awarded a sum of Rs.3,72,366/- as compensation under different heads with interest @ 6% per annum from the date of petition till realization with proportionate costs from respondent-insurer. Dissatisfied with the quantum of compensation awarded by the tribunal, the claimant has come up in appeal. After filing of this appeal, though, the appellant was referred to the medical board thrice and two reports dated 13.03.2023 and 14.09.2023 were obtained. Out of the two reports, in reports dated 13.03.2023 and 14.09.2023 the disability was assessed at 80% and 48% respectively. In the first report dated 25.06.2004 which was obtained during the pendency of the original petition before the tribunal, the disability was assessed at 35%. 4. Heard the learned counsel for the appellant and the learned Standing Counsel for the respondent insurance company. 5. The learned counsel for the appellant claims enhancement mainly under the following heads :- Bystander expenses :- The learned counsel for the appellant submitted that though an amount of Rs.10,000/- was claimed towards bystander expenses, the tribunal has awarded only an amount of Rs.4,500/-. 5. The learned counsel for the appellant claims enhancement mainly under the following heads :- Bystander expenses :- The learned counsel for the appellant submitted that though an amount of Rs.10,000/- was claimed towards bystander expenses, the tribunal has awarded only an amount of Rs.4,500/-. The learned counsel for the appellant further submitted that he had undergone inpatient treatment for 45 days and thereafter, due to the injuries, he was not able to move without the aid of crutches due to the shortening of the leg sustained due to the accident. Considering the fact that he had undergone 45 days of inpatient treatment, as well as he was able to move only with crutches and he needed the help of a third person, I find that the amount claimed by the appellant is just and reasonable. Accordingly, I am inclined to award an additional amount of Rs.5,500/- over and above Rs.4,500/-. Pain and suffering :- Though an amount of Rs.1,50,000/- is claimed by the appellant, the tribunal has awarded only an amount of Rs.25,000/-. The learned standing counsel appearing for the insurance company submitted that the accident was in the year 2000 and the compensation awarded by the tribunal under the aforementioned head is just and reasonable and does not deserve any enhancement. On a perusal of the tribunal award as well as the documents produced and the appeal filed before this Court, I find that from the date of the accident till this date, the appellant suffered a lot due to the accident that occurred on 18.01.2000. The tribunal has already granted an amount of Rs.25,000. Considering the nature of injuries sustained and the sufferings that the appellant had undergone after the accident, I find that the amount is to be enhanced to Rs.75,000/-. Therefore, there will be an additional amount of Rs.50,000/- under the aforementioned head. Loss of amenities :- The learned counsel for the appellant submitted that the tribunal has not awarded any compensation under the head loss of amenities. On a perusal of the tribunal award, I find that no amount was awarded under the afore head. Considering the nature of injuries sustained as well as the age and avocation of the appellant, I am inclined to grant an amount of Rs.50,000/- under the head loss of amenities. On a perusal of the tribunal award, I find that no amount was awarded under the afore head. Considering the nature of injuries sustained as well as the age and avocation of the appellant, I am inclined to grant an amount of Rs.50,000/- under the head loss of amenities. Compensation for permanent disability :- The learned counsel for the appellant submitted that while the case was filed before the tribunal Ext.A16 disability certificate, the percentage of disability was assessed as 35%, and the tribunal had awarded the compensation taking into percentage of disability as 35%. But pursuant to the filing of the appeal, the appellant was referred to the medical board thrice and had obtained a disability certificate wherein the disability was assessed twice. On perusal of the medical disability certificate issued by the medical board of Medical College Hospital, Kottayam, it is seen that the medical board on 13.03.2023 assessed the percentage of disability at 80% and the said certificate is marked as Annexure X1. It is submitted that he had undergone hip replacement surgery, and pursuant to hip replacement surgery, the appellant was again referred to the medical board by this court on 03.08.2023, and the medical board has issued a disability certificate dated 14.09.2023, wherein the disability of the appellant was assessed as 48%, which is marked as Annexure – X2. The learned standing counsel appearing for the insurance company submitted the disability certificate dated 14.09.2023, the disability was assessed regarding the right lower limb. Hence, the percentage of disability cannot be taken as 48%. The learned standing counsel appearing for the insurance company submitted that at the time of filing the claim petition, the percentage of disability was only 35%. It is true that at the time of filing the claim petition, his percentage of disability assessed by the medical board was only 35%, but pursuant to the filing of the appeal, since this