Ponnu vs Arun Kumar
2021 Latest Caselaw 20008 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR. JUSTICE T.R.RAVI
     FRIDAY, THE 24TH DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943
                        MACA NO. 171 OF 2012
    AGAINST THE AWARD DATED 4.4.2011 IN OPMV 581/2008 OF MOTOR
          ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD


APPELLANT/PETITIONER:

          PONNU
          S/O.APPAYI, RESIDING AT ELAKKODE HOUSE,
          P.O.MUDAPPALLUR, ELAKKODE,
          ALATHUR TALUK, PALAKKAD DISTRICT.
          BY ADVS.
          SRI.T.C.SURESH MENON
          SRI.P.S.APPU
          SRI.A.R.NIMOD


RESPONDENTS/RESPONDENTS:

    1     ARUN KUMAR
          S/O.CHANDRAN, RESIDING AT VAYYALI HOUSE,
          VANDAZHI P.O., ALATHUR, PALAKKAD-678706.
    2     JOSE @ JACOB C.A.
          S/O.ANTONY, RESIDING AT CHIRAMMAL HOUSE,
          P.O.THRIKKUR, THRISSUR-680314.
    3     THE UNITED INDIA INSURANCE COMPANY LIMITED
          G.B.ROAD, PALAKKAD-678001.
    4     SURESH KUMAR, SO.SUNDARAN
          RESIDING AT 'KAMALALAYAM',
          P.O.PULLODE, PALAKKAD-678545.
          BY ADV SRI.PMM.NAJEEB KHAN, FOR R3
          SRI.JOHN JOSEPH VETTIKKAD
     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 21.09.2021, THE COURT ON 24.09.2021 DELIVERED
THE FOLLOWING:
 MACA No. 171 0F 2012
                                   2




                              T.R.RAVI, J.
                  --------------------------------------
                      M.A.C.A.No. 171 of 2012
             -----------------------------------------------
              Dated this the 24th day of September, 2021

                             JUDGMENT

The appellant, who claimed to be an agriculturist and a dairy

farmer, earning Rs.5,000/- as monthly income, while standing on the

side of a public road, was hit by a motorcycle driven in a rash and

negligent manner by the 2nd respondent, causing injuries to him.

The appellant was aged 55 years at the time of the accident. He

suffered fracture of the right temporal bone, fracture of tibia & fibula

of right leg, fracture of right clavicle and head injury. He preferred a

claim for an amount of Rs.3,50,000/- as compensation and the

Tribunal awarded a sum of Rs.81,750/-. The appeal is filed claiming

enhancement of the compensation awarded by the Tribunal.

2. Heard Sri.Nimod A.R. on behalf of the appellant and

Smt.Zahira on behalf of the insurer.

3. The contentions raised by the counsel for the appellant

are two-fold. Firstly, it is contended that the Tribunal went wrong in

fixing the notional income of the appellant at Rs.2,500/-. The second MACA No. 171 0F 2012

contention is that the Tribunal went wrong in not granting any

amount towards permanent disability, for the sole reason that the

Doctor, who issued Ext.A7 disability certificate, was not examined.

The counsel submits that by the time the case was taken for trial,

the Doctor was no more and hence the appellant was not in a

position to prove the document. On the question of notional income,

the counsel relied on the decision in Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance Co.Ltd., reported

in [AIR 2011 SC 2951]. On the question of non examination of the

Doctor, the counsel relied on the judgment of a Division Bench of this

Court in Saramma Scaria v. Mathai, reported in [2002 (2) KLT

404], wherein it was held that the Tribunal can rely on medical

reports issued by Doctors which are not objected to by the other side

and in doubtful cases, the Tribunal can summon the Doctor. The

counsel fairly submits that one of the findings rendered in the above

case, that the Tribunal did not have jurisdiction to dismiss an

application for default/non-prosecution after framing of issues, was

referred to a Full Bench and the Full Bench of this Court in the

decision in Jacob Thomas v. Pandian, reported in [2005 (4) KLT

545 (FB)], overruled the said proposition. The counsel relied on the MACA No. 171 0F 2012

decision of a Full Bench of this Court in Akhil v. KSRTC reported in

[2015 (1) KLT 291] wherein this Court has held that the Tribunal

has discretion to decide whether a claimant who has put forward a

claim of permanent disability should be examined by a Medical Board

or not or whether the claimant should be directed to be present in

Court in person and can also direct personal appearance even after

examination by a Medical Board or Medical Officer, if it is necessary

to arrive at a just decision. It is submitted that it is not a case of

total want of evidence since the claimant was examined as PW1

before the Tribunal and he has given oral evidence regarding his

injuries. I find considerable force in the submissions of the counsel

for the appellant.

4. The counsel for the insurer fairly submitted that the

notional income can be fixed at Rs.6,000/- going by the judgment in

Ramachandrappa (supra). It is also contended that the Tribunal

cannot be faulted for not relying in the disability certificate since the

Doctor who issued the same was not examined.

5. I have considered the contentions raised by the counsel

on either side. On the question of notional income, I am of the

opinion that in the light of the decision in Ramachandrappa MACA No. 171 0F 2012

(supra), a sum of Rs.6,000/- should be taken as the notional

income of the claimant. Regarding Ext.A7 disability certificate, it was

issued by a Doctor who was an Orthopedic Consultant, who had

retired as a Civil Surgeon Grade I from Government service. There is

no reason to discard the said evidence merely for the fact that the

Doctor was not examined. The certificate states in detail the injuries

sustained by the claimant and has assessed the whole body disability

as per McBride scale as 12.12 %. The claimant as PW1 has stated in

detail about the injuries and the difficulties that he was still suffering

and there is no challenge to the said evidence in cross examination.

In the above circumstances, I am of the opinion that the appellant is

entitled to be compensated for his permanent disability as well.

In the result, the appeal is allowed. The amount awarded

towards loss of earning is enhanced from Rs.10,000/- to Rs.24,000/-

(6000x4), resulting an additional compensation of Rs.14,000/-

(24,000-10,000). A sum of Rs.95,990/- (6000x12x11x12.12%) is

awarded under the head compensation for permanent disability. The

compensation granted by the Tribunal is thus enhanced by a further

sum of Rs.1,09,990/- (Rupees One lakh Nine Thousand Nine

Hundred and Ninety only) with interest at 9% per annum on the MACA No. 171 0F 2012

enhanced compensation from 02.06.2008 till the date of realisation,

with proportionate costs. The 3rd respondent shall deposit the

additional compensation granted in this appeal along with the

interest and proportionate costs, before the Tribunal within two

months from the date of receipt of a certified copy of this judgment,

after deducting any amount to which the appellant is liable towards

balance court fee and legal benefit fund. The disbursement of the

compensation to the appellant shall be in accordance with law.

Sd/-

T.R. RAVI, JUDGE dsn