Kerala High Court
A.T.Vignesh vs Ligesh on 1 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
MACA NO. 3429 OF 2017
AGAINST THE AWARD DATED 31.10.2016 IN OPMV 1105/2013 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL, IRINJALAKUDA
APPELLANT:PETITIONER
A.T.VIGNESH
AGED 24 YEARS
S/O.THRIVIKRAMAN, AGED 24 YEARS, RESIDING AT ATHANIKUZHY
HOUSE, NEAR SACHY CLAY WORKS, P.O.NANDIKKARA, THRISSUR-
680301.
BY ADVS.
SRI.T.C.SURESH MENON
SRI.P.S.APPU
SRI.A.R.NIMOD
RESPONDENTS:RESPONDENTS
1 LIGESH
S/O.BALAN, RESIDING AT KURUPPATHUKATTIL HOUSE, PARAMBI ROAD,
THAZHEKKAD, THRISSUR-680683.
2 THE UNITED INDIA INSURANCE COMPANY LIMITED
PERUMBAVOOR, ERNAKULAM-683542.
BY ADVS.
SRI.JOHN JOSEPH VETTIKAD
SRI.C.JOSEPH JOHNY
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
01.07.2021, THE COURT ON 14.07.2021 DELIVERED THE FOLLOWING:
A.BADHARUDEEN, J.
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M.A.C.A No.3429 of 2017
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Dated this the 14th day of July, 2021
JUDGMENT
The petitioner in O.P(MV) No.1105 of 2013 on the file of the M.A.C.T, Ir-
injalakuda, being dissatisfied with the quantum of compensation awarded by
the Tribunal as per award dated 31.10.2016, has preferred this appeal arraying the
respondents before the Tribunal as the respondents herein.
2. The brief facts of the case :
On 17.07.2013 while the appellant/petitioner was travelling as a pillion rid-
er, a motor cycle bearing Reg.No.KA-04-EM 9007 ridden by his friend one
Anoop, the said motor cycle hit against a lorry bearing Reg.No.KL-07-AE 6951
dangerously parked on the side of the road resulting in severe injuries to him. Ac-
cording to the appellant/petitioner, the 1st respondent driver of the lorry had
parked the lorry in a negligent manner and the same caused the accident. The 1 st
respondent himself is the owner of the lorry and 2nd respondent is the insurer. The
appellant/petitioner claimed a compensation of Rs.5,51,500/- for the injuries suf-
fered. But the Tribunal granted Rs.1,75,800/- as compensation.
3. The 1st respondent remained exparte. The 2nd respondent/insurer filed
written statement and admitted issuance of policy.
4. While canvassing enhancement in the award granted by the Tribunal,
the learned counsel for the appellant/petitioner submitted that going by the deci-
sions reported in Ramachandrappa v. Manager, Royal Sundaram Alliance
[(2011) 13 SCC 236] and Syed Sadiq and others v. Divisional Manager, United
India Insurance Company Ltd. [AIR 2014 SC 1052 : (2014) 2 SCC 735], the
income fixed as Rs.5000/- is too low. Therefore, at least Rs.7,000/- ought to have
been fixed as the monthly income of the appellant/petitioner in this matter,
wherein the accident was on 17.07.2013. This argument was not strongly op-
posed by the learned counsel for the insurance company. In fact, this argument
is convincing in view of the legal position settled. Therefore, following the ra-
tio of the above decisions, I am inclined to fix Rs.7,000/- as the monthly income
of the appellant/petitioner for the purpose of assessment of disability. Hence the
disability income would be : 7000X12X18X10/100 = Rs.1,51,200/-.
5. The learned counsel for the appellant/petitioner further argued that
though as per Ext.A10 certificate produced by the appellant/petitioner 15% is the
whole body disability, the Tribunal fixed the disability at 10% without any
justification and the petitioner's disability would have been fixed as 15% relying
on Ext.A10.
6. Repelling this argument, the learned counsel for the insurance com-
pany submitted that Ext.A10 is the disability certificate issued by a private doctor
and the appellant/petitioner failed to examine the Doctor who issued the same.
Then also the Tribunal was generous enough to fix 10% disability and the same
cannot be enhanced. I do agree with the submission of the learned counsel for the
insurance company. In this connection I would like to observe that proof of a
document as mandated by the procedure is by examining its author. The rationale
is providing opportunity to the other side to extract matters regarding the genesis
and genuineness of the document sought to be proved. When such an opportunity
is denied to the other side, such documents cannot be accepted as such, if the
same was opposed. Here the issue involved is fixation of compensation under
Motor Vehicles Act, a social welfare legislation. Taking note of this fact, general-
ly the Tribunal would accept disability certificate produced even without exam-
ining its author/authors and fix disability on the basis of the injuries sustained
and verifying the physical condition of the injured. Going through the disability
certificate and the nature of the injuries viz. communited fracture to shaft of
right humerus and radius, it can be seen that the disability assessed as 15% was
not proved. I fully agree with the Tribunal in the matter. Therefore, I am not in-
clined to refix the disability income on the basis of the disability fixed by
the Tribunal as 10%.
7. In view of the increase given in relation to the monthly income as
Rs.7,000/- instead of Rs.5,000/-, the disability income is liable to be increased as:
7000X12X18X10/100 = Rs.1,51,200/-. So the disability amount would be
Rs.1,51,200/-. Thus out of Rs.1,51,200/- the remaining amount (Rs.1,51,200/-
minus Rs.1,08,000/-) Rs.43,200/- is granted as additional disability income.
8. The compensation granted by the Tribunal under the head `pain and
suffering' also is challenged by the appellant/petitioner on the ground that the pe-
titioner suffered comminuted fracture to the shaft of right humerus and on the
lower end radius. Ext.A6 discharge summary would substantiate the same. Con-
sidering the injuries and treatment, I am inclined to increase compensation grant-
ed under the head `pain and suffering' from R.15,000/- to Rs.25,000/-. It is sub-
mitted by the learned counsel for the petitioner further that nothing under the
head loss of marriage prospects, disfiguration etc. were granted by the Tribunal.
Going by the award and the available materials, no evidence in this regard
was adduced before the Tribunal. However, the Tribunal was inclined to grant
Rs.16,000/- under the head `loss of studies'. In view of the matter, the claim
under these heads cannot be considered.
9. Therefore, the petitioner is entitled to a further amount of Rs.53,200/-
(Rupees Fifty three thousand and two hundred only) as compensation as shown
below in addition to the amounts already awarded by the Tribunal under the im-
pugned award.
i) Permanent disability : Rs.43,200.00
(7000X12X18X10 minus 5000X12X18X10%)
ii) Pain and suffering : Rs.10,000.00
(15,000 minus 5,000)
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Total : Rs.53,200.00
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Since this appeal was filed with delay petition, an interim order was passed on
07.11.2017 holding that the appellant/petitioner is not entitled for any interest for
the period of delay of 222 days for filing the appeal. Hence, the
appellant/petitioner is not entitled for any interest for the period of delay of
222 days. The 2nd respondent shall deposit the entire amount of compensation
with 9% interest from the date of the petition till the date of deposit or realisation,
excluding the period of 222 days, within a period of two months. All other direc-
tions of the Tribunal are upheld.
Sd/-
(A.BADHARUDEEN, JUDGE)
rtr/
