A.C.Radhakrishnan vs T.K.C.Hussain And Others
2022 Latest Caselaw 7985 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
         THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
  WEDNESDAY, THE 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
                   MACA NO. 366 OF 2010
AGAINST THE AWARD DATED 07.09.2009 IN OP(MV)NO.1982/2006 OF
    PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE


APPELLANT/PETITIONER :

         A.C.RADHAKRISHNAN,
         S/O.GOVINDAN NAIR,
         AGED 42 YEARS,
         ARYACHALIL HOUSE,
         MUCHUKKUNNU P.O.,
         KOYILANDI,
         KOZHIKODE DISTRICT.
         BY ADVS.
         SRI.V.S.CHANDRASEKHARAN
         SMT.LEKSHMI SWAMINATHAN


RESPONDENTS/RESPONDENTS :

    1    T.K.C.HUSSAIN,
         S/O.POKKER,
         AGE NOT KNOWN,
         RESIDING AT 7/7,
         MARATTAMMAL HOUSE,
         VALIYAPARAMBA,
         KIZHAKKOTH P.O.,
         KODUVALLY,
         KOZHIKODE DISTRICT.
    2    ANISH K.K.,
         S/O. DAMODHARAN K.K.,
         AGED 32 YEARS,
         RESIDING AT KOTTAKKUNNUMMAL HOUSE,
         P.O. EKAROOR,
         KOZHIKODE.(DELETED)
 MACA No.366 of 2010
                                  ..2..




             THE SECOND RESPONDENT IS DELETED FROM THE PARTY
             ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER
             DATED 11.11.2016 IN IA NO.3940/2016 IN MACA
             NO.366/2010
     3       THE NEW INDIA ASSURANCE CO.LTD.
             DIVISIONAL OFFICE, SILVER PLAZA BUILDING,,
             INDIRA GANDHI ROAD, KOZHIKODE.
             R3 BY SRI.P.K.BABU, STANDING COUNSEL



         THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION     ON   29.06.2022,   THE      COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
 MACA No.366 of 2010
                                       ..3..




                       MACA No.366 of 2010
        -----------------------------------------------


                           JUDGMENT

This appeal arises out of award dated 07.09.2009

in O.P.(MV)No.1982 of 2006 on the file of the Principal Motor

Accident Claims Tribunal, Ernakulam. The appellant herein is

the petitioner before the Tribunal. Respondents herein are

the respondents before the Tribunal.

2. Heard the learned counsel for the appellant,

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

15.6.2006 at about 4.30 p.m, while the appellant was MACA No.366 of 2010 ..4..

driving the jeep bearing Registration No.KL-13/F-2564 from

Bathery to Kozhikode and when he reached hear Padanilam,

the bus bearing Registration No.KL-11-K-2007 came in a

rash and negligent manner and dashed into his jeep and

thereby, the appellant suffered serious injuries.

4. R3 filed written statement admitting

insurance and disputing accident and negligence. At the

same time, quantum of compensation also was disputed,

while admitting policy to the vehicle involved in the accident.

5. The Tribunal marked as Exts.A1 to A8 on the

side of the appellant. No evidence let in by the

respondents. Thereafter, as against claim of Rs.2,00,000/-,

Rs.35,350/- was granted by the Tribunal in this case along

with interest at the rate of 7% per annum.

6. The learned counsel for the appellant would

submit that Rs.2,500/- alone is granted under the head loss MACA No.366 of 2010 ..5..

of earnings even without fixing the monthly income where

the appellant claimed his income at Rs.7,000/- as a driver.

7. Fixation of income is not a dispute, since the

ratio in [(2011) 13 SCC 236], Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance

Company Ltd. would govern the same. Therefore, in this

case, involving accident of the year 2006, Rs.5,500/- can

fairly be fixed as the monthly income for re-calculating loss

of earnings and I do so.

8. It is submitted by the learned counsel for the

appellant that the appellant sustained fracture of the (Rt)

ribs 3rd to 10th. Therefore, loss of earnings for a period of

four months to be granted.

9. The injury sustained by the appellant could

be gathered from Ext.A2 wound certificate, Ext.A3 discharge

card and Ext.A4 reference card. The appellant sustained MACA No.366 of 2010 ..6..

fracture ribs 3rd to 10th (Rt.), fracture of the frontal bone

with minimal SAH, lung contusion, liver laceration in (Rt)

Haemothorax (minimal), Haemoperotoneum, laceration

lagement 6 liver GR3 hepatic injury, subartaneous collution

lateral aspect of right thigh. Ext.A3 is the discharge

summary showing that petitioner was admitted on

15.06.2006 and discharged on 26.06.2006. Ext.A6 is

another discharge summary.

10. Even though the learned counsel for the

insurance company opposed grant of excess amount,

reasonable amount is liable to be granted. In consideration

of the injury as extracted above, I am inclined to grant loss

of earnings for a period of four months at the rate of

Rs.5,500/-. The same is re-calculated as under;

5,500x4=22,000/-

Out of which, Rs.2,500/- was granted by the MACA No.366 of 2010 ..7..

Tribunal. Rs.22,000-2,500=Rs.19,500/-more is granted

under the head loss of earnings.

11. Under the head pain and sufferings, the

Tribunal granted Rs.19,000/-. Considering the injuries, I am

inclined to grant Rs.6,000/- more under the head pain and

sufferings. Towards loss of amenities, the Tribunal granted

only Rs.2,000/- in a case, involving rib fracture and

consequential treatment. I am inclined to grant

Rs.15,000/- more under the loss of amenities.

In the result, this appeal is allowed. It is ordered

that the appellant is entitled to get enhanced compensation

to the tune of Rs.40,500/-(Rupees Forty Thousand Five

Hundred only) at the rate of 7% interest granted by the

Tribunal excluding the amount already granted by the

Tribunal from the date of petition till the date of deposit or

realisation. The insurance company is directed to deposit the MACA No.366 of 2010 ..8..

same in the name of the appellant within two months from

today and on deposit, the appellant is at liberty to release

the same.

Sd/-

A.BADHARUDEEN, JUDGE rkj