Philomina vs K. Baiju, S/O.Kesavan
2021 Latest Caselaw 23390 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA,
                             1943
                   MACA NO. 45 OF 2013
AGAINST THE AWARD IN OP(MV) 1505/2007 OF MOTOR ACCIDENTS
               CLAIMS TRIBUNAL, ALAPPUZHA
APPELLANT/PETITIONER   :

         PHILOMINA,
         AGED 53 YEARS, W/O.THOMAS,
         NADUVILA VEETTIL, WARD NO.12,
         MANNANCHERRY PANCHAYATH,
         MANNANCHERRY PO, ALAPPUZHA.
         BY ADV SRI.B.PRAMOD

RESPONDENTS/RESPONDENTS :

    1    K. BAIJU, S/O.KESAVAN,
         KIZHAKKEOLAKKAD, WARD NO.X,
         THANNERMUKKAM PANCHAYATH,
         KARIKKAD P.O., CHERTHALA-688 014
    2    JAYARAJ, S/O.JAGADEESAN,
         PALLAPARAMBU VELI, WARD NO.14,
         MARARIKKULAM NORTH PANCHAYATH,
         MARARIKKULAM NORTH P.O.,
         ALAPPUZHA-688014
    3    THE UNITED INDIA INSURANCE CO. LTD.,
         CHERTHALA PO, ALAPPUZHA-688 014


         BY SRI.JOHN JOSEPH VETTIKAD, STANDING COUNSEL

         THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 25.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 M.A.C.A.No.45 of 2013                   ..2..




                        M.A.C.A.No.45 of 2013
           -------------------------------------------------------


                            JUDGMENT

One Philomina, who alleged to have sustained

injuries in a motor accident occurred on 26.07.2007 at 3.30

p.m., approached the Tribunal and claimed compensation

under Section 166 of the Motor Vehicles Act on the allegation

that she sustained injuries in the accident caused by rash and

negligent driving of the second respondent, who had driven

motorcycle bearing registration No.KL-4/G-6589.

2. The said petition was numbered as O.P.

(MV)No.1505 of 2007 on the file of the Motor Accidents Claims

Tribunal, Alappuzha. On issuing of notice, the third respondent

filed written statement admitting policy to the vehicle while

disputing negligence and quantum of compensation. The

Tribunal ventured the matter after examining PW1 and PW2

and marking Exts.A1 to A18 on the side of the M.A.C.A.No.45 of 2013 ..3..

petitioner/appellant. No evidence adduced by the respondents.

Finally, the Tribunal granted Rs.96,760/- as compensation as

against the claim of Rs.2,30,000/-.

3. The learned counsel for the appellant would

submit that the Tribunal not granted compensation for the

disability, as per Ext.A1, disability certificate and a

consolidated sum of Rs.25,000/- was granted under the head

loss of disability income. According to the learned counsel, as

per Ext.A1, 15% whole body disability was assessed and

doctor, who issued Ext.A1, was examined as PW1 to prove the

same.

4. No representation for the insurance company.

5. Perusal of the award would go to show that

though the Tribunal discussed Ext.A1 and the evidence of PW1

pertaining to the disability, the Tribunal not exactly fixed the

percentage of disability. Instead of doing so, the Tribunal held

that the petitioner is entitled to get compensation under the

heads functional disability and loss of amenities. Thereafter, M.A.C.A.No.45 of 2013 ..4..

Rs.25,000/- was granted under the head loss of disability and

Rs.10,000/- under the head loss of amenities. The award does

not depict the percentage of disability or the way in which,

Rs.25,000/- was arrived at.

6. Going by Ext.A8, the first discharge card

issued from the Medical College Hospital, Alappuzha, the

petitioner, who sustained injuries, was admitted on 27.7.2007

and discharged on 28.7.2007 after observing only "soft tissue

injuries". However, after 5 days, she was admitted in the

Neurosurgery Department, Medical College Hospital,

Alappuzha and Atlantoaxial subluxation was diagnosed and

was treated as inpatient till 26.09.2007. Subsequently also,

she was admitted on 09.10.2007 and discharged on

01.12.2007 as per Ext.A10. Though the Atlantoaxial

dislocation found during CT Scan examination on 02.08.2007,

not legibly stated as the consequence of accident the

immediate admission of the appellant on fifth day is a relevant

factor to find nexus between the accident and the injuries.

M.A.C.A.No.45 of 2013 ..5..

Coming to disability, the doctor assessed 15% disability and he

had given evidence in this regard and the said evidence not

shaken at all. Thus, going by the evidence, I am of the view

that 15% disability can be considered in this case and the

disability income can be calculated by accepting Rs.3,000/- as

the monthly income as claimed by the appellant in the original

petition. Thus, loss of disability income is calculated as under;

3,000x12x13x15%=70,200/-

70,200-25,000=45,200/-

7. The Tribunal granted pain and sufferings to the

tune of Rs.15,000/-. It could gathered from the petitioner

underwent prolonged treatment. Therefore, Rs.15,000/- more

can be granted under the head pain and sufferings. The award

would go to show that Rs.10,000/- was granted by the Tribunal

under the head loss of amenities. Therefore, Rs.5,000/- more is

granted this head.

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

ordered that the appellant is entitled to get enhanced M.A.C.A.No.45 of 2013 ..6..

compensation to the tune of Rs.65,200/-(Rupees Sixty Five

Thousand Two Hundred only) at the rate of 7.5% 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 appellant within two months from

today and on deposit, the appellant is at liberty to to release

the same.

Sd/-

A.BADHARUDEEN, JUDGE rkj