Kerala High Court
Mohanan.R vs Abdul Rahiman on 5 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
WEDNESDAY, THE 5TH DAY OF JUNE 2024 / 15TH JYAISHTA, 1946
MACA NO. 1199 OF 2013
FROM AWARD IN OPMV NO.2930 OF 2006 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL THRISSUR DATED 15.01.2013
APPELLANT/PETITIONER:
MOHANAN.R.
S/O.RAMAN, KANNAN BHAVAN, KIZHAKKEKULAM, KANNAMBRA.P.O.,
PALAKKAD.
BY ADV SRI.P.V.CHANDRA MOHAN
RESPONDENTS/RESPONDENTS:
1 ABDUL RAHIMAN
S/O.MEERANKURUKKAL, KARUKAPARAMBIL HOUSE, VANIYAMPARA, VIA.ALATHUR,
PALAKKAD DISTRICT, PIN 678541.
2 PREMAKUMAR
S/O.KUTTAPPAN, PATTA HOUSE, CHITTILANCHERY, ALATHUR, PALAKKAD
DISTRICT-678541.
3 THE NEW INDIA ASSURANCE CO.LTD.
THRISSUR-680001.
BY ADVS.
SRI.A.A.ZIYAD RAHMAN
SRI.LAL K.JOSEPH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 05.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
M.A.C.A. No. 1199 of 2013
SOPHY THOMAS, J.
=====================
M.A.C.A. No. 1199 of 2013
========================
JUDGMENT
Dated this the 3rd day of June, 2024
This appeal is at the instance of the claimant in O.P. (MV)
No. 2930 of 2006 on the file of Motor Accidents Claims Tribunal,
Thrissur impugning the award on the ground of inadequacy of
compensation.
2. On 13.11.2005 at 09.15 pm, while he was travelling in KL-8M
5090 bus through Wadakkanchery - Pulinkootam public road, the
bus lost its control due to the rash and negligent driving of the bus
by the 2nd respondent, and it overturned, causing injuries to the
appellant/claimant. The appellant was admitted, and treated in
hospital for 3 days for compressive fracture of L1, IVDP L4, and
stiffness of lumbar spine with back pain. He was a 30-year-old LIC
agent earning monthly income of Rs.15,000/-. He approached the
Tribunal claiming compensation of Rs.1,61,000/-. But learned
Tribunal awarded only Rs.54,200 and hence this appeal.
3. Respondents 1 to 3 are the owner, driver, and insurer
respectively of the offending bus. Respondents 1 and 2 remained
exparte before the Tribunal. The 3rd respondent insurer contested
the case before the Tribunal, admitting the policy, but disputing the
liability, alleging violation of the policy conditions.
4. Learned Tribunal allowed the claim directing the 3rd
respondent to compensate the claimant initially but permitted
recovery from the 1st respondent - owner, since there was violation
of the policy conditions.
5. In the appeal, respondents 1 and 2 remained absent in spite
of service of notice. So the recovery ordered is not under challenge,
and it has become final.
6. The 3rd respondent insurer entered appearance through
counsel, and according to them, the compensation awarded by the
Tribunal is just and reasonable, and so it needs no modification, but
the recovery order has to be maintained.
7. Now this Court is called upon to answer whether there is any
illegality, impropriety, or irregularity in the impugned award of the
Tribunal warranting interference by this Court.
8. Heard learned counsel for the appellant, and learned counsel
for the 3rd respondent insurer.
9. Learned counsel for the appellant would submit that the
appellant was an LIC agent aged only 30 at the time of accident,
earning monthly income of Rs.15,000/-. Due to compressive fracture
of L1, IVDP L4, and stiffness of lumbar spine, he was not able to do
his job as an LIC agent and so he suffered loss of income. But
learned Tribunal did not award any amount towards loss of income
though he claimed Rs.30,000/-. Ext.A11 is the copy of income Tax
return submitted by the appellant for the assessment year 2005 -
2006 (financial year 2004 - 2005). As per that document, his gross
annual income was Rs.94,146/-. Though there is no document to
prove his income for the financial year 2005 - 2006, covering the
period of accident, this Court is inclined to rely on Ext.A11 document
to take his annual income as Rs.94,146/-. So, his monthly income
can be taken as Rs.7,846/- (94,146/12).
