## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR**
**& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH**
**SATURDAY, THE 16TH DAY OF SEPTEMBER 2017/25TH BHADRA, 1939**
**MACA.No. 2206 of 2014 () -------------------------**
**AGAINST THE AWARD IN OPMV 2085/2005 of MACT,PATHANAMTHITTA DATED 13-03-2013**
## **APPELLANT/PETITIONER:**
**-----------------------**
**A.G. GOPALAKRISHNAN NAIR, aged 76 YEARS S/O. VELAYUDHAN PILLAI, KISHORE BHAVAN, EDAYARANMULA, PATHANAMTHITTA DISTRICT.**
**BY ADVS.SRI.V.G.ARUN SRI.T.R.HARIKUMAR**
## **RESPONDENTS/RESPONDENTS:**
**--------------**
**1. JIJU JOSEPH**
**KALLARAYIL KOTTORETHU, PUNNAKKADU, PATHANAMTHITTA DISTRICT-689652.**
## **2. SUNIL KUMAR,**
**S/O. CHELLAPPAN, MANNIL VEEDU, PUNNAKKADU,PATHANAMTHITTA DISTRICT-689652.**
**3. BRANCH MANAGER, NEW INDIA ASSURANCE CO.LTD.,PATHANAMTHITTA DISTRICT689645.**
**R3 BY ADV. SMT.A.SREEKALA BY SRI.A.A.ZIYAD RAHMAN**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.**
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## **M.A.C.A.No.2206 OF 2014**
- - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of September, 2017
## **JUDGMENT**
## Ravikumar, J.
This appeal seeking enhancement of quantum of compensation is filed by the injured petitioner in O.P.(MV)No.2085/2005 on the files of the Motor Accidents Claims Tribunal, Pathanamthitta. He filed the said claim petition under Section 166 of the Motor Vehicles Act seeking compensation for the injuries sustained by him in a motor vehicle Accident occurred on 11.8.2005. On that day, he was riding his scooter bearing Reg.No.KL 03/3065 and at the place of occurrence it was hit by an ambassador car bearing Reg.No.KL-3/F-7266 driven by the second respondent. He sustained severe injuries. Consequently, he was hospitalized and remained as an inpatient for a total period of 56 days. It is in the said circumstances that the said claim petition was filed. As per the impugned award, the Tribunal granted an amount of Rs.1,87,765/- with interest @ 7.5% per annum from the date of petition
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till realization. It is dis-satisfied with and aggrieved by the said quantum of compensation that the captioned appeal has been preferred.
2. Heard.
3. Evidently, the main grievance of the appellant is that despite the production of Ext.A21 disability certificate showing the extent of disability as 10%, no amount was granted by the Tribunal as compensation for disability. That apart, it is his contention that the Tribunal erroneously estimated the monthly income as Rs.3,500/ignoring the averments in the claim petition that he was a proprietor of a bakery and a stationary and was earning Rs.7,000/- per month. It is the further contention that the Tribunal has granted only a meagre amounts towards expenses for extra nourishment, bystander's expenses, loss of amenities etc.
4. Per contra, the learned counsel appearing for the respondent submitted that the schedule of compensation would reveal that the appellant was granted just compensation commensurating with the
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injuries sustained and therefore no appellate interference is called for.
5. Having heard the submissions and also perusing the impugned judgment, we are of the view that the impugned judgment invites interference. We will firstly consider the question whether the grievance of the petitioner regarding denial of compensation for permanent disability is sustainable. True that the appellant has produced Ext.A21 disability certificate and it carried a certification to the effect that the appellant had incurred disability to the tune of 10%. It is issued by Dr.Jayakrishnan, a consultant Orthopaedic Surgeon attached to Century Hospital, Mulakuzha. Evidently, the said doctor was not examined before the Tribunal. When a certificate of disability was issued by a Doctor on examination of the injured after perusing the treatment records or by a doctor who treated the injured, the mere production of such a disability certificate could not be taken as the proof of disability unless the said doctor was tendered for crossexamination before the Tribunal. In that regard, the decision of the Hon'ble Apex Court in **Rajkumar v. Ajaykumar ( 2011 (1)KLT 620**
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**(SC)]** has to be looked into. Going by the said decision, in a case where the disability certificate is not issued by a duly constituted medical board, but was issued by a doctor who treated the injured or who assessed the permanent disability, the mere production of disability certificate or discharge certificate could not be taken as the proof of the extent of disability unless the doctor to treated the claimant or who medically examined and assessed the extent of disability of the claimant was tendered for cross examination with reference to the certificate. In the light of the decision in **Rajkumar's** case (supra), and also taking into consideration the indisputable position that the doctor who issued Ext.A21 certificate was not examined before the Tribunal, we do not find any reason to hold that the Tribunal had gone wrong in declining to accept and act upon Ext.A21. In short, we do not find any reason to interfere with the disinclination shown by the Tribunal to grant compensation for permanent disability to the petitioner.
