Kerala High Court

Muhammed Yasir @ Yasir vs Ashraf P on 23 May, 2024

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
       THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
 THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
                     MACA NO. 4160 OF 2019
 OPMV NO.348 OF 2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,
                            MANJERI
APPELLANT/PETITIONER:

          MUHAMMED YASIR @ YASIR, AGED 23 YEARS
          S/O. ABDUL AZEEZ.C. NEDUVANCHEERI HOUSE,
          PUTHUKKODE POST, RAMANATTUKARA, PUTHUKKODE
          AMSOM, PENGAD, MALAPPURAM-673 633
          THIRUVANANTHAPURAM

            BY ADV K.VIDYASAGAR



RESPONDENTS/RESPONDENTS:

   1        ASHRAF P., S/O. HASSANKUTTY, RAHMATH MANZIL,
            RAMANATTUKARA POST, ARIKKAKALATH, RAMANATTUKARA
            AMSOM, NEAR POOVVATHUR JUMAMSJID, MALAPPURAM-673
            633, THIRUVANANTHAPURAM

   2        SABEER .N.P.,
            S/O. YOUSAF, KUNNATHUPARAMBA HOUSE, BEYPORE
            POST, BEYPORE AMSOM, KOZHIKKODE-673 015

   3        THE NEW INDIA ASSURANCE COMPANY LIMITED,
            MALIYEKKAL BUILDING, FIRST FLOOR, MANJERI ROAD,
            MALAPPURAM-676 505, ITS REPRESENTED BY
            DIVISIONAL MANAGER

            BY ADV SEBASTIAN VARGHESE(K/141/2000)


       THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION    ON   23.05.2024,   THE   COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
 MACA NO. 4160 OF 2019

                               ..2..




                         JUDGMENT

This appeal is filed under Section 166 of the Motor

Vehicles Act, 1998, by the claimant in OP(MV) No.348 of 2016

on the file of the Motor Accidents Claims Tribunal, Manjeri.

The respondents herein are the respondents before the

tribunal.

2. The case of the appellant/claimant is that on

12.03.2015 at around 9.30 pm, while he was riding pillion on a

motorcycle bearing Reg.No.KL-11/N-1417 from Eleventh Mile

to Aikkarppai, another motorcycle bearing Reg.No.KL-11-

AG/1932 ridden by the first respondent and owned by the

second respondent hit against the motorcycle on which the

appellant was riding pillion, whereby he sustained very

serious injuries. He approached the tribunal claiming a total

compensation of ₹8,00,000/-.

3. Respondents 1 and 2 entered appearance, but not

filed any written statement. The respondent insurer filed a

written statement, admitting the policy coverage for the

offending vehicle, but disputing liability and the quantum of MACA NO. 4160 OF 2019

..3..

compensation claimed. Before the tribunal, the evidence

consists of documentary evidence as Exts.A1 to A6 on the side

of the appellant/claimant and Ext.X1 as third party document.

No evidence was adduced by the respondents. The tribunal,

after analysing the pleadings and materials on record, held

that the accident took place on account of the negligence of

the rider of the offending vehicle and awarded a sum of

₹5,06,500/- as compensation under different heads against the

third respondent being the insurer. Dissatisfied with the

quantum of compensation awarded by the tribunal, the

claimant has come up in appeal.

4. Heard the learned counsel for the appellant and the

learned Standing Counsel for the respondent insurer.

5. The learned counsel for the appellant claims

enhancement mainly under the following heads;

5.1. Pain and suffering - The learned counsel for the

appellant submits that though the appellant claimed ₹75,000/-

towards pain and suffering, the tribunal awarded only

₹35,000/-. It is seen that the appellant was treated as inpatient

for eight days and he suffered left frontal extradural MACA NO. 4160 OF 2019

..4..

haematoma, multiple facio-maxillary fractures, comminuted

fractures involving right and left maxillary sinus, lateral,

posterior and medial walls extending up to alveolar ridge,

fracture in left zygomatic maxillary junction, fracture in the

floor of left orbit with herniation of orbital fat, fracture of roof

and medial wall of both orbits, multiple fracture of frontal

sinus and multiple fracture of nasal bone, ethmoid and

pneumocephalus in left frontal area. Considering the same, I

am of the opinion that a total sum of ₹50,000/- has to be granted

towards pain and suffering. Accordingly, the appellant will be

entitled to get an additional amount of ₹15,000/- under that head

after deducting ₹35,000/- awarded by the tribunal.

