Kerala High Court
Unnikrishnan vs Vinod Chandra Sekhar on 4 December, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
SATURDAY, THE 4TH DAY OF DECEMBER 2021/13TH AGRAHAYANA, 1943
M.A.C.A.NO. 2341 OF 2013
AGAINST THE AWARD DATED 27.06.2013 IN O.P.(MV)
NO.939/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM
APPELLANT:
UNNIKRISHNAN
AGED 46 YEARS, S/O.KRISHNAN, KORATHETH HOSUE,
MATTAYA P O, PATTAMBI, OTTAPALAM TALUK,
PALAKKAD DIST.
BY ADVS.
SRI.T.C.SURESH MENON
SRI.P.S.APPU
SRI.A.R.NIMOD
RESPONDENTS:
1 VINOD CHANDRA SEKHAR
S/O.CHANDAR SEKHAR, PADINHARAPAT HOUSE,
CHAKKUMKANDAM P O, PALUVAI, THRISSUR DIST.,
PIN-680522.
2 SUMA CHANDRA SEKHAR
D/O.CHANDAR SEKHAR, PADINHARAPAT HOUSE,
CHAKKUMKANDAM P O, PALUVAI, THRISSUR DIST.,
PIN-680522.
3 THE NEW INDIA ASSURANCE COMPANY LIMITED,
ORISON COMPLEX, WADAKKANCHERRY ROAD,
KUNNAMKULAM, THRISSUR DIST, PIN-680503.
R3 BY ADV SRI.N.S.NAJEEB
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR ADMISSION ON 27.11.2021, THE COURT ON 04.12.2021
DELIVERED THE FOLLOWING:
2
M.A.C.A.No.2341 of 2013
P.G. AJITHKUMAR, J.
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M.A.C.A.No. 2341 of 2013
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Dated this the 4th day of December, 2021
JUDGMENT
Appeal under Section 173 of the Motor Vehicles Act,
1988. The appellant preferred the appeal on dissatisfying with
the amount of compensation allowed to him by the Motor
Accidents Claims Tribunal, Ottappalam in O.P.(MV) No.939 of
2009.
2. On 12.06.2009 the appellant was walking along
Koottupatha-Cherumthuruthy public road. At about 9.30 a.m.
a car bearing Reg.No.KL-46-A-6392 being driven by the 1st
respondent hit him down causing serious injuries. He was
taken to Sevana Hospital, Pattambi, where he had to be
treated as an inpatient. As a result of rash and negligent
driving of the car by the 1st respondent the accident had
occurred.
3. The 2nd respondent is the owner and the 3rd
respondent is the insurer of the vehicle. The 3 rd respondent
M.A.C.A.No.2341 of 2013
alone entered appearance in the claim petition before the
Tribunal. In the written statement filed by the 3rd respondent,
rashness and negligence attributed to the 1 st respondent was
denied. Age, income and occupation of the appellant were
also denied. However, it was admitted that the vehicle had a
valid insurance policy.
4. The Tribunal after considering the evidence, mainly
the oral testimony of PW1, Exts.A1 to A10, X1 and X2, passed
an award enabling the appellant to realise an amount of
Rs.57,400/- along with interest and cost from the 3 rd
respondent.
5. The appellant assails the award mainly on two
grounds, (i) disability assessed as per Ext.X2 was illegally
rejected, and (ii) monthly income was fixed at a very low rate.
6. Having heard the learned counsel appearing for the
appellant and the learned counsel appearing for the 3 rd
respondent, I hold that the notional income fixed by the
Tribunal is incorrect. Income was taken as Rs.4,000/-. The
claim of the appellant is that he as a barber by profession has
M.A.C.A.No.2341 of 2013
been earning Rs.5,000/- per month. Of course, when he
categorically pleads and deposes before the court that that
was his monthly income, it is not possible to fix his income
notionally. However, in the absence of a reason to discard the
version of PW1, his monthly income should have been taken
as Rs.5,000/-. To that extent, the decision of the learned
Tribunal is varied.
7. Ext.X1 is the certificate issued by the first Medical
Board. On the application of the appellant he was referred to
a special Medical Board. The learned Tribunal did not accept
the disability assessed by that second Medical Board as per
Ext.X2. The Medical Board considered two aspects, namely,
the neurological impact and hearing impairment. As regards,
the neurological infirmities on account of the accident in
question, the Medical Board assessed the disability at 10%.
Taking into account the history of hearing impairment, even
prior to the road traffic accident in question, the Board
concluded that the appellant did not sustain any disability in
reference to the loss of hearing.
M.A.C.A.No.2341 of 2013
8. The Tribunal took the view that the Medical Board
as per Ext.X1 did not find any disability and therefore the
report of the second Medical Board assessing disability cannot
be accepted. It was observed the appellant was some disease
to his ear even from childhood and therefore the assessment
of disability as per Ext.X2 cannot be accepted. The said view
is incorrect. The Medical Board after considering the previous
infirmities only, concluded that the appellant had 10%
disability as a result of the injury sustained in the accident in
question. There is no reason to discard the said finding.
Therefore, I hold that the Tribunal was incorrect in finding that
the appellant did not have any disability. Reversing the said
finding, I hold that the appellant suffered a neurological
disability of 10%. The appellant being a barber, his memory
and controlled bodily movements are of vital importance. He
was aged 42 years at the time of accident and could have
continued his avocation for long. Taking into account such
aspects, I hold that his functional disability can be assessed
as 10%.
M.A.C.A.No.2341 of 2013
9. Taking income of the appellant as Rs.5,000/- and
functional disability as 10% and the multiplier '14', and also
considering the fact that he was aged 42 years, the
compensation awarded to him for disability is Rs.5,000 x 12 x
14 x 10% = Rs.84,000/-.
10. The injury sustained by the appellant was abrasion
over left arm, hip, ankle, sub arachnoid haemorrhage, intra
ventricular bleed in the left lateral ventricle, small medial
temporal bleed. Considering the nature of injuries, I refix the
compensation for 'pain and suffering' as Rs.20,000/-,
enhancement of Rs.8,000/-.
11. Compensation for loss of earning is fixed as
Rs.8,000/- taking the monthly income as Rs.4,000/-. Since
the monthly income is refixed as Rs.5,000/-, the appellant is
entitled to get an enhanced compensation of Rs.2,000/- under
this head.
12. I am of the view that compensation awarded under
all other heads by the Tribunal is just and reasonable.
M.A.C.A.No.2341 of 2013
13. Total enhanced compensation entitled by the
appellant in the light of the findings entered into above is
Rs.84,000 + 8,000 + 2,000 = Rs.94,000.
In the result, the appeal is allowed in part, by enhancing
the compensation by an amount of Rs.94,000/- with interest
at the rate of 7.5% per annum on the enhanced amount, from
the date of petition till the date of deposit, and a costs of
Rs.3,000/-. The 3rd respondent is ordered to make payment of
the enhanced compensation with interest and costs through
the Tribunal within sixty days from the date of receipt of a
certified copy of the judgment. The Tribunal shall see that the
amount of enhanced compensation is duly disbursed to the
appellant in accordance with law.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
