IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
MACA NO. 2661 OF 2014
AGAINST THE AWARD DATED 28.01.2014 IN OPMV 307/2013 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT/PETITIONER:
ASSAIN,
AGED 52 YEARS,
S/O.IBRAHIM, KALPALLI HOUSE,
OMASSERY P.O, KODUVALLY(VIA),KOZHIKODE.
BY ADVS.
SRI.R.SUDHISH
SMT.M.MANJU
RESPONDENTS/RESPONDENTS:
1 AHAMMED KABEER
S/O.USSAIN V.K, VELLARAMKALLIL HOUSE,
VAVAD.P.O, KODUVALLY VIA, KOZHIKODE-673572.
2 NATIONAL INSURANCE COMPANY LIMITED
NOOR COMPLEX, ARAYADATHUPALAM, MAVOOR
ROAD,KOZHIKODE-673661.
BY ADVS.
SMT.DEEPA GEORGE
SRI.M.A.GEORGE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 08.06.2022, THE COURT ON 14.06.2022 DELIVERED THE
FOLLOWING:
M.A.C.A.No.2661/2014 2
A. BADHARUDEEN, J.
================================
M.A.C.A.No.2661 of 2014
================================
Dated this the 14th day of June, 2022
JUDGMENT
The appellant is the petitioner in O.P(MV).No.307/2013 on the file of the Motor Accidents Tribunal, Kozhikode and he assails award dated 28.01.2014 in the above case, highlighting inadequacy. The respondent herein are the respondents before the Tribunal.
2. In this matter, the appellant, who met with an accident on 15.11.2012 at 4.30 pm while riding his motorcycle, was alleged to be hit down by another motorcycle driven by the 1 st respondent. The 2nd respondent is the insurer of the 1st respondent.
3. The 2nd respondent filed written statement and opposed the claims under various heads, while opposing policy.
4. The Tribunal examined PWs 1 and 2 and marked M.A.C.A.No.2661/2014 3 Exts.A1 to A13 on the side of the appellant. No document marked on the side of the respondents. Finally the Tribunal granted Rs.1,01,000/- as compensation with 8% interest.
5. While canvassing increase under various heads, it is submitted by the learned counsel for the appellant that the appellant was a permanent employee of Malabar Cements, Palakkad, working as Electrician cum Lineman. According to the learned counsel for the appellant, Rs.12,490/- claimed under Ext.A14 series medical bills is to be granted. It is urged that the Tribunal wrongly fixed Rs.3,500/- as the monthly income for fixing disability income, by applying multiplier 9 for calculating post retirement disability income. According to the learned counsel, though the appellant is not disputing fixation of disability after fixing 9 as the multiplier, considering the loss of income during the period of post retirement, the monthly income fixed by the Tribunal at Rs.3,500/- and the functional disability fixed at 5% are strongly opposed with prayer to revisit the same.
M.A.C.A.No.2661/2014 4
6. It is argued further that as per Ext.A1 disability certificate issued by PW1, 20% disability was assessed. However, the Tribunal reduced the same to 5% functional disability.
7. Opposing the increase in the monthly income as well as the percentage of disability fixed at 5%, the learned counsel for the insurance company would urge that reasonable compensation was granted by the Tribunal and the enhancement sought for is on higher side.
8. In this case, admittedly, the appellant was a permanent employee of Malabar Cements. No documents produced to show that he lost any income on account of the injuries or his promotion, etc. Ext.A6 is the copy of discharge summary issued from Santhi Hospital, Omassery. Type I compound fracture both bones left leg is the serious fracture noted in so far as the appellant is concerned. It is true that Type II compound fracture P1 left great toe, Type II compound fracture 5th metatarsal shaft and Type II compound fracture P2 left ring finger were also diagonised and treated. Nail M.A.C.A.No.2661/2014 5 fixation done on left leg. As per Ext.A1, Dr.Abdul Jaleel, Orthopaedic Surgeon of Santhi Hospital issued a certificate stating that the appellant sustained 20% permanent disability. Doctor got examined as PW1 to prove the same. During examination, PW1 supported Ext.A1. But during cross examination, PW1 given evidence that there was no malunion or non-union of bowel but it was a case of delayed union of the bowel. Thus it appears that 20% permanent disability on the left lower limb assessed as per Ext.A1 is not fully established. Though the Tribunal lowered the same to 5%, considering the nature of fracture and the treatment thereof, I am of the view that the disability can be fixed at 10%, instead of 5% fixed by the Tribunal. Following the principles in [(2011) 13 SCC 236], Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. the income taken for calculating post-retirement disability income can be increased to Rs.8,500/-, since the accident is of the year 2012. Therefore, apart from granting Rs.12,490/- under the head medical expenses acting on M.A.C.A.No.2661/2014 6 Ext.A14 series, the amount spent during the period of admission for implant removal, I am inclined to recalculate the disability income of the appellant as under:
8,500 X 12 X 9 X 10/100 = Rs.91,800/-, out of which Rs.18,900/- was granted by the Tribunal. Hence, the balance amount to the tune of Rs.72,900/- more is granted under the head `loss of future earning power'. It appears that in all other heads, the Tribunal granted reasonable compensation. Therefore, I am not inclined to increase any amount under other heads.
In the result, this appeal is allowed. It is ordered that the appellant is entitled to get enhanced compensation to the tune of Rs.85,390/- (Rupees Eighty five thousand three hundred ninety only) at the rate of 8% interest granted by the Tribunal from the date of petition till the date of deposit or realisation excluding the period of 87 days wherein, grant of interest was specifically disallowed by the order in C.M.Application No.3072 of 2014 dated 18.01.2022. The insurance company is directed to deposit M.A.C.A.No.2661/2014 7 the same in the name of the appellant within two months from today. On deposit, the appellant can release the same.
Sd/-
(A. BADHARUDEEN, JUDGE) rtr/