6. We will proceed to consider the question whether the appellant is entitled to get enhanced compensation under any other
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heads. The appellant claimed that he was the proprietor of N.K.Bakery and stationary and was earning Rs.7,000/- per month. Evidently, no evidence was adduced by him to establish his averments regarding occupation and income. When that be the case, the Tribunal cannot be said to have erred in fixing the monthly income notionally. Taking into consideration the fact that the accident occurred on 11.8.2005 and that at the time of the accident the appellant was aged 67 years, we are of the view that the monthly income can be re-fixed as Rs.5,000/- for calculation purpose. The Tribunal took a period of six months for the purpose of calculating compensation for loss of earnings. Retaining the said period, but calculating compensation thereunder @ Rs.5,000/- per month, the appellant will be entitled to get an additional compensation of Rs.9,000/-. Taking into account the number of hospitalization in connection with treatment of the injury sustained in the accident, we are inclined to grant Rs.1,000/- more towards transportation to hospital. Though the appellant had been an inpatient for a period of 56 days, the Tribunal has granted only an amount of Rs.750/- towards extra
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nourishment and an amount of Rs.6,400/- towards bystander's expenses. Ext.A6 would certificate would reveal the injuries sustained by the appellant in the accident. It would reveal that the appellant sustained the following injuries :
(1) Pain, swelling, deformity (Lt) leg, crepitus present. X-ray shows fracture tibia and fibula (Lt) (2) Lacerated wound (Lt) leg below knee 3 cm. X 1 cm. With irregular margins, bleeding (3) Lacerated wound
(Lt) leg antiriorly 4 cm. X 1 cm. With irregular margin, bleeding present.”
7. Taking into account the nature of the injuries, the period of hospitalization and the impact of such injuries, we are of the view that towards bystander's expenses, the appellant is entitled to get enhancement. The period of decumbenture will be more than the period of hospitalization. Taking into account all the aforesaid aspects as well as the age of the appellant at the relevant period, we are inclined to grant an amount of Rs.5,000/- additionally towards bystander's
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expenses. Towards extra nourishment, at the rate of Rs.100/- per day during the period of hospitalization, he will be entitled to get Rs.4,850/- additionally under that head. The nature of the injuries would indicate that the dresses worn by the appellant at the time of the accident must have been spoiled, we are inclined to grant Rs.500/more under that head. Towards loss of amenities, the appellant was granted an amount of Rs.10,000/-. While considering the question whether the appellant is entitled to get enhancement of compensation thereunder, it is only worthwhile to refer to the nature of the injuries and the treatment underwent by the petitioner as explained in paragraph 8 of the judgment. Taking into account the nature of the injuries and treatment underwent by the appellant as also the period of treatment, we are of the view that an amount of Rs.10,000/- more can be granted thereunder. Despite our anxious consideration, we do not find any reason to interfere with the compensation granted under other heads.
In the result, this appeal is allowed and a total additional compensation of Rs.30,3,50/- is granted. The said additional
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compensation will carry interest @ 8% per annum from the date of petition till realization except for the period from 14.07.2013 till 25.08.2014 in view of the order passed by this Court in C.M.Appln.No.2548/2014 in this appeal. The third respondent Insurance Company is directed to deposit the said additional compensation along with interest thereon within a period of one month from the date of receipt of a copy of this judgment. There will be no order as to costs.
## **C.T.RAVIKUMAR, JUDGE**
## **K.P.JYOTHINDRANATH, JUDGE**
sv.
