Kerala High Court
Rajesh K.B vs Vineesh V on 6 July, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
MACA NO. 697 OF 2012
AGAINST THE COMMON AWARD DATED 06.01.2010 IN
OP(MV)NO.678/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,
OTTAPPALAM
APPELLANT/PETITIONER :
RAJESH K.B.,
S/O. BABU,
KURUMBIPARAMBIL HOUSE,
CHERUSSERY,
P.O. THAIKKATTUSSERY, THRISSUR.
BY ADV SRI.SHEJI P.ABRAHAM
RESPONDENTS/RESPONDENTS :
1 VINEESH V.R.,
S/O.RAMAKRISHNAN,
VADAKKOOTTU HOUSE,
VELLANIKKARA OLLUKKARA VILLAGE,
THRISSUR, PIN-680512.
2 UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE, PARK HOUSE,
ROUND NORTH, THRISSUR, PIN-680601,
POLICY NO.100600/31/03245
VALID FROM 01-6-2005 TO 31-5-2006.
R2 BY SRI.JOHN JOSEPH VETTIKAD
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 06.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
MACA No.697 of 2012
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MACA No.697 of 2012
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JUDGMENT
The appellant herein is the petitioner in O.P.
(MV)No.678 of 2006 on the file of the Motor Accident
Claims Tribunal, Ottapalam. Respondents herein are the
respondents before the Tribunal.
2. Heard the learned counsel for the
appellant as well as the learned Standing Counsel
appearing for the insurance company.
3. Brief facts of the case are as follows;
The allegation of the appellant is that on
30.04.2006 at about 10.30 a.m., while the appellant
was travelling as a pillion in a motorcycle bearing
MACA No.697 of 2012
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Registration No.KL 8 AF 8345 through Ollur-
Poochunnipadam road, a car bearing Registration No. KL
8 J 2993 driven by the first respondent in a rash and
negligent manner, hit against the motorcycle and the
appellant sustained severe injuries.
4. R2, the insurance company filed written
statement disputing the accident and negligence, while
admitting policy. Quantum also was disputed.
5. The Tribunal granted Rs.87,400/- as
against claim of Rs.2,25,000/-in this case along with
interest at the rate of 8% acting on the oral evidence of
PW1, the petitioner and Exts.A1 to A10 marked, while
considering three cases together.
6. The appellant initially claimed
Rs.1,00,000/- as compensation and subsequently, the
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petition got amended and the claim was enhanced to
Rs.2,25,000/-. According to the learned counsel for the
appellant, though the appellant claimed his income at
Rs.5,000/- being gold worker aged 23 years at the time
of accident, the Tribunal fixed the monthly income at
Rs.2,500/-. Therefore, the learned counsel pressed for
granting Rs.5,000/- as such for re-calculating loss of
earnings as well as disability income. This argument is
not seriously opposed in view of the ratio in [(2011) 13
SCC 236], Ramachandrappa v. Manager, Royal
Sundaram Alliance Insurance Company Ltd.
Therefore, I re-fix the monthly income at Rs.5,000/- per
month.
7. The next challenge is regarding the
percentage of disability accepted by the Tribunal. It is
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submitted by the learned counsel for the appellant that
though as per Ext.A5 disability certificate dated
30.08.2008, Dr.Jacob P.J. assessed the whole body
disability of the appellant as 8%, the Tribunal reduced
the same to 3% on the ground that the doctor was not
examined to prove the actual percentage of disability in
tune with Ext.A5.
8. It is submitted by the learned counsel for
the appellant that 4 cm of shortening in right leg with
fracture led to malunion of right femur are the
observations stated in Ext.A5. Therefore, the disability
as such is liable to be accepted.
9. The learned counsel for the insurance
company resisted this contention on the ground that the
doctor who assessed the disability was not examined by
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the Tribunal to prove the same as such. Therefore, the
same cannot be accepted and no further increase liable
to be made.
10. I have perused the treatment records of
the appellant produced as Ext.A10(three in numbers).
The discharge summary forming part of Ext.A10 would
go to show that the appellant was treated as inpatient
for a period of 17 days from 30.04.2006 to 16.05.2006
on the diagnosis that supra condylar comminuted
fracture right femur. Open Reduction and Internal
Fixation(ORIF)-Dynamic Condylar Screw(DCS) are the
treatment shown in the discharge summary. Again, he
was admitted and treated as per another discharge
summary. Subsequently, also he was treated for a
period of 5 days from 05.02.2008 to 10.02.2008 and it
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was observed that fracture united and DCS insitu.
Though the treatment records do not suggest any
malunion or shortening, as per Ext.A5, the doctor
certified that there was shortening and malunion. This
is the reason why the Tribunal reduced the disability to
3%. Since the treatment records do not justify any
shortening or malunion, 8% disability as per Ext.A5
cannot be accepted. Having noticed the nature of
injuries, implant fixation etc., I am inclined to re-fix the
disability at 5% as against the disability fixed by the
Tribunal.
11. In this matter, the Tribunal granted loss of
earnings for a period of three months at the rate of
Rs.2,500/- per month, considering the above injuries
and treatment. I am inclined to grant loss of earnings
MACA No.697 of 2012
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for a period of four months at the rate of Rs.5,000/-.
Therefore, the loss of earnings is re-calculated as under;
5,000x4=20,000/-
Out of which, Rs.7,500/- was granted by the
Tribunal. Rs.20,000-Rs.7,500=12,500/- more is
granted under the head loss of earnings.
12. In this case, the age of the appellant is
23 years at the time of accident. In fact, no conclusive
evidence in this regard is available. However, age of the
appellant is not seriously opposed. In view of the
matter, the disability income also requires re-calculation
by fixing the proper multiplier as '18' as against '17'
fixed by the Tribunal, since the appellant is a person in
the age group between 21 to 25. Thus, the loss of
disability income is re-calculated as under;
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5,000x12x18x5%=54,000/-
Out of which, Rs.15,300/-was granted by the
Tribunal. Rs.54,000-15,300=Rs.38,700/- more is
granted under the head loss of disability income.
13. The learned counsel for the appellant
canvassed increase under other heads also in view of
the above injuries and treatment.
14. Towards pain and sufferings, the Tribunal
granted Rs.15,000/-. Therefore, Rs.7,000/- more is
granted under the head pain and sufferings. Towards
loss of amenities, the Tribunal granted Rs.8,000/-.
Therefore, Rs.7,000/- more is granted under the head
loss of amenities.
15. In this case, finding absence of driving
license on failure to produce the same by specific
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direction, the Tribunal granted recovery right in favour
of the second respondent, the insurer of the vehicle
from the first respondent, the owner of the vehicle, after
depositing the same in the name of the appellant. Since
the finding could not be altered for want of evidence,
the recovery right is liable to be granted insofar as the
enhanced compensation also.
In the result, this appeal is allowed. It is
ordered that the appellant is entitled to get enhanced
compensation to the tune of Rs.65,200/-(Rupees Sixty
Five Thousand Two Hundred only) at the rate of 8%
interest granted by the Tribunal from the date of petition
till the date of deposit or realisation excluding the period
of 714 days wherein, grant of interest was specifically
disallowed by the order in C.M.Application No.1 of 2012
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dated 27.05.2022. The insurance company is directed to
deposit the same in the name of the appellant within
two months from today. On deposit, the appellant can
release the same.
The second respondent/the insurer shall
recover the enhanced compensation along with the
interest thereof from the first respondent, the owner of
the vehicle, on depositing the same in the name of the
appellant as directed.
Sd/-
A.BADHARUDEEN, JUDGE
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