Kerala High Court
Ashraf vs Managing Director on 14 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 14TH DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943
MACA NO. 3583 OF 2019
AGAINST THE AWARD IN OP(MV) 1463/2017 DATED 16-01-2019 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE.
APPELLANT/PETITIONER :
ASHRAF, S/O. KUNHAMMED, AGED 54 YEARS,
PADINHARE MAKKANARI, KADALOOR P.O., MOODADI,
KATALUR, KOZHIKODE-673529.
BY ADV ZUBAIR PULIKKOOL
RESPONDENT/RESPONDENTS :
1 MANAGING DIRECTOR,KSRTC, TRANSPORT BHAVAN,
FORT, THIRUVANANTHAPURAM-695 023.
2 SANTHOSH KUMAR K.,
S/O. BALAN NAIR, AGED 52 YEARS, KODAPURATH HOUSE,
PALATH P.O., KOZHIKODE, PIN-673611.
3 THE NEW INDIA ASSURANCE CO. LIMITED,
TRIVANDRUM DO, IIND FLOOR, REMA PLAZA, MARAYYAPPAN
COIL, SS COIL ROAD, THAMPANOOR, TRIVANDRUM-695014.
R1 BY ADV.SRI.P.C.CHACKO, SC, KERALA STATE ROAD
TRANSPORT CORPN.
R3 BY SRI.VIJU THOMAS, SC, NEW INDIA ASSURANCE
COMPANY LTD.
SMT.M.MEENA JOHN
SMT.MIKHIYA ANNA VIJU
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 14.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA No.3583 of 2019 2
A.BADHARUDEEN, J.
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MACA No.3583 of 2019
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Dated this the 14th day of September, 2021
JUDGMENT
The original petitioner, who is dissatisfied with the award passed
by the Motor Accidents Claims Tribunal, Kozhikode in OP(MV) No.1463
of 2017 dated 16-01-2019 is in appeal before this Court. The
respondents 1 to 3 before the Tribunal are arrayed as respondents 1 to 3
herein.
2. Parties in this appeal will be referred to as to their status
before the Tribunal for brevity and convenience.
3. Short facts :
The petitioner, who met with an accident on 9-3-2017 at about
2.30 p.m., while riding his motor cycle bearing registration No.KL-56-
H-7170 from Koyilandy to Kozhikode would allege that he was hit down
by a KSRTC bus bearing registration No.KL-15-9947 driven by the
second respondent in a rash and negligent manner. Since the petitioner
sustained serious injuries, he claimed Rs.8 Lakh as compensation under
various heads.
4. Third respondent insurance company filed written
statement admitting the insurance policy and disputing liability.
Negligence also was disputed.
5. The first respondent KSRTC also disputed the accident and
negligence, but policy with the third respondent is highlighted.
6. The Tribunal marked Exts.A1 to A12 on the side of the
petitioner and finally granted Rs.1,77,000/- as compensation as against
the claim of Rs.8 Lakh.
7. The learned counsel for the petitioner submitted that the
monthly income fixed by the Tribunal as Rs.15,000/- is totally
insufficient. According to the learned counsel, the petitioner claimed
Rs.1000/- per day as his income from a stationary wholesale business.
It is submitted further that Ext.A10, copy of license issued by the
Koyilandy Municipality to the petitioner and another partner to conduct
stationary business under the name and style 'J.K.Agencies' and
Ext.A11, the copy of partnership deed itself were produced to
substantiate running of a stationary business by the petitioner.
According to the learned counsel, the Tribunal fixed only Rs.15,000/-
ignoring the above documents.
8. Per contra, the learned counsel for the insurance company
would submit that no substantial evidence adduced to prove the income
at the rate of Rs.1000/- per day, even no oral evidence was adduced.
Thus the income fixed by the Tribunal does not require any interference
in any manner.
9. While addressing this point, it is relevant to note that as per
Exts.A10 and A11, issuance of license to run 'J.K Agencies' stationery
business and execution of a partnership deed for doing so alone could
be gathered. As far as the monthly income of the petitioner is
concerned, there is absolutely no convincing evidence, either oral or
documentary. Having considered this fact, I cannot find fault with the
Tribunal in the matter of fixing Rs.15,000/- as the monthly income. So
this challenge is repelled.
10. It is submitted by the learned counsel for the petitioner
further that the Tribunal granted only Rs.15,000/- under the head `loss
of earnings' though the petitioner sustained serious head injury. Further
he submitted that under the head `pain and suffering' compensation
granted is only Rs.15,000/- and the same is also on the lower side,
considering the gravity of injury and the treatment underwent by the
petitioner.
