Bibin Thomas v. Shahul Hameed and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 11TH DAY OF JANUARY 2018 / 21 ST POUSHA, 1939** **------------------** **AGAINST THE AWARD IN O.P.(M.V.) NO.1294/2007 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,PALA DATED 18-07-2008** **----------------------------** **APPELLANT(S)/PETITIONER :** **-----------------------** **BIBIN THOMAS, AGED 24, S/O. GOPI, VETTATHUKUNNEL HOUSE, VELLILAPALLY KARA, RAMAPURAM, KOTTAYAM (DIST).** **BY ADV.SRI.S.PRASANTH** **RESPONDENT(S)/RESPONDENTS : -------------------------** **1. SHAHUL HAMEED (OWNER OF VEHICLE), PALAYAMKOTTIL HOUSE, PERINGAL P.O.,ERNAKULAM.** **2. SAINUDEEN (DRIVER), S/O. PAREED, PEEDIYEKKAL HOUSE, KUMARAPURAM BHAGAM, ERUMELYKARA, KUNNATHUNADU VILLAGE, ERNAKULAM DIST.** **3. THE MANAGER, ROYAL SUNDARAM FINANCIERS, ERNAKULAM BRANCH.** **R3 BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** **---------------------------M.A.C.A. No.223 of 2009 -----------------------------------Dated this the 11[th] day of January, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P.(M.V.) No.1294 of 2007 of the Motor Accidents Claims Tribunal, Pala by the injured. The appellant sustained injuries in a motor accident on 17.06.2007 at 4 p.m., at Ramapuram and the learned tribunal awarded an amount of Rs.1,12,860/- with interest and cost as compensation. Being aggrieved by that, the injured preferred this appeal. 2. There is no dispute with regard to the accident. The insurer admitted the insurance coverage of the vehicle, but disputed the age, occupation and income of the victim. Appellant contended that he is a Mason and was getting Rs.6,000/- per month. He was aged 22 years at the time of accident. No contra evidence has been produced before the tribunal, therefore, the evidence of the appellant can be considered to prove the age and M.A.C.A. No.223 of 2009 2 income. 3. Apex Court in **Syed Sadiq and Others** v. **Divisional Manager, United India Insurance Company Limited (2014) 2 Supreme Court Cases 735** held that in the absence of any contra evidence, the income stated by the victim has to be considered. The learned tribunal awarded the following amounts as compensation. Medical expenses Rs.22,400/-, Loss of earnings Rs.6,000/-, Bystander expenses Rs.3,000/-, Extra nourishment Rs.250/-, Damages to clothing Rs.250/-, Transport to Hospital Rs.2,000/-, Pain and sufferings Rs.18,000/-, Permanent partial disability resulting in loss of earning capacity Rs.48960/- and Loss of amenities Rs.12,000/-. The total compensation awarded by the tribunal was Rs.1,12,860/- (Rupees One Lakh Twelve thousand eight hundred and sixty only). 4. Appellant sustained fracture shaft of femur and intercondylar fracture right and open comminuted fracture both bones of right leg. Ext.A7 discharge card ## M.A.C.A. No.223 of 2009 3 shows that he was admitted in the hospital for 17 days but he had taken bed rest for several days thereafter. Ext.A9 shows that he was again admitted in the hospital with ununited fracture middle and lower third and was discharged after three days. He also produced medical bill for Rs.22371/-. Hence in view of the decision of the apex court in **Rajkumar** v. **Ajay Kumar and Anr. [2011 ACJ 1]** the appellant is entitled to get just amount as compensation. Ext.A13 shows that the appellant sustained type II open fracture right tibia, supracondylar, intercondylar fracture right femur with right common peroneal nerve injury. He was treated by wound debridement & later open reduction internal fixation done with dynamic condylar screw on 26.06.2007. After suture removal on 05.07.2007 above knee cast was applied and he was discharged. 5. Again he was admitted on 29.10.2007 for ununited fracture right tibia for which bone marrow injection was given. From 07.01.2008 partial weight bearing was started. On 05.05.2008 PTB cast was applied ## M.A.C.A. No.223 of 2009 4 & knee mobilization started. He complains of pain and limping right lower limb, numbness right leg and foot and inability to move right knee. On examination there is wasting of right thigh and leg muscles. There is swelling of right ankle. There is tenderness and thickening of right lower femur and tibia. There is deformity of right tibia. In the right knee there is tenderness, crepitus, fixed flexion deformity of 10[0 ] and further flexion upto 50[0] . In the right ankle there is tenderness, fixed plantar flexion deformity of 10[0] and further plantar felxion upto 30[0] . There is sensory blunting over right lower leg and ankle. Radiologically there is malunion of right tibia with posterior angulation and joint space narrowing. Osteoarthritic changes in the right knee. Therefore, his disability was fixed at 15%. The learned tribunal ignored the disability certificate and assessed the disability at 12% which is against the direction issued by the Apex Court in **Raj Kumar** (Supra). 6. Rules 387 and 388 of the Motor Vehicles Rules, 1987 reads as follows: M.A.C.A. No.223 of 2009 5 387. Examination of the injured by a Medical Officer.- The Claims Tribunal may, if it considers necessary, direct any medical officer in a Government Hospital or in a Medical College Hospital or any Board consisting of such Medical Officers to examine the injured and issue disability certificate indicating the degree and extent of the disability, if any, sustained as a result of the accident. 388. Method of recording evidence.- (1) Evidence of each witness including medial witness, if any, shall be recorded in writing by the Claims Tribunal in full, that is word by word, and evidence so written and signed by the Claims Tribunal shall form part of the record. (2) Where a Claims Tribunal is prevented by death, transfer or other cause from concluding the trial of a claims petition his successor may deal with any evidence taken down under sub-rule (1) as if such evidence had been taken down by him under that sub-rule and may proceed with the claims petition from the stage at which his predecessor left it. ## 7. This Court in Mini v. Abdul Nazar 2011 (1) KLT ## 90 held as follows: On receipt of such an application filed under R.387 of the Rules the Tribunal has to consider whether it is necessary to direct any Medical Officer in a Government Hospital or in a Medial College Hospital or any