Kerala High Court
Shahina Khanam vs Riyz Khan 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. 2785 OF 2012
AGAINST THE AWARD DATED 10.03.2011 IN OPMV 2514/2006 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM
APPELLANT/PETITIONER:
SHAHINA KHANAM,
D/O.ISMAIL KHAN, AGED 44 YEARS, 35/2825,
PALLATH ROAD, THAMMANAM P.O., KOCHI - 682 032 AND
NOW RESIDING AT SHAPLAZA, SHAH COLONY, NEAR
HANUMANMANDIR, GOVINDAPURA, AHAMMED NAGAR, PIN -
490041.
BY ADVS.
SRI.C.ARUN PRASANTH
SRI.A.S.BRIJESH
SMT.ROOPA RAMACHANDRAN
RESPONDENTS/RESPONDENTS 1 TO 3:
1 RIYAZ KHAN,
DISTRICT SALES MANAGER,
MODI-MUNDI PHARMA LIMITED,
REGIONAL OFFICE, K.N.MATHEW BUILDING,
MARKET ROAD,KOCHI - 11.
2 NATIONAL INSURANCE COMPANY LIMITED,
DIVISION NO.10, FLAT NO.101-106, N-1, B.M.C.HOUSE,
CONNANGHAT PLACE, NEW DELHI 110001 HAVING ITS
REGIONAL OFFICE AT MUTHOOT TOWERS, M.G.ROAD, KOCHI
- 35.
3 NATIONAL INSURANCE COMPANY LIMITED,
THIRD PARTY CELL, NEAR ANDHRA BANK,
JOSE JUNCTION, KOCHI-682 035.
BY ADV RAJI T.BHASKAR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 07.06.2022, THE COURT ON 14.06.2022 DELIVERED THE
FOLLOWING:
M.A.C.A.No.2785/2012 2
A. BADHARUDEEN, J.
================================
M.A.C.A.No.2785 of 2012
================================
Dated this the 14th day of June, 2022
JUDGMENT
This is an appeal filed under Section 173 of the Motor
Vehicles Act, 1988 challenging award dated 10.03.2011 in
O.P(MV).No.2514/2006 on the file of the Motor Accidents Claims
Tribunal, Ernakulam. The appellant is the petitioner before the
Tribunal. The respondents are respondents 1 to 3 before the
Tribunal.
2. Heard the learned counsel for the appellant as well as
the respondents.
3. Summary of the petition averments:
The appellant herein, who sustained injuries in a motor
accident occurred on 01.06.2006 while travelling in a car bearing
Reg.No.KL-7/AP 8696, had preferred claim under Section 166 of
the Motor Vehicles Act before the Tribunal for Rs.3,53,300/-. The
appellant alleged negligence on the part of the 1st respondent, who
was driving the above car.
4. The 1st respondent was set exparte before the Tribunal.
Respondents 2 and 3, the respective insurers contested the matter
by filing written statement. The 2nd respondent admitted the policy
to the car bearing Reg.No.KL-7/AP 8696 and disputed quantum of
compensation under various heads.
5. The Tribunal jointly tried this case along with 3 other
connected cases. Exts.A1 to A19 were marked on the side of the
petitioner. Ext.B1 was marked on the side of the respondents.
6. Finally, the Tribunal granted Rs.1,23,572/- along with
interest @ 8% per annum from the date of petition till realisation.
7. While assailing the award, the learned counsel for the
appellant would submit that though the appellant claimed
Rs.7,000/- as her monthly income as a private tuition teacher, the
Tribunal fixed the same at Rs.3,000/- only. Though the learned
counsel for the appellant failed to substantiate evidence to prove
the income of the appellant at Rs.7,000/-, he conceded that
following the ratio in [(2011) 13 SCC 236] Ramachandrappa v.
Manager, Royal Sundaram Alliance Insurance Company Ltd.,
Rs.5,500/- is liable to be fixed in this matter. This contention is not
opposed by the learned counsel for the insurer. It is argued by the
learned counsel for the appellant further that though Ext.A11
disability certificate showing 15% disability issued by a dental
consultant was produced before the Tribunal, the Tribunal not
accepted the same and a sum of Rs.10,000/- was granted as a
consolidated sum under the head `disability income'. According to
the learned counsel for the appellant, 15% disability as per Ext.A11
should have been considered by the Tribunal.
8. Per contra, the learned counsel for the insurer
vehemently opposed Ext.A11 on the ground that it was not issued
by a competent doctor and the author of Ext.A11 is a dental
consultant and the appellant failed to examine him to prove the
same.
9. I have perused Exts.A6 and A7 wound certificates and
Exts.A8 and A9 discharge summaries along with Ext.A10 treatment
certificate. Bilateral communited fracture maxilla and fracture of
naso ethmoidal complex, bleeding from mouth, contusion on the
face, haemorrhage on left eye were the major injuries diagonised
and treated. Thus it appears that a competent person to issue a
disability certificate to the appellant, may be a Neurologist or an
ENT specialist, who had treated the petitioner for the above
infirmities. In view of the matter, I am not inclined to revisit the
finding of the Tribunal negativing Ext.A11. Therefore, I am of the
view that Rs.10,000/- granted by the Tribunal under the head
`disability income' as a consolidated sum need not be interfered
with.
10. As I have already pointed out, 2 months' income @
Rs.3,000/- was granted by the Tribunal. Considering the injuries
and treatment thereof, I am inclined to grant loss of earnings for a
period of 3 months @ Rs.5,500/-. Thus the amount would come to
Rs.16,500/-. Reducing Rs.6,000/- granted by the Tribunal, the
appellant is entitled to get Rs.10,500/- more under the head loss of
earnings. The Tribunal granted Rs.25,000/- under the head `pain
and suffering'. Considering the injuries and treatment as already
discussed, I am inclined to grant Rs.5,000/- more under the head
pain and suffering. Similarly, the Tribunal granted Rs.15,000/-
under the head loss of amenities and enjoyment of life. Having
appraised the evidence available, I am inclined to grant Rs.10,000/-
more under the head `loss of amenities'.
In the result, the appeal is allowed in part. It is ordered that
the appellant is entitled to get enhanced compensation to the tune
of Rs.25,500/- (Rupees Twenty five thousand five hundred only)
with interest at the rate of 8% per annum from the date of petition
till the date of deposit or realisation, excluding the period of 503
days wherein, grant of interest was specifically disallowed by the
order in C.M.Application No.1/2012 dated 01.12.2021.
Sd/-
(A. BADHARUDEEN, JUDGE)
rtr/
