Abdul Jabbar v. Bhaveesh and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 13TH DAY OF OCTOBER 2016/21ST ASWINA, 1938 MACA.No. 1245 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 401/2007 of M.A.C.T OTTAPPALAM DATED 25-01-2012 APPELLANT(S):PETITIONER ----------------------------- ABDUL JABBAR S/O.MUHAMMEDKUTTY, R/A.PALAKKATHADATH HOUSE, KARINGANAD, KOPPAM, OTTAPALAM TALUK, PALAKKAD DIST BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD SRI.K.A.ANAS ## RESPONDENT(S):RESPONDENTS ----------------------------------- 1. BHAVEESH - S/O.VASUDEVAN, R/A.PARAMBAYIL VEEDU, CHUNDAMPATTA, OTTAPALAM TALUK, PALAKKAD-679101 2. MOHAMMED MUSTHAFA, - S/O.KUNHEEDKUTTY, R/A.PARAYIL HOUSE, P.O.MELMURI, PULASSERY, PALAKKAD-379307 3. THE ORIENTAL INSURANCE COMPANY LTD., PRANAVAM, MELE PATTAMBI, PALAKKAD-679306 (INSURER OF KL-14E 2512 TEMPO VAN) 4. NOUSHAD K.T. - S/O.KHADER, R/A.KOTTILINGAL THODI HOUSE, KARINGANAD, - P.O.MANNENGODE, PATTAMBI, OTTAPALAM TALUK, PALAKKAD-679307 5. THE ORIENTAL INSURANCE COMPANY LTD. PRANAVAM, MELE PATTAMBI, PALAKKAD -679306 (INSURER OF KL 9Q 9565 MOTOR CYCLE) R3 AND 5 BY ADV. SRI.RAJESH THOMAS BY SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR &** ## **DEVAN RAMACHANDRAN, JJ. ========================== M.A.C.A. No.1245 OF 2012 ==========================** Dated this the 13[th] day of October, 2016 ## **JUDGMENT** _Ravikumar, J._ This appeal has been preferred by the injured-claimant. He filed O.P.(MV).No.401 of 2007 seeking compensation for the injuries sustained by him in a motor vehicle accident that occurred on 6.2.2007. The Tribunal granted a total compensation of `1,31,500/against a claim of `3,00,000/-. 2.We have heard Sri.T.C.Suresh Menon, the learned counsel for the appellant and Sri.Rajesh Thomas, the learned counsel appearing for respondents 3 and 5. In fact, the same company is arrayed as respondents 3 and 5 owing to the fact that both the vehicles involved in the accident are insured with the same insurance company. The **M.A.C.A.1245/2012** 2 third respondent is the insurer of the alleged offending vehicle. There is no dispute regarding the cause of the accident as the negligence from the part of the first respondent and also the valid insurance coverage of the offending vehicle. In such circumstances, we are of the view that this appeal can be disposed of at the admission stage itself. 3.The main grievance of the appellant is regarding the fixation of the monthly income as also the disinclination shown by the Tribunal to assess the permanent disability. It is the contention of the appellant that the nature of the injuries as revealed from Ext.A5 wound certificate and Exts.A9 and A10 discharge cards would indicate that the injuries sustained by him resulted in permanent disability. Apart from the assertion of the appellant that the injuries sustained by him resulted in permanent disability, there is no evidence on record to support and sustain the said contention. The learned counsel for the appellant drew our attention to Ext.A5 wound **M.A.C.A.1245/2012** 3 certificate, Exts.A9 and A10 discharge cards and Ext.A11 treatment certificate to gain support to his assertion of having incurred permanent disability. They are not substitutes to a disability certificate carrying the assessment of the degree of disability. In such circumstances, we do not find any force in the contention of the appellant that the Tribunal has erred in not assessing permanent disability and granting compensation under that head. The learned counsel appearing for the insurance company contended that in the absence of any evidence of permanent disability the appellant would not be justified in raising grievance against non-assessment of permanent disability and consequential denial of compensation under that head. 4.Now, we will consider whether the notional fixation of monthly income warrants interference. The accident occurred in the year 2007. In the claim petition, it was stated that the appellant was a coolie and was earning `4,000/- per month. Taking note of the year of **M.A.C.A.1245/2012** 4 the accident and the age of the appellant at the time of the accident, we do not find any reason to disbelieve the claim of the appellant that he was earning `4,000/- per month. The probable income which would be fixed in terms of the decision in **Ramachandrappa v.