11. Though the learned counsel for the insurance company
justified the award, it appears that the Tribunal has not granted just
compensation under these heads.
12. Here, as per Ext.A6 discharge summary issued from Baby
Memorial Hospital, Kozhikode, it is seen that the petitioner was treated
there from 9-3-2017. Ext.A7 C.T Scan report in relation to his head
would go to show that the petitioner sustained linear undisplaced
fracture left temporal bone with associated hemomastoid.
13. Thus it is established in evidence that the petitioner
sustained head injury in consequence of the accident. Apart from that as
per Ext.A8, the petitioner was subjected to endoscopy of both ear and
on 11-03-2007 blood clots were found during the examination. There
was observation regarding bilateral mild sensori neural hearing loss on
his left ear also. Going by the above infirmities, the petitioner is entitled
to get more amount under the head of `pain and suffering' as well as
`loss of earnings'. I am of the view that the petitioner is entitled to get
loss of earnings for four months at the rate of Rs.15,000/- per month.
As such, Rs.45,000/- more under the head of `loss of earnings' is
granted in excess of what has been awarded by the Tribunal. Similarly,
Rs.20,000/- more is granted under the head of `pain and suffering'
considering the nature of injuries and consequential treatment, as
already discussed.
14. The learned counsel for the petitioner submitted that the
disability should have been fixed something more than 6% as per
Ext.A12 disability certificate in view of the hearing loss as could be
gathered from Ext.A8. Though this submission appears to be convincing
at the first blush, the same could not be justified on evaluation of the
facts and evidence in this case. It is true that as per Ext.A8
Otendoscopy, neural hearing loss was initially observed. Ext.A12
disability certificate was dated 31-01-2018. If there was hearing loss, the
same must also found a place in the disability certificate. But nothing
stated in Ext.A12 as regards to hearing loss. This is the reason why the
Tribunal observed that there was no medical record to show that the
petitioner was suffering from continuing hearing loss even at the time of
filing claim petition. Infact the finding of the Tribunal in this regard
does not require any interference in view of the discussions and
therefore, the claim raised by the learned counsel for the petitioner to
refix the disability as against Ext.A12 cannot be sustained.
15. It is submitted by the learned counsel for the petitioner
further that no amount for future treatment was granted. But the
learned counsel failed to substantiate evidence to support claim for
future treatment. Ext.A9 is the O.P Sheet dated 9-2-2017. On perusal of
Ext.A9 consultation by an ENT is established. No more records
available to substantiate any further treatment. In view of Ext.A9,
Rs.5,000/- more can be granted for treatment rendered on 9-2-2017.
Under the head of loss of amenities, the Tribunal granted Rs.25,000/-
taking note of the head injury and treatment. The learned counsel
canvassed increase under this head also. Considering the factual matrix
of the case, I am inclined to award Rs.5,000/- more under this head noticing
the nature of injuries and consequential treatment. Thus the compensation
granted by the Tribunal is enhanced by Rs.75,000/- more.
Sl.No. Head of claim Amount Modified amount in
awarded (Rs.) Appeal (Rs.)
1 Loss of earning capacity 1,18,800/- 1,18,800/-
2 Pain and suffering 15,000/- 35,000/-
3 Loss and amenities and enjoyment in life 25,000/- 30,000/-
4 Loss of pay 15,000/- 60,000/-
(15,000/- X 4)
5 Transport to hospital 1,000/- 1,000/-
6 Extra nourishment 2,000/- 2,000/-
7 Future treatment - 5,000/-
Total 1,76,800/- 2,51,800/-
So the award is modified and a sum of Rs.2,51,800/- is granted.
16. In the result:
a) This M.A.C.A is allowed in part.
b) Modified award passed to the tune of Rs.2,51,800/-
(Rupees Two lakh fifty one thousand eight hundred only) to
be paid by the 3rd respondent jointly and severally with 8% interest
granted by the Tribunal and the amount shall be deposited by the
insurance company being the indemnifier of the insured.
c) The 3rd respondent is also directed to deposit
Rs.7,373/-/- (Rupees Seven thousand three hundred and seventy three
only) being the court fee payable in this case in favour of MACT,
Kozhikode within a period of two months from this date.
d) The 3rd respondent is directed to deposit the entire balance
amount of compensation in the name of the petitioner within a period
of two months from this date. On deposit, the petitioner is at liberty to
release the same forthwith.
e) Amount, if any, already deposited shall be adjusted.
Sd/-
A. BADHARUDEEN, JUDGE
amk
