IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 508 of 2004()
1. ROSAKUTTY W/O. PAULOSE,
... Petitioner
Vs
1. O.J.KURIAKOSE, S/O. JOHN,
... Respondent
2. JOSEPH, S/O. GEORGE, PANACKAL HOUSE,
3. THE ORIENTAL INSURANCE COMPANY LTD.,
For Petitioner :SRI.K.JAJU BABU
For Respondent :SRI.S.RAJEEV
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :20/11/2008
O R D E R
J.B. KOSHY & THOMAS P.JOSEPH, JJ.
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M.A.C.A. No.508 of 2004
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Dated this the 20th day of November, 2008
J U D G M E N T
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Thomas P. Joseph, J.
Appellant, an Attender in Janatha Hospital, during the
relevant time while travelling in a Jeep driven by the second
respondent met with an accident involving that vehicle on
27.5.2000. Alleging that the accident occurred due to the
rashness and negligence of the second respondent who was
driving that vehicle, she claimed Rs.1,50,000/- as compensation.
Tribunal found that the offending vehicle hit a signal post due
to its rash and negligent driving by the second respondent,
respondents are liable to pay compensation and awarded
Rs.31,000/-. Appellant, claiming that compensation awarded is
meagre has preferred this appeal.
2. Heard learned counsel for the appellant and the
contesting respondent.
3. Point for consideration is whether appellant is
entitled to get enhanced compensation?
4. Perused the relevant records.
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5. The Point:
Though the third respondent insurer of the offending vehicle
had raised a contention that appellant was a gratuitous passenger in
the offending vehicle, the Tribunal found against that contention.
What arises for consideration in this appeal is only whether
appellant is entitled to get enhanced compensation as claimed by her.
Exhibit A5 is the copy of the wound certificate. It is seen that the
appellant suffered lacerated wound on the right eyebrow 9×2 cm. with
oedema of upper eye lids, lacerated wound on the upper lip 2×2 cm.
and avulsion (R) upper incisor. Report of CT Scan showed diffuse brain
oedema, fracture of right frontal bone and fracture of naso ethmoid
complex. Exhibit A6 is the discharge summary. Appellant underwent
inpatient treatment for 15 days. It is also revealed from Exhibit A6
that she had fracture of transverse process of CI and TI vertebra and
fracture of 1st rib, right side. Exhibit A7 series are medical bills for
Rs.15,461/-. Tribunal found that items 26 to 31 in Exhibit A7 series
cannot be entertained and the rest of the bills covered Rs.11,603/-.
Tribunal found that appellant may not have been able to work for a
period of two months and awarded Rs.3,000/- as compensation for loss
of earnings.
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6. It is contended by the counsel for appellant that the
monthly income fixed by the Tribunal and compensation awarded on
all counts are low. Further contention is that even in the absence of
any certificate regarding disability, compensation ought to have been
awarded for disability and loss of earning power considering the nature
of the injuries evidenced by Exhibit A6 and the evidence of P.W1,
Medical Officer who has treated the appellant.
7. Appellant claimed that she was earning Rs.2,500/- per
month from her job as Attender in Janatha Hospital. Tribunal
however, fixed the monthly income as Rs.1,500/-. We do not find
reason to disbelieve the version of the appellant that she was working
as Attender in Janatha Hospital during the relevant time. Monthly
income claimed by the appellant being reasonable, we are persuaded
to accept the same.
8. It is seen that the appellant sustained severe injuries as
proved by Exhibit A5 and A6. Tribunal awarded Rs.3,000/- for of loss of
earnings for a period of two months. In the nature of the injuries
suffered by the appellant and considering the fact that she had
undergone inpatient treatment for 15 days, we are inclined to think
that she would not have been able to work for three months. At the
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rate of Rs.2,500/- per month compensation for loss of earnings
payable to the appellant comes to Rs.7,500/- as against Rs.3,000/-.
Appellant is entitled to get additional compensation of Rs.4,500/- on
that count.
9. So far as disability and loss of earning power are
concerned, it is not the case of the appellant that on account of the
injuries sustained, she lost her job. Hence the claim for compensation
for disability and loss of earning cannot stand. It is also revealed from
the evidence of P.W.1, Medical Officer that fracture of C1 and T1
vertebrae and fracture of maxilla had no clinical significance. In the
circumstances, we are not inclined to accept the contention that
appellant suffered disability and consequent loss of earning power. At
the same time, considering the nature of the injuries proved by
Exhibits A5, A6 and X1 (Exhibit X1 is the treatment record), we are
inclined to think that appellant has to suffer some discomfort and
inconvenience due to the injuries which is required to be
compensated. Considering all relevant factors, we award Rs.6,000/-
as compensation on that count. Though it is contended by the
learned counsel that compensation awarded on other counts are low,
on considering the relevant facts and evidence adduced, we are not
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inclined to accept that contention. Thus the additional compensation
payable to the appellant is Rs.10,500/- which will carry interest at the
rate of 7.5% per annum.
Appeal therefore, is allowed in part. Appellant is allowed to
realise a further sum of Rs.10,500/- (Rupees Ten thousand and five
hundred only) over and above the compensation awarded by the
Tribunal, with interest at the rate of 7.5.% per annum from the date of
application till realisation from respondents 1 to 3, jointly and
severally. Third respondent being the insurer of the offending
vehicle is directed to deposit the said amount in the Tribunal. On such
deposit appellant is allowed to withdraw that amount.
J.B. KOSHY, JUDGE.
THOMAS P.JOSEPH, JUDGE.
vsv
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