Kerala High Court
Assain vs Ahammed Kabeer on 14 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
MACA NO. 2661 OF 2014
AGAINST THE AWARD DATED 28.01.2014 IN OPMV 307/2013 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT/PETITIONER:
ASSAIN,
AGED 52 YEARS,
S/O.IBRAHIM, KALPALLI HOUSE,
OMASSERY P.O, KODUVALLY(VIA),KOZHIKODE.
BY ADVS.
SRI.R.SUDHISH
SMT.M.MANJU
RESPONDENTS/RESPONDENTS:
1 AHAMMED KABEER
S/O.USSAIN V.K, VELLARAMKALLIL HOUSE,
VAVAD.P.O, KODUVALLY VIA, KOZHIKODE-673572.
2 NATIONAL INSURANCE COMPANY LIMITED
NOOR COMPLEX, ARAYADATHUPALAM, MAVOOR
ROAD,KOZHIKODE-673661.
BY ADVS.
SMT.DEEPA GEORGE
SRI.M.A.GEORGE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 08.06.2022, THE COURT ON 14.06.2022 DELIVERED THE
FOLLOWING:
M.A.C.A.No.2661/2014 2
A. BADHARUDEEN, J.
================================
M.A.C.A.No.2661 of 2014
================================
Dated this the 14th day of June, 2022
JUDGMENT
The appellant is the petitioner in O.P(MV).No.307/2013 on
the file of the Motor Accidents Tribunal, Kozhikode and he assails
award dated 28.01.2014 in the above case, highlighting inadequacy.
The respondent herein are the respondents before the Tribunal.
2. In this matter, the appellant, who met with an accident
on 15.11.2012 at 4.30 pm while riding his motorcycle, was alleged
to be hit down by another motorcycle driven by the 1 st respondent.
The 2nd respondent is the insurer of the 1st respondent.
3. The 2nd respondent filed written statement and opposed
the claims under various heads, while opposing policy.
4. The Tribunal examined PWs 1 and 2 and marked
Exts.A1 to A13 on the side of the appellant. No document marked
on the side of the respondents. Finally the Tribunal granted
Rs.1,01,000/- as compensation with 8% interest.
5. While canvassing increase under various heads, it is
submitted by the learned counsel for the appellant that the appellant
was a permanent employee of Malabar Cements, Palakkad,
working as Electrician cum Lineman. According to the learned
counsel for the appellant, Rs.12,490/- claimed under Ext.A14 series
medical bills is to be granted. It is urged that the Tribunal wrongly
fixed Rs.3,500/- as the monthly income for fixing disability
income, by applying multiplier 9 for calculating post retirement
disability income. According to the learned counsel, though the
appellant is not disputing fixation of disability after fixing 9 as the
multiplier, considering the loss of income during the period of post
retirement, the monthly income fixed by the Tribunal at Rs.3,500/-
and the functional disability fixed at 5% are strongly opposed with
prayer to revisit the same.
6. It is argued further that as per Ext.A1 disability
certificate issued by PW1, 20% disability was assessed. However,
the Tribunal reduced the same to 5% functional disability.
7. Opposing the increase in the monthly income as well as
the percentage of disability fixed at 5%, the learned counsel for the
insurance company would urge that reasonable compensation was
granted by the Tribunal and the enhancement sought for is on
higher side.
8. In this case, admittedly, the appellant was a permanent
employee of Malabar Cements. No documents produced to show
that he lost any income on account of the injuries or his promotion,
etc. Ext.A6 is the copy of discharge summary issued from Santhi
Hospital, Omassery. Type I compound fracture both bones left leg
is the serious fracture noted in so far as the appellant is concerned.
It is true that Type II compound fracture P1 left great toe, Type II
compound fracture 5th metatarsal shaft and Type II compound
fracture P2 left ring finger were also diagonised and treated. Nail
fixation done on left leg. As per Ext.A1, Dr.Abdul Jaleel,
Orthopaedic Surgeon of Santhi Hospital issued a certificate stating
that the appellant sustained 20% permanent disability. Doctor got
examined as PW1 to prove the same. During examination, PW1
supported Ext.A1. But during cross examination, PW1 given
evidence that there was no malunion or non-union of bowel but it
was a case of delayed union of the bowel. Thus it appears that 20%
permanent disability on the left lower limb assessed as per Ext.A1
is not fully established. Though the Tribunal lowered the same to
5%, considering the nature of fracture and the treatment thereof, I
am of the view that the disability can be fixed at 10%, instead of
5% fixed by the Tribunal. Following the principles in [(2011) 13
SCC 236], Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Company Ltd. the income taken for calculating
post-retirement disability income can be increased to Rs.8,500/-,
since the accident is of the year 2012. Therefore, apart from
granting Rs.12,490/- under the head medical expenses acting on
Ext.A14 series, the amount spent during the period of admission
for implant removal, I am inclined to recalculate the disability
income of the appellant as under:
8,500 X 12 X 9 X 10/100 = Rs.91,800/-, out of which
Rs.18,900/- was granted by the Tribunal. Hence, the balance
amount to the tune of Rs.72,900/- more is granted under the head
`loss of future earning power'. It appears that in all other heads,
the Tribunal granted reasonable compensation. Therefore, I am not
inclined to increase any amount under other heads.
In the result, this appeal is allowed. It is ordered that the
appellant is entitled to get enhanced compensation to the tune of
Rs.85,390/- (Rupees Eighty five thousand three hundred ninety
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 87 days wherein, grant of interest was specifically
disallowed by the order in C.M.Application No.3072 of 2014
dated 18.01.2022. 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.
Sd/-
(A. BADHARUDEEN, JUDGE)
rtr/
