Sreeraman vs United India Insurance Co. Ltd
2021 Latest Caselaw 24011 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
     SATURDAY, THE 18TH DAY OF DECEMBER 2021 / 27TH
                       AGRAHAYANA, 1943
                     MACA NO. 3087 OF 2019
 AGAINST THE AWARD IN OP(MV) 963/2015 OF MOTOR ACCIDENTS
                  CLAIMS TRIBUNAL, PALAKKAD
APPELLANT/PETITIONER :

            SREERAMAN,
            AGED 34 YEARS, S/O. KUTTAN,
            VETTAMPARAMBATH VEEDU,
            TACHAMPARA, PALAKKAD-678 593.
            BY ADV BINOY VASUDEVAN


RESPONDENT/3RD RESPONDENT       :

            UNITED INDIA INSURANCE CO. LTD.,
            MALABAR FORT BUILDING,
            G B ROAD, PALAKKAD-678 001
            REPRESENTED BY ITS MANAGER.
            BY SRI.RAJAN P.KALIYATH, STANDING COUNSEL
            BY ADV.SMT.CIYARA O.M



     THIS    MOTOR   ACCIDENT       CLAIMS   APPEAL   HAVING   BEEN
FINALLY HEARD ON 18.12.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 M.A.C.A.No.3087 of 2019                ..2..




                     M.A.C.A.No.3087 of 2019
          -------------------------------------------------------


                            JUDGMENT

This appeal arises out of award in O.P.(MV)No.963 of

2015 on the file of the Motor Accidents Claims Tribunal,

Palakkad dated 05.11.2018.

2. The petitioner, who met with an accident on

04.04.2015 at about 6.30 a.m. in consequence of a motor

accident, approached the Tribunal and canvassed

compensation to the tune of Rs.18,00,000/- fastening

negligence on the part of the second respondent, the driver of

the lorry bearing registration No.KL-08-AH-8006.

3. R1 and R2 before the Tribunal were set ex

parte.

4. R3 filed written statement and admitted the

policy. Negligence and accident were disputed. Policy admitted M.A.C.A.No.3087 of 2019 ..3..

while disputing quantum.

5. The Tribunal recorded the evidence. PW1 and

Exts.A1 to A27 were marked on the side of the petitioner.

Ext.B1 was marked on the side of the respondents. Exts.C1,

X1 and X2 series were also marked.

6. According to the petitioner, he had sustained

the following injuries;

1) Polytrauma

2) Crush injury right shoulder with branchial plexes injury.

3) Fracture both bones upper 3rd right forearm.

4) Fracture 4th metacarpal with compartment syndrome.

5) Lacerated wound right fingers with extensor tendon injury.

6) Contusion chest and lungs.

7) Head injury with lacerated wound scalp.

8) Deep abrasion 15x10cm

9) Fracture radis and ulna

10) Wedge compression fracture P1.

7. After having appraised the evidence in view of

the above injuries and in consideration of the disability M.A.C.A.No.3087 of 2019 ..4..

certificate produced, the Tribunal granted Rs.9,40,797/-. It is

submitted by the learned counsel for the appellant that the

Tribunal reduced 55.45% disability assessed as per Ext.C1 by

the Medical Board attached to Medical College Hospital,

Thrissur without justification, in a case where, the appellant

sustained severe injuries as extracted above.

8. Per contra, it is submitted by the learned

counsel for the insurance company that, going by the narration

in paragraph 14 of the award, it was found by the Tribunal that

as per Ext.A27 issued by PW1, who was the employer of the

appellant, to the effect that, he was given employment as a

casual worker and after fixing Rs.8,000/- as the difference in

income, the Tribunal granted Rs.6,45,120/- under the head loss

of earning power and disability. Therefore, no amount under

this head is liable to be granted.

9. The learned counsel for the appellant

attempted to point out that as per Ext.X1 certificate proved

through PW1, the Tribunal fixed Rs.14,750/- as the monthly M.A.C.A.No.3087 of 2019 ..5..

income and thereafter, the Tribunal wrongly deducted the

same at Rs.8,000/-. Though 40% addition was granted towards

future prospects, the Tribunal went wrong in fixing Rs.8,000/-

as monthly income.

10. In this context also, the learned counsel for the

insurance company highlighted his employment as a casual

worker as per Ext.A27. The learned counsel submitted further

that though PW1 was examined and Ext.A27 let in evidence,

the difference in salary due to re-employment of the appellant

was not brought into since the story of re-employment itself is

unbelievable.

11. In order to allay the controversy in the matter

of disability, I have perused Ext.C1. Ext.C1 shows 55.45%

disability to the appellant. In fact, the disability certificate

issued by the Medical Board showing 55.45% disability ought

to have been accepted by the Tribunal considering the injuries

as extracted. Thus the Tribunal cannot be justified in this

regard. In such scenario, I am inclined to accept 55% disability M.A.C.A.No.3087 of 2019 ..6..

for practical calculation of the disability income. of the disab

12. Coming to the monthly income, it is true that

Rs.14,750/- was fixed as the monthly income based on

Ext.A26 and Ext.X1 relying on the evidence of PW1. However,

PW1 given evidence in tune with Ext.A27 to the effect that the

appellant was given re-employment as a casual worker.

However, what actually, at present, is the monthly income of

the appellant was not deposed by PW1. No attempt made by

the appellant also to adduce positive evidence in this regard.

This is the context on which, the Tribunal fixed Rs.8,000/- per

month with 40% addition i.e. Rs.11,200/- for calculating the

disability income. I do not think that the monthly income fixed

by the Tribunal is unreasonable. As such, I am not inclined to

revisit the monthly income fixed by the Tribunal to arrive at the

disability income. However, the loss of disability income

required to be re-calculated fixing the disability at 55%.

11,200x12x16x55%=11,82,720/-

out of which, Rs.6,45,120/- was granted by the M.A.C.A.No.3087 of 2019 ..7..

Tribunal. Rs.11,82,720-6,45,120=5,37,600/- more is granted

under this head.

13. The learned counsel for the appellant would

submit that Rs.40,000/- alone was granted under the head pain

and sufferings and Rs.25,000/- alone was granted under the

head loss of amenities. According to him, the compensation

granted under the above heads also required to be increased

having noticed the injuries and consequential treatment.

According to the learned counsel for the insurance company,

reasonable amounts on other heads were granted and

therefore, no increase under these heads is warranted.

14. Having considered the injuries narrated, I am

inclined to grant Rs.10,000/- more under the head pain and

sufferings and Rs.10,000/- more is granted under the head

loss of amenities.

In the result, this appeal is allowed in part. It is

ordered that the appellant is entitled to get enhanced

compensation to the tune of Rs.5,57,600/- (Rupees Five lakh M.A.C.A.No.3087 of 2019 ..8..

Fifty Seven Thousand Six Hundred only) at the rate of 9%

interest granted by the Tribunal, excluding the amount already

granted by the Tribunal, from the date of petition till the date

of deposit or realisation. The insurance company is directed to

deposit the same in the name of the appellants in equal

proportion within two months from today and on deposit, the

appellants are at liberty to to release the same.

Sd/-

A.BADHARUDEEN, JUDGE rkj