IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 834 of 1998(C)
1. MANI
... Petitioner
Vs
1. JOSE @ KUNJU KUNJU
... Respondent
For Petitioner :SRI.JOY GEORGE
For Respondent : No Appearance
Dated :19/01/2010
O R D E R
HARUN-UL-RASHID,J.
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A.S.NO.834 OF 1998 &
CROSS APPEAL
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DATED THIS THE 19TH DAY OF JANUARY, 2010
JUDGMENT
A.S.No.834/98
When the appeal was called, neither the appellants nor
their counsel are present. Name of the appellants called. Absent.
Hence, the appeal stands dismissed for default.
Cross Appeal.
2. This cross appeal was filed by the lst
respondent/plaintiff challenging the quantum of compensation
granted by the court below. The short facts of the case are as
follows:
The defendants at about 4 p.m. on 25/12/1990 attacked the
plaintiff, his younger brother Joshi and their employee by name
Baby with iron rods and wooden planks. Joshi succumbed to
injuries on the way to the hospital. Plaintiff sustained serious
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injuries leading to physical disability. Police registered a case
against the defendants. Plaintiff was taken to Medical College
Hospital, Kottayam on the very same day. He was admitted there
and discharged on 21/1/91 after 26 days’ treatment as an in-
patient. According to the plaintiff, he continued treatment after
discharging from the hospital. As a result of the injury the
plaintiff lost his left eye. He is using artificial eye at present.
According to him, there was four fractures on his body and he
sustained nine serious injuries as a result of the incident. It is also
averred that he is disabled from doing any work as a result of the
criminal acts of the defendants. It is the plaintiff’s case that the
defendants are jointly and severally liable for the damages caused
to the him. Plaintiff claimed damages under different heads.
3. The defendants in their written statement denied the
averments in the plaint. It is averred that they have not assaulted
the plaintiff and that the plaintiff is not entitled to realise any
amount towards damages from them. On the side of the plaintiff
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PWs. 1 to 3 were examined and Exts.A1 to A5 were marked.
The defendants examined DW1. No documentary evidence was
adduced. The trial court framed issues and examined the
contentions of the respective parties. The trial court, after
appreciating the oral and documentary evidence including Ext.A1
accident-cum-wound certificate, Ext.A2 copy of the patient ticket
from the Medical College Hospital, Kottayam, Ext.A3 case sheet
and Exts.A4 and A5 documents, concluded that the plaintiff has
sustained serious injuries at about 4 p.m. on 25/12/1990. The
trial court also considered the question as to whether the plaintiff
has sustained injuries on the basis of the incident as alleged in the
plaint. The trial court held that the evidence adduced
brings to light that the defendant 1 to 3 have caused
injuries on the body of the plaintiff. The court below
also concluded that the evidence adduced by the plaintiff
is not sufficient to prove the involvement of defendants 4
and 5. The trial court on evidence held that grevious injury
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was inflicted by the lst defendant with wooden plank and as a
result of this the plaintiff lost his left eye.
4. The further question considered by the court below is the
quantum of damages. The cross appeal is filed challenging the
quantum of damages awarded by the court below. According to
the cross appellant, the compensation awarded by the court below
under various heads is little, too inadequate and unfair. It is also
argued that considering the gravity of pain and suffering for
which the plaintiff had undergone treatment as an in-patient and
the nature of injuries sustained by the plaintiff and for many
other reasons alleged and proved, the plaintiff is entitled to
realise the amount as claimed in the plaint. According to the
learned counsel for the cross appellant, the plaint claim is very
reasonable and not excessive and therefore, on the amount
claimed in the plaint and interest should have been decreed by the
court below. I have examined the heads under which the damage
was assessed. This is a case where on the date of incident
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plaintiff has sustained grevious injuries and as a result of the
injuries inflicted he was hospitalised as in-patient for 26 days. It
has also come out in evidence that plaintiff’s brother succumbed
to injuries on the way to hospital. Plaintiff was admitted in the
Medical College Hospital on the date of incident and undergone
a major surgery. He had suffered four fractures and other major
injuries. As a result of the injuries inflicted on the plaintiff he
became a disabled man. It is also submitted that the plaintiff is
deprived of amenities of life being a permanently disabled man,
that he was looking after the affairs of the family and due to his
present physical condition, he is not in a position to look after the
family affairs or to take care of his family. In this context, this
Court is called upon to examine the quantum of damages
awarded by the court below.
