Kerala High Court
Balakrishnan vs Hassan P on 28 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 28TH DAY OF JUNE 2022 / 7TH ASHADHA, 1944
MACA NO. 217 OF 2014
AGAINST THE AWARD IN OPMV 1314/2008 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL, KOZHIKODE
APPELLANT/PETITIONER:
BALAKRISHNAN
AGED 52 YEARS
S/O.KORAPPAN, RESIDING AT PARAMMAL HOUSE,
KARUMALA P.O., BALUSSERY (VIA), KOZHIKODE.
BY ADVS.
AVM.SALAHUDEEN
EMIL STANLEY
RESPONDENTS/RESPONDENTS:
1 HASSAN P
S/O.MOIDU, RESIDING AT PUTHUR HOUSE,
PUTHUR P.O., VATAKARA, KOZHIKODE- 673 101
2 SAJITH K.C.
AGED 21 YEARS
S/O.KUNHAMU,
RESIDING AT KIZHAKECHETHIL,
MOORAD (TALKIES ROAD), IRINGAL P.O.,
IRINGAL AMSOM, KOZHIKODE.
3 THE UNITED INDIA INSURANCE CO.LTD.
P.B.NO.17, CITY COMPLEX,
NEAR OLD BUS STAND, MAIN ROAD, VATAKARA.
BY ADV A.A.MOHAMMED NAZIR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 28.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA NO. 217 OF 2014
2
JUDGMENT
Dated this the 28th day of June, 2022
This appeal arises out of award in O.P.(MV). No.1314
of 2008 on the files of the Motor Accidents Claims Tribunal,
Vadakara. The respondents herein are the respondents
before the Tribunal.
2. Heard the learned counsel for the appellant as
well as the learned Standing Counsel for the Insurance
Company.
3. The brief facts as follows:
The appellant lodged claim before the Tribunal,
on the allegation that he sustained serious injuries
pursuant to an accident occurred on 06.04.2008 at about
5 p.m, while he was travelling as a pillion rider on a motor
cycle, due to the rashness and negligence on the part of
the second respondent, driver of the lorry bearing
registration No.KL/11/A-8602. The appellant claimed
Rs.4,00,000/- as compensation from respondents 1 to 3.
MACA NO. 217 OF 2014
4. The respondent Nos.1 and 2 were declared ex
parte by the Tribunal.
5. The third respondent Insurance Company filed
written statement and disputed the negligence alleged
against the second respondent. The quantum of
compensation is also disputed while admitting the policy
to lorry bearing registration No.KL/11/A-8602.
6. Thereafter, the Tribunal recorded the evidence
and marked Exts.A1 to A8 on the side of the appellant and
Ext.B1, insurance policy on the side of the respondents.
7. After evaluating evidence, as against claim of
Rs.4,00,000/-, Rs.1,20,432/- was granted by the Tribunal
along with 7.5% interest per annum.
8. According to the learned counsel for the
appellant, the Tribunal went wrong in fixing monthly
income at Rs.4,000/- as against claim of Rs.5,500/-.
According to the learned counsel for the appellant,
following the ratio in Ramachandrappa v. Manager,
MACA NO. 217 OF 2014
Royal Sundaram Alliance Insurance Company Ltd.
[(2011) 13 SCC 236] also, the income ought to have
been fixed as such.
9. This submission appears to be convincing in
view of the ratio in Ramachandrappa' case (supra). The
learned Standing Counsel for the Insurance Company also
conceded the legal position. Therefore, Rs.5,500/- claimed
by the appellant is fixed as the monthly income for
re-calculating 'loss earnings' and 'loss of disability
income'.
10. The next challenge in this appeal is the
percentage of disability accepted by the Tribunal. 36%
disability was assessed as per Ext.A6 disability certificate
issued by Medical Board, Medical College Hospital,
Kozhikode. In this matter, as borne out from Ext.A4 case
records, the appellant sustained soft tissue injury on right
elbow, fracture medial epicondyle and fracture trochlea.
The appellant was treated for a period of 54 days.
MACA NO. 217 OF 2014
11. As per Ext.A6 disability certificate issued by the
Medical Board, after considering the injuries, it was
certified that the percentage of permanent disability due
to the injury is 36%. As per Ext.A6, it could be noticed
further that the appellant himself was physically
handicapped even before the accident and in
consideration of the same, 36% permanent disability was
assessed.
12. The learned Standing Counsel for the Insurance
Company opposed increase in the percentage of disability
on the submission that the disability assessed as per
Ext.A6 is limb disability and not whole body disability. He
get support to this argument from the narration of the
award made by the Tribunal in that regard.
13. On perusing Ext.A6, it is doubtlessly clear that
36% whole body disability was assessed inclusive of
physically handicapped position of the appellant before
the accident. It is to be noted that 12% disability fixed by
MACA NO. 217 OF 2014
the Tribunal considering the injuries and treatment. I am
inclined to accept 18% disability in this matter as against
12% fixed by the Tribunal. Thus, the 'loss earnings' and
'loss disability income' require re-calculation.
14. The Tribunal granted Rs.10,000/- under the head
'loss of earnings', considering the injuries and treatment. I
am inclined to grant 'loss of earnings' for a period of 4
months at the rate of Rs.5,500/-. Thus, the appellant is
entitled to get Rs.22,000/-. Accordingly, Rs.12,000/-
(22,000-10,000) more is granted under the head 'loss of
earnings'.
15. Apart from that, compensation under the head
'loss of disability' also requires re-calculation. There is no
dispute as regards the multiplier applied by the Tribunal in
this regard. Therefore, taking monthly income at the rate
of Rs.5,500/-, the disability income is re-calculated as
under:
MACA NO. 217 OF 2014
5,500 x 12 x 11 x 18% = 1,30,680/-
Out of which, Rs.63,360/- was granted by the
Tribunal. Thus, Rs.67,320/- more is granted under the
head 'loss of disability income'.
16. Under the heads 'pain and sufferings' and 'loss
of amenities and enjoyment of life', the Tribunal granted
Rs.13,000/- and Rs.10,000/- respectively. In view of the
injuries and treatment, I am inclined to increase the same
by Rs.7,000/- more each.
In the result, this appeal stands allowed. It is held
that the appellant is entitled to get Rs.2,13,752/- as
compensation, out of which Rs.1,20,432/- was granted by
the Tribunal and the balance of Rs.93,320 (Rupees ninety
three thousand three hundred and twenty only) is granted
as enhanced compensation with the same rate of interest
awarded by the Tribunal, payable by respondents 1 to 3
and the 3rd respondent Insurance Company is liable to pay
the same, from the date of petition till the date of deposit
MACA NO. 217 OF 2014
or realisation, excluding interest for a period of 283 days
specifically excluded by this Court while allowing the delay
petition-C.M.Appl.No.1 of 2014 as per order dated
07.01.2022, while condoning the delay of filing this appeal.
Hence, the 3rd respondent 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
nkr
