Jain K.P vs C.R.Siyad
2021 Latest Caselaw 24021 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. 1533 OF 2013
AGAINST THE AWARD DT.26.02.2013 IN OPMV 1246/2007 OF MOTOR
          ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANT/PETITIONER:

         JAIN K.P., AGED 32,
         S/O.K.K.PADMANABHAN, RESIDING AT KIZHAKKEVEETTIL
         HOUSE, PERUMBALLOOR P.O., PERINGUZHA,
         MUVATTUPUZHA.
         BY ADVS.
         SMT.ANEY PAUL
         SRI.PHILIP J.VETTICKATTU


RESPONDENTS/RESPONDENTS:

    1    C.R.SIYAD
         10/557, CHALAKKAL HOUSE, ELOOR P.O., KALAMASSERY,
         ERNAKULAM DISTRICT-683104.
    2    SINISH K.P.
         S/O.K.N.PURUSHOTHAMAN, KANJAMPURATH HOUSE,
         PERUMBALLOOR P.O., PERINGUZHA, MUVATTUPUZHA-
         686673.
    3    THE BRANCH MANAGER
         THE UNITED INDIA INSURANCE CO.LTD., 2ND FLOOR,
         PMS BUILDING, ELOOR ROAD, KALAMASSERY-683 104.



         FOR R3 SRI.JOHN JOSEPH VETTIKAD,SC

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.1533 of 2013                2




                      A. BADHARUDEEN, J.
             ================================
                      M.A.C.A No.1533 of 2013
             ================================
              Dated this the 18th day of December, 2021


                             JUDGMENT

The original petitioner in O.P (MV) No.1246 of 2007 on the

file of the Motor Accidents Claims Tribunal, Muvattupuzha is the

appellant and respondents 1 to 3 before the Tribunal are the

respondents herein.

2. Heard both sides.

Brief facts: The appellant/petitioner, who had suffered

severe injuries in an accident occurred on 15.04.2007 at about

7.45 p.m while riding a motorcycle bearing Registration No.KL-

17/A 9938 through Muvattupuzha-Arakuzha public road on being

hit by a car bearing Registration No.KL-07/AJ 9745 driven by the

2nd respondent, approached the Tribunal and claimed

compensation to the tune of Rs.5,50,000/-. Respondents 1 and 2

were set exparte. The 3rd respondent filed written statement and

admitted the policy while disputing negligence and quantum of

compensation.

3. The Tribunal, after examining PW1 and marking

Exts.A1 to A3 on the side of the petitioner and Exts.B1 and B2 on

the side of the respondents, arrived at the compensation of

Rs.3,45,900/-.

4. The appellant/petitioner, who is aggrieved by the said

award, is now before this Court. It is submitted by the learned

counsel for the appellant that the Tribunal fixed the monthly

income of the appellant/petitioner at Rs.3,000/- though the

accident was of the year 2007. According to the learned counsel

for the appellant/petitioner, the appellant claimed his income as

Rs.6,000/- by doing the work of Mason.

5. It is submitted by the learned counsel for the insurance

company that no evidence to substantiate the income, in fact,

adduced before the Tribunal. But when the learned counsel was

taken to the decision reported in [(2011) 13 SCC 236],

Ramachandrappa v. Manager, Royal Sundaram Alliance, the

learned counsel for the insurance company conceded that

Rs.6,000/- claimed by the petitioner can be taken as the monthly

income in this case. It is submitted by the learned counsel for the

appellant further that the Tribunal fixed 20% alone as the

disability, though as per Ext.A11 disability certificate, 28% whole

body disability was assessed by PW1, who authored the same.

The learned counsel for the appellant pressed for fixing 28%

disability, highlighting the injuries sustained. Whereas the

learned counsel for the insurance company opposed this

contention and submitted that having considered the injuries

available on the treatment records, without any malunion or

misunion, 28% disability assessed by PW1 is on higher side and

then also the Tribuinal fixed the same at 20%. Therefore, no

further increase is liable to be granted.

6. I have perused the treatment records inclusive of

Ext.A5 wound certificate and Ext.A7 treatment certificate. It

could be noticed that the appellant had sustained compound

comminuted fracture right femur intercondylar and

supracondylar, open right knee joint with disrupted extensor

expansion and loss of patella, closed fracture middle third of right

leg with comparment syndrome and ischemic limb. However, the

treatment records do not suggest any infirmities so as to have

28% of disability. However, PW1, who did not treat the

appellant, issued Ext.A11. The appellant was reluctant to

produce a disability certificate from the doctor, who treated him

or from the Medical Board. Instead, he approached a private

doctor for the purpose of getting disability certificate alone. On

reading the disability certificate at par with the evidence of PW1

and the nature of injuries, I am of the view that the disability

fixed by the Tribunal at 20% disability does not require any

interference. However, disability income requires recalculation

by fixing the monthly income at Rs.6,000/- as under:

6000 X 12 X 18 X 20/100 = Rs.2,59,200 /-, out of which

Rs.1,29,600/- was granted by the Tribunal. Hence, Rs.1,29,600/-

more is granted under the head compensation for permanent

disability income.

7. It appears that the Tribunal granted Rs.18,000/- under

the head loss of earnings for a period of 6 months @ Rs.3,000/-

per month. Taking Rs.6,000/- as the monthly income, the loss of

earnings for 6 months would come to Rs.36,000/-. Therefore,

Rs.18,000/- more is granted under the head loss of earnings.

8. Coming to the other heads, it appears that the Tribunal

granted just and reasonable compensation and therefore, no

further enhancement is warranted.

In the result, the appeal is allowed in part. It is held that the

appellant is entitled to get Rs.1,47,600/- (Rupees One lakh forty

seven thousand six hundred only) as enhanced compensation and

the award impugned is modified as above with the same rate of

interest 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 appellant within two

months from today and the appellant is at liberty to release the

same, on deposit.

Sd/-

(A. BADHARUDEEN, JUDGE) rtr/