Ayisha v Balakrishnan and The Oriental Insurance Co., Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR TUESDAY, THE 31ST DAY OF OCTOBER 2017/9TH KARTHIKA, 1939 MACA.No. 1660 of 2008 ( ) -------------------------AGAINST THE AWARD IN OPMV 3373/2001 of PRINCIPAL M.A.C.T.,KOZHIKODE DATED 04-09-2007 APPELLANT(S):CLAIMANT ---------------------------- AYISHA, W/O. MAMMUKUTTY, AGED 49 YEARS, NELLAM VEETTIL HOUSE, NADUVANNUR POST, KOZHIKODE. BY ADV. SMT.K.V.RASHMI RESPONDENT(S):RESPONDENTS ------------------------------------ 1. BALAKRISHNAN, S/O. PERAVAKUTTY KUTTIYIL HOUSE, ELATHOOR POST, KOZHIKODE. 2. THE ORIENTAL INSURANCE CO.,LTD., DIVISIONAL OFFICE , PRAMOD BUILDING, 2ND FLOOR, CHEROOTY ROAD, KOZHIKODE. R2 BY ADV.SRI.MATHEWS JACOB (SR.) R2 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.P.R.SREEJITH R1 BY ADV. SRI.M.PROMODH KUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ. ========================== M.A.C.A. No.1660 OF 2008 ==========================** Dated this the 31[st ] day of October, 2017 ## **JUDGMENT** _Sudheendra Kumar, J._ The appellant sustained injuries in a road traffic accident which occurred on 23.07.2001 at 10.30 p.m. The appellant was travelling in an autorickshaw from Ulliyeri to Naduvannur. At that time, a bus bearing Reg.No.KL-10/G-8804 driven rashly and negligently by its driver, hit against the autorickshaw and as a consequence, the appellant sustained serious injuries. The appellant was immediately taken to the Medical College Hospital, Kozhikode and treated there as inpatient. 2. In connection with the injuries sustained by the appellant, the Tribunal awarded an amount of Rs.28,500/- as compensation. Aggrieved by the quantum of compensation awarded by the Tribunal, this appeal has been filed. **M.A.C.A.1660/2008** 2 3. Heard the learned counsel for the appellant and the learned counsel for the second respondent. 4. The appellant contended that she was a tailor earning Rs.4,000/- per month. The appellant herself got examined as PW1. However, the Tribunal did not accept the evidence of PW1 and fixed the notional monthly income of the appellant at Rs.1,500/-. We have gone through the evidence of PW1. PW1 clearly stated that she was doing tailoring works during the relevant period. Having gone through the evidence of PW1, we do not find any reason to disbelieve her testimony. Therefore, we are of the view that she was more than a housewife and hence, we accept her claim that she was getting a monthly income of Rs.4,000/-. The appellant was examined by a medical board as referred by the Tribunal. Thereafter, the medical board issued disability certificate which we have already marked as Ext.C1. The Tribunal declined to mark the said document and accept the same for the reason extracted hereunder:- “The marking of this document is seriously disputed by R2. It is brought to my knowledge that the reliability and credibility of certificate issued by Medical Board, during those time **M.A.C.A.1660/2008** 3 were seriously doubted and several certificate have been returned to the Medical College Hospital.” 5. We are not persuaded to accept the above reasons stated by the Tribunal for not having marked and accepted Ext.C1. Ext.C1 is the certificate issued by the medical board. It states that the appellant sustained 21% permanent disability. Five doctors examined the appellant and issued the said certificate. It states that the appellant sustained fracture of left scapula and fracture of thoracic spine. However, no specific reason had been stated by the medical board as to how the permanent disability was fixed at 21%. In view of the above reason and having regard to the injuries sustained by the appellant, we are of the view that it is only just and proper to fix the permanent disability of the appellant at 15%. Accordingly, we do so. The appellant was aged 42 years during the relevant period. The Tribunal had adopted '15' as the multiplier. Since the appellant was aged 42 years, the multiplier to be used is '14' as held by the Apex Court in Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)] for the purpose of calculating disability compensation. **M.A.C.A.1660/2008** 4 Thus, the appellant is entitled to an amount of Rs.1,00,800/(4000x12x14x15/100) as compensation towards permanent disability. Subtracting the amount of Rs.13,500/- awarded by the Tribunal, the appellant is entitled to an amount of Rs.87,300/- as additional compensation under the said count. The appellant had undergone treatment as inpatient for 31 days as is revealed from Ext.A2 reference card issued from the Medical College Hospital, Kozhikode. Therefore, the appellant is entitled to an amount of Rs.6,200/- as compensation towards bystander expenses and extra nourishment together as against Rs.1,500/- granted by the Tribunal. Subtracting the amount awarded by the Tribunal, the appellant is entitled to an additional amount of Rs.4,700/- under the said counts together. The appellant sustained compressed fracture T10 and fracture of neck of left scapula as per Ext.A2 reference card. Considering the nature of the injuries sustained by the appellant, we are granting an additional amount of Rs.5,000/- as compensation towards pain and suffering as the Tribunal awarded only Rs.10,000/- under the said count. Considering the nature of the injuries, the period of treatment **M.A.C.A.1660/2008** 5 undergone by the appellant and the percentage of disability sustained by the appellant, we are granting an amount of Rs.10,000/- as compensation towards loss of amenities as the Tribunal did not award any amount under the said head. Towards damage to clothing, we are granting an amount of Rs.500/- as the Tribunal did not award any amount under the said count. Thus, the appellant is entitled to an amount of Rs.1,07,500/- as additional compensation. The above amount carries interest at the rate of 8% per annum from the date of petition till the date of realisation. The second respondent, being the insurer of the vehicle, is directed to deposit the amount of compensation before the Tribunal within a period of two months from the date of receipt of a copy of this judgment. _._ Appeal stands disposed of as above **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **B.SUDHEENDRA KUMAR (JUDGE)** **spc/** **M.A.C.A.1660/2008** 6 **C.T. RAVIKUMAR, J.** **M.A.C.A.1660/2008** 7 **JUDGMENT September, 2010**