5.2. Permanent disability & loss of earning power - The

learned counsel for the appellant submits that as evident from

Ext.X1 disability certificate, the appellant is assessed to have

14% permanent partial disability. Though Ext.X1 was accepted

by the tribunal, it was opined that 10% out of the 14%

permanent partial disability was occasioned due to deranged

occlusion and extraction of teeth and the petitioner being a

barber, it does not affect his work. Accordingly, after

assessing and calculating functional disability, the tribunal has MACA NO. 4160 OF 2019

..5..

taken into consideration the percentage for functional

disability as 8%. This reasoning of the tribunal does not

appear to be acceptable. In Manikantan G. v. K.Janardhanan

Nair [2021(5) KHC 305], following the judgment in Rajkumar

v. Ajay Kumar [2011 (1) KLT 620 SC), this Court held as

follows;

"12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability."

Therefore, considering the avocation of the appellant, I am of

the opinion that 12% permanent disability has to be taken for MACA NO. 4160 OF 2019

..6..

awarding compensation towards permanent disability. The

tribunal already assessed future prospects at 40% and fixed

notional monthly income of the appellant at ₹10,500/-.

Therefore, applying the above standards, the appellant will be

entitled to get a compensation of ₹3,81,024/- (14700 x 12 x

18 x 12%). Then, after deducting the compensation of

₹2,54,016/- already awarded by the tribunal towards

permanent disability, the appellant will be entitled to get an

additional sum of ₹1,27,008/- under the said head.

5.3. Loss of amenities - Though the appellant claimed an

amount of ₹50,000/- towards loss of amenities, no

compensation was awarded by the tribunal under this head.

The appellant, who was a barber, sustained multiple injuries

in the accident and was an inpatient for eight days.

Considering the multiple injuries sustained by the appellant, I

deem it appropriate to award an amount of ₹30,000/- under

this head.

6. Though the appellant claimed enhancement of

compensation under other heads, on a perusal of the records

available, I am not inclined to interfere with the compensation MACA NO. 4160 OF 2019

..7..

awarded by the tribunal under other heads since it appears to

be just and reasonable. Thus, the impugned award of the

tribunal is modified as follows;

Sl.

No.      Head of Claim       Amount      Amount Modified        Total
                             claimed     awarded in appeal   compensation
                               (in ₹)     by the   (in ₹)       (in ₹)
                                         tribunal
                                           (in ₹)

1.      Loss of              100000       52500       -         52500
        earning

2.      Transport to          10000        1500       -         1500
        hospital

3.      Extra                 9000         2400       -         2400
        nourishment


        clothing and
        articles

5.      Bystander               -          3200       -         3200
        expenses

6.      Medical              150000      156662       -        156662
        expenses

7.      Pain and              75000       35000     15000       50000
        suffering

8.      Permanent            400000      254016     127008     381024
        disability &
        loss of earning
        power

9.      Loss of               50000             -   30000       30000
  MACA NO. 4160 OF 2019

                                    ..8..


      amenities

10.   Loss of              25000            -             -                 -
      expectation of
      life

11.   Inconvenience,       25000            -             -                 -
      hardship etc.

12.   Mental and           25000            -             -                 -
      physical shock

      Total                870000       506028     172008             678036

Accordingly, the appeal is allowed in part and the

appellant/claimant is awarded an additional compensation of

₹1,72,008/- (Rupees one lakh seventy two thousand and eight

only) (total compensation of Rs.6,78,036/-) over and above the

compensation awarded by the tribunal with interest @ 8% per

annum from the date of petition till realization and

proportionate costs. The respondent insurer shall deposit the

said amount together with interest and costs within a period

of two months from the date of receipt of a certified copy of

this judgment. The claimant shall furnish copies of the PAN

Card, ADHAAR Card and bank details before the respondent

insurer within a period of one month so as to enable the