Kerala High Court
Noushad vs Sreedaran on 2 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 2ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943
MACA NO. 2716 OF 2009
AGAINST THE AWARD IN OP(MV)NO.444/2006 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD
APPELLANT/PETITIONER:
NOUSHAD, S/O.HAMEED, 22 YEARS,
PANNIKKATTIL HOUSE,
CHOLAYIL,MANNIYAM PERUMBALAM POST, KUDALLUR,
OTTAPAM TALUK,
PALAKKAD DISTRICT.
BY ADVS.
SMT.T.D.RAJALAKSHMI
SRI.R.SREEHARI
RESPONDENTS:
1 SREEDARAN, S/O.KRISHNAN,
KUNDUKATTIL VEEDU,KUMBIDI POST,
UMMATHOOR,OTTAPALAM TALUK.
2 PRADEEP, S/O.BALA GANGADHARAN NAIR
POOLAKKAL CHOLAYIL HOUSE,
KUMBIDI POST,, OTTAPALAM TALUK,
PALAKKAD DISTRICT.
3 THE UNITED INDIA INSURANCE CO.LTD
BRANCH OFFICE,FAISAL BUILDINGS,
MAIN ROAD,, OTTAPALAM,
PALAKKAD DISTRICT.
BY ADVS.
SRI.A.T.ANILKUMAR
SRI.S.ARUN RAJ
SMT.V.SHYLAJA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 02.08.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA No. 2716 of 2009
2
C.S.DIAS,J
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MACA No. 2716 of 2009
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Dated this the 2nd day of August, 2021
JUDGMENT
The appellant was the petitioner in
OP(MV)No.444 of 2006 on the file of the Motor
Accidents Claims Tribunal, Ottapalam. The
respondents in the appeal were the respondents
before the Tribunal.
2. The brief facts, relevant for the determination
of the appeal, are: on 30.09.2005 while the appellant
was standing on the Kumbidi - Thrithala public road,
a motorcycle bearing KL 9/Q 4854 ridden by the 1 st
respondent in a rash and negligent manner hit the
appellant. The appellant turned unconscious and
sustained fractures. He was taken to the Edappal
Hospital and, thereafter, to the West Fort Hospital,
MACA No. 2716 of 2009
Thrissur, where he was treated as an in-patient for a
period of 18 days. The motorcycle was owned by the
2nd respondent and insured with the 3rd respondent.
The appellant was a Mechanic by profession and
earning a monthly income of Rs.4,000/-. The
appellant, hence, claimed a total compensation of
Rs.3,00,000/- from the respondents.
3. The respondent 1 and 2 did not contest the
proceedings and were set ex-parte.
4. The 3rd respondent filed a written statement
refuting the allegations in the claim petition. It was
contended that the accident occurred on account of
the negligence of the appellant. However, the 3rd
respondent admitted that the motorcycle had a valid
insurance coverage.
5. The appellant examined the Doctor who
issued the disability certificate as PW1 and marked
MACA No. 2716 of 2009
Exts.A1 to A16 in evidence. The 3 rd respondent
produced Ext. B1 copy of the insurance policy and
marked it in evidence.
6. The Tribunal, after analysing the pleadings
and materials on record, by an impugned award,
allowed the claim petition, in part, by permitting the
appellant to realise an amount of Rs.2,05,950/- with
interest and cost from the respondents. The 3rd
respondent was directed to pay the compensation
amount.
7. Dissatisfied with the quantum of
compensation the petitioner/appellant is in appeal.
8. Heard Sri.R.Sreehari, the learned counsel for
the appellant/petitioner, Sri.Arun Raj, the learned
counsel appearing for the 3rd respondent - insurer.
9. The questions that emerge for consideration
in the appeal are (i) whether the scaling down of the
MACA No. 2716 of 2009
permanent disability of the appellant by the Tribunal
was justifiable? and (ii) whether the quantum of
compensation awarded by the Tribunal is reasonable
and just?
10. Ext.A4 charge-sheet filed by the police after
investigation proves that the accident occurred on
account of the negligence on the part of the 1st
respondent. Admittedly, the 2nd respondent was the
owner and the 3rd respondent was the insurer of the
motorcycle. Therefore, it is the 3rd respondent who is
to indemnify the liability of the 2nd respondent on
account of the accident.