5. Plaintiff claimed a sum of Rs.10,000/- towards the
expenses incurred by him for treatment. The court below only
awarded a sum of Rs.3,000/-. It is a fact that he was under
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treatment as an in-patient for 26 days and that he continued
treatment after he was discharged from the hospital. He was
treated in the Medical College Hospital, Kottayam. It has come
out in evidence that the plaintiff has to conduct a scanning before
surgery and that he had undergone a major surgery. The plaintiff
also gave evidence stating that he had to purchase medicines
from outside. During the pendency of the suit also for permanent
disablement, the plaintiff was undergoing treatment spending
money. As a result of the grevious injuries sustained by the
plaintiff he lost his left eye and he has fitted with an artificial eye.
Considering all these facts, I do not think that the claim of
Rs.10,000/- is in any way unreasonable. So, the plaintiff is
entitled to Rs.7,000/- towards additional compensation under this
head. Towards transportation charges his claim of Rs.1,000/-
was not accepted and only Rs.500/- was awarded by the court
below. It is an undisputed fact that he was taken to the Medical
College Hospital in a car. I think that Rs.1,000/- claimed is
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reasonable and therefore, the claim of Rs.1,000/- should have
been awarded. I hold that the plaintiff is entitled to Rs.500/-
towards additional compensation for transportation charges.
6. The next head under which the plaintiff claimed
compensation is by-stander expenses. The court below declined
to grant any amount towards by-stander expenses stating that his
wife and near relatives were the by-standers in the hospital. I do
not think that simply because his wife and near relatives attended
the patient in the hospital, the plaintiff is not entitled to any
amount towards compensation under this head. Even if wife and
near relatives attended the plaintiff in the hospital, the claim
under the head ‘by-standard expenses’ cannot be said to be
unreasonable. The plaintiff spent nearly a month in the hospital.
Therefore, the plaintiff is entitled to Rs.1,500/- towards by
standar expenses.
7. The next claim of the plaintiff is compensation for pain
and suffering. The plaintiff was admitted in the hospital on
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25/12/1990 and was discharged on 21/1/91. He had undergone
serious surgery. His left eye ball was removed. He is at present
using an artificial eye ball. The inference to be taken in the
circumstance is that the plaintiff suffered severe pain for the
period of injury and during the period of treatment. The claim
under this head was Rs.25,000/- and the court below awarded
only Rs.5,000/- as compensation for pain and sufferings.
Considering the serious injuries sustained by the plaintiff, the
surgery he had undergone, removal of his left eye ball and other
sufferings caused due to the infliction of other injuries, this Court
is of the view that the plaintiff is entitled to Rs.15,000/- towards
additional compensation under this head.
8. Under the disability head the claim was Rs.30,000/-. The
plaintiff was aged 42 years at the time of incident. I have already
stated about the injuries sustained by the plaintiff and the
permanent disability caused to him as result of the incident. The
court below awarded Rs.28,800/- towards compensation for
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permanent disability. The amount was worked out taking the
monthly income at Rs.600/-. Compensation was assessed
applying capitalised method adopting the multiplier of 10. I
think the amount claimed by the plaintiff under this head is too
inadequate, considering his permanent disability. Though the
plaintiff claimed Rs.30,000/- the court below awarded
Rs.28,800/- as compensation under this head. In the
circumstances, Rs.1,200/- more is granted to the plaintiff and the
total compensation awarded under this head is Rs.30,000/-.
9. For loss of amenities of life and shortened expectation of
life, the court below awarded Rs.4,000/-. I am of the view that
the award of Rs.4,000/- under the head is inadequate.
Considering the facts and circumstances discussed above,
Rs.15,000/- should have been granted as against the claim of
Rs.25,000/-. So, I fix a total sum of Rs.15,000/- towards loss of
amenities of life and shortened expectation of life. Plaintiff is
therefore entitled to Rs.11,000/- as additional amount.
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In the result, the decree and judgment passed by the court
below is modified. The plaintiff is allowed to realise a sum of
Rs.36,200/- as additional compensation with interest at the same
rate granted by the court below.
The cross appeal is allowed in part with proportionate costs.
HARUN-UL-RASHID,
JUDGE.
kcv.
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HARUN-UL-RASHID,J.
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A.S.NO.834 OF 1998 &
CROSS APPEAL.
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JUDGMENT
19TH JANUARY, 2010