** ## **Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** will also support such fixation. Hence, we are inclined to fix the monthly income as `4,000/- for calculation purpose. Ext.A5 wound certificate and Exts.A9 and A10 discharge cards would reveal the nature of the injuries sustained by the appellant in the accident. They would show that the appellant sustained the following injuries:- “Compound fracture distal femur (R), lacerated wound anterior aspect of Rt.knee, and X-ray Rt.knee comminuted inter condylar fracture Rt.femur” 5.The appellant had been an inpatient for a period of 27 days. Ext.A10 would reveal that he sustained type III B open comminuted S/C, I/C fracture Rt. upper tibial pin traction. Ext.A11 is the treatment **M.A.C.A.1245/2012** 5 certificate. It was issued by an orthopaedic surgeon. It would reveal that wound debridement open reduction internal fixation with LCP were done besides fitting of intercondylar cannulated screws and bone grafting. Taking note of the nature of the injuries revealed from aforesaid documents and also the nature of the treatment underwent by him, we are of the view that the period fixed by the Tribunal towards loss of earning is too short. It ought to have been five months. Thus, taking the monthly income as `4,000/- and period of loss of earning as five months, the appellant would be entitled to get an additional compensation of `11,000/- under that head. It is granted. The Tribunal has granted an amount of `10,000/- towards future treatment. The appellant had produced Ext.A12 certificate to show that implant removal is required in future. The evidence of PW2 together with Ext.A12 would reveal the amount required for the said purpose as `18,000/-. Taking note of the nature of the treatment undergone and the nature of the implant, we are of the view that the amount claimed towards future treatment is reasonable. In such **M.A.C.A.1245/2012** 6 circumstances, we are inclined to grant `8,000/- more under that head. Towards damage to clothing, the Tribunal granted only an amount of `500/- as against a claim of `1,000/-. The nature of the injuries would suggest that the dresses worn by him must have been damaged in the accident. Therefore, we are inclined to grant `500/- more under that head. The nature of the injuries would reveal that the appellant must have endured enormous pain from the injuries sustained in the accident. He claimed an amount of `50,000/- towards pain and suffering and the Tribunal granted only `12,000/-. We are of the view that the amount granted under that head is also too low. Hence, we are inclined to grant `13,000/- over and above the amount granted by the Tribunal under the head pain and suffering. Towards loss of amenities, the Tribunal granted an amount of `15,000/- against a claim of `20,000/-. The nature of the injuries and the period of convalescence would undoubtedly show that he must have been deprived of the pleasures of life for a quite long time. In such circumstances, we are inclined to grant the amount as claimed by the **M.A.C.A.1245/2012** 7 appellant under that head. In that view of the matter, the appellant is entitled to get `5,000/- more under that head. In the light of the discussions as above, the appellant is entitled to get an additional compensation of `37,500/-. It is granted. The additional compensation will carry interest @ 8% per annum from the date of the petition till realisation. The third respondent is directed to deposit the said amount along with interest thereon within a period of two months from the date of receipt of a copy of this judgment. There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **DEVAN RAMACHANDRAN (JUDGE)** **spc/** **M.A.C.A.1245/2012** 8 **C.T. RAVIKUMAR, J.** **M.A.C.A.1245/2012** 9 **JUDGMENT September, 2010**