11. The appellant had examined PW1 who
proved Ext.A14 disability certificate, wherein, the
appellant's permanent disability was certified at 35%.
However, the Tribunal for the reason that the
appellant had not examined himself scaled down the
MACA No. 2716 of 2009
disability to 30%.
12. In Rajkumar v. Ajayakumar [2011(1) KLT
620(SC)] the Hon'ble Supreme Court has held that
the proper course to prove the disability of a person
is to examine the Doctor who issued the disability
certificate or get the disability assessed by a duly
constituted Medical Board.
13. In the instant case, the appellant had
examined PW1 and proved Ext.A14 disability
certificate. In Ext.A14 the disability of the appellant
is clearly stated as 35%. The Tribunal for the sole
reason that the appellant was not examined scaled
down the disability, which was erroneous and totally
unwarranted. Hence, I set aside the finding of the
Tribunal that the appellant has only a permanent
disability of 30%. Accordingly, I re-fix the disability at
35% as certified in Ext.A14.
MACA No. 2716 of 2009
Multiplier
14. As the appellant was aged 18 years and in
view of the law laid down in Sarala Varma and
others v. Delhi Transport Corporation and others
[(2010) 2 KLT 802], the relevant multiplier is '18'.
Loss due to disability
15. In view of the re-fixation of the notional
income of the appellant at Rs.4,000/- per month, his
disability at 35% and the multiplier at '18', I re-fix the
compensation for 'loss due to disability' at
Rs.3,02,400/- instead of Rs.86,400/- awarded by the
Tribunal.
Loss of earnings
16. In view of the re-fixation of the notional
income of the appellant at Rs.4,000/- per month and
the finding of the Tribunal that the appellant was
indisposed for a period of four months, I re-fix his
MACA No. 2716 of 2009
'loss of earnings' at Rs.16,000/- instead of Rs.6,000/-
fixed by the Tribunal.
Loss of amenities
17. The appellant had claimed a total amount of
Rs.35,000/- towards 'loss of amenities'. The Tribunal
awarded only an amount of Rs.8,000/-.
18. Taking into account the fact that the
appellant was treated as an in-patient for a period of
18 days, he was indisposed for a period of four
months and that he has a disability of 35%, I hold that
the appellant is entitled for compensation for 'loss of
amenities' at Rs.20,000/- i.e., an enhancement by a
further amount of Rs.12,000/-
Other heads of claim
19. With respect to the other heads of
compensation, I find that the Tribunal has awarded
reasonable and just compensation.
MACA No. 2716 of 2009
20. On an overall re-appreciation of the
pleadings, materials on record and the law referred to
in the afore-cited decision, I am of the definite opinion
that the appellant/petitioner is entitled for
enhancement of compensation as modified and
recalculated above and given in the table below for
easy reference.
Sl. Heads of claim Amount awarded by Amounts
No the Tribunal (in modified and
rupees) recalculated
by this Court
1 Loss of earning 6,000/- 16,000/-
2 Transport to hospital 4,000/- 4,000/-
3 Medical expenses 82,850/- 82,850/-
4 Compensation for pain and 16,000/- 16,000/-
sufferings
5 Compensation for loss of 8,000/- 20,000/-
amenities
6 Loss due to disability 86,400/- 3,02,400/-
2,03,250/- 4,41,250/-
In the result, the appeal is allowed, in part, by
enhancing the compensation by a further amount of
Rs.2,38,000- with interest at the rate of 7% per
annum from the date of petition till the date of
MACA No. 2716 of 2009
deposit, after deducting 47 days, i.e, the period of
delay in preferring the appeal and as ordered by this
Court on 02.07.2021 in C.M.Appl.No.3203 of 2009
and proportionate costs. The 3rd respondent is
ordered to deposit the enhanced compensation with
interest and proportionate costs before the Tribunal
within a period of two months from the date of receipt
of a certified copy of the judgment. The Tribunal shall
disburse the enhanced compensation to the appellant,
in accordance with law.
Sd/- C.S.DIAS,JUDGE
dlk 02.08.2021