10. The appellant was hospitalized only for three days. But
according to learned counsel for the appellant, since the appellant
had suffered compressive fracture of L1 vertebra, IVDP L4 and
stiffness of lumbar spine, he was not able to do his job as an LIC
agent for a considerable period. But no evidence is there to show,
how long he was on rest, or how far he lost his income. But
considering the nature of injuries he had suffered on the vertebra,
this Court inclined to take his loss of income for one month
@ Rs.7,846/-. So he is entitled to get Rs.7,846 under the head loss
of earning.
11. Towards extra nourishment, learned Tribunal awarded no
amount though Rs.1,000/- was claimed by him. This Court is
inclined to award Rs.1,000/- as he was hospitalized for three days,
and he could have been on rest, at least for one month.
12. Towards damage to clothing also no amount was seen
awarded by the Tribunal. So this Court is inclined to award Rs.500/-
as claimed by him under that head.
13. Towards pain and suffering, learned Tribunal awarded
Rs.15,000/- against his claim of Rs.20,000/-. Since the injuries
suffered was compressive fracture of L1 vertebra and IVDP of L4
vertebra with stiffness of lumbar spine coupled with back pain, this
Court is inclined to award Rs.2,500/- more under the head pain and
suffering.
14. Learned counsel for the appellant would submit that the
appellant had suffered 18% disability due to the injuries suffered in
the accident. He is relying on Ext.A9 certificate issued by Dr.
Jyothish K, who was a lecturer in orthopedics in Government
Medical College, Thrissur. The doctor who issued that certificate
was not examined by the appellant before the Tribunal. The incident
was on 13.11.2005. Ext.A9 certificate is dated 20.09.2012, i.e., after
7 years of the incident. There is nothing to show that after
discharge from the hospital, the appellant was undergoing any kind
of treatment. Since the certificate was not issued by a medical
board, and the doctor who issued the same was not examined
before the Tribunal, the disability reported in Ext.A9 is not liable to
be accepted as such. Even then since the injury suffered by him
was compressive fracture of L1 and IVDP L4, this Court is inclined
to accept disability to the extent of 5% for the appellant. The
multiplier applicable is 17 as he was aged only 30. So the
compensation for 5% disability can be assessed as Rs.80,029/-
(7,846 x 12 x 17 x 5/100). After deducting Rs.12,000/- already
awarded by the Tribunal towards disability, the appellant is entitled
to get the balance amount of Rs.6,8029/- as enhancement under the
head disability.
15. The compensation awarded under all other heads seems to
be reasonable, and hence it needs no modification.
16. The enhanced compensation awarded in this appeal is given
in the table below:-
Head of claim Amount Amount Difference to be
awarded awarded in drawn as
by the appeal enhanced
Tribunal compensation
Loss of earning ..... 7846 7,846/-
Extra ...... 1,000/- 1,000/-
nourishment
Damage to ..... 500/- 500/-
clothing
Pain and suffering 15,000/- 17,500/- 2,500/-
Disability ...... 80,029/- 68,029
Total 79,875/-
17. In the result, the appellant is entitled to get enhanced
compensation of Rs.79,875/- (7,846 + 1,000 + 500 + 2500 +
68,029/-).
18. The 3rd respondent insurer is directed to deposit the
enhanced compensation of Rs.79,875/- with 8% interest per annum
from the date of petition till the date of deposit before the Motor
Accidents Claims Tribunal, Thrissur within a period of two months
from the date of receipt of a copy of this judgment. Learned Tribunal
shall disburse that amount to the appellant, after deducting the
liabilities, if any, towards Tax, balance court fee, and legal benefit
fund.
19. The liberty given to the insurer to recover the award amount
from the 1st respondent - owner is retained.
The appeal is allowed to the extent as above with
proportionate costs.
Sd/-
SOPHY THOMAS
JUDGE
RMV