court was not satisfied regarding the percentage of disability, the appellant was further referred to the medical board, and the medical board again assessed his disability and found that the permanent physical impairment of the right lower limb is 48%. I have considered the rival contentions on both sides. I have considered the rival contentions on both sides. On perusal of the disability certificate issued by the medical board, it is seen that prior to the surgery as well as after the surgery, the medical board has assessed the disability, and it is found that he is having a disability. Anyway, there is a dispute regarding the percentage of disability. Considering the injuries sustained and disability assessed by the medical board, this court has come to the conclusion regarding the percentage of disability. On verifying the last medical report dated 14.09.2023, the doctors have opined that there is permanent physical impairment of the right lower limb at 48%, whereas before the hip replacement, the doctors had given an elaborated report wherein the total disability was assessed at 80%. Hence, I find that fixing the percentage of disability at 45% will render justice to the claimant. Accordingly, I fixed the percentage of disability at 45%. Since this court has found that the appellant was permanently disabled, having a disability at 45%, I find that it is a fit case where future prospects also have to be added along with the monthly income fixed by the tribunal. The monthly income fixed by the tribunal is Rs.4,006/-. By adding 40% towards the monthly income fixed, the total income would come to Rs.5,608/- per month. Amount is rounded to Rs.5,600/- per month Accordingly, the compensation payable under the head is recalculated thus: Rs.5,14,080/- (5,600x12x17x45/100). The tribunal has already awarded an amount of Rs.2,86,028/- under the head. Thus, there will be an additional amount of Rs.2,28,052/- under the head compensation for permanent disability, which will carry interest @6% from the date of original petition. Medical expenses :- The learned counsel for the appellant submitted that pursuant to the filing of the appeal, the appellant had undergone replacement of right hip and had incurred additional expenses. The bills for hip replacement surgery were produced along with I.A.No.2 of 2024 dated 29.06.2024. The learned standing counsel appearing for the insurance company also submitted that he has received the copy of I.A.No.2 of 2024 and has verified the original bills produced by the appellant and submitted that the total bills amount comes to Rs.3,56,879/-. There is no objection in allowing the same. The learned standing counsel appearing for the insurance company also submitted that he has received the copy of I.A.No.2 of 2024 and has verified the original bills produced by the appellant and submitted that the total bills amount comes to Rs.3,56,879/-. There is no objection in allowing the same. Accordingly, I am inclined to allow the additional medical expenses of Rs.3,56,879/- over and above the amount awarded by the tribunal, which will carry interest @8% per annum from 29.05.2023 till the payment. Damage to clothing :- Though the appellant has claimed an amount of Rs.1,000/- towards the afore head, the tribunal has not awarded any amount towards the afore head. Considering the entire fact, I am inclined to grant an amount of Rs.500/- towards damage to clothing. 6. Though the appellant claimed enhancement of compensation under the other heads, on a perusal of the records available, I am not inclined to interfere with the compensation awarded by the tribunal under other heads since it appears to be just and reasonable. 7. Thus, the impugned award of the tribunal is modified as follows:- Sl. No. Head of Claim Amount claimed Amount awarded by the tribunal Modified in appeal Total compensation 1 Loss of earnings 40,000 22,033 (not modified) 22,033 2 Transport to hospital 10,000 5,000 (not modified) 5,000 3 Medical expenses 75,000 29,805 3,56,879 3,86,684 4 Bystander expenses 10,000 4,500 5,500 10,000 5 Pain and sufferings 1,50,000 25,000 50,000 75,000 6 Permanent disability 8,00,000 2,86,028 2,28,052 5,14,080 7 Loss of amenities Not claimed Nil 50,000 50,000 8 Damage to clothing 1,000 Nil 500 500 TOTAL 13,00,000 3,72,366 6,90,931 10,63,297 Accordingly, the appeal is allowed in part and the appellant/claimant is awarded an additional compensation of Rs.6,90,931/- (Rupees six lakh ninety thousand nine hundred and thirty one only) over and above the compensation awarded by the tribunal with interest @ 8% per annum from the date of petition till realization and proportionate costs. The respondent insurer shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The claimant shall furnish copies of the PAN Card, ADHAAR Card and bank details before the respondent insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. The claimant shall furnish copies of the PAN Card, ADHAAR Card and bank details before the respondent insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for the insurance company to deposit the said amount before the tribunal. Upon such deposit being made, the entire amount shall be disbursed to the appellant at the earliest in accordance with law. However, it is made clear that the enhanced compensation will not carry interest for the period of delay of 124 days in filing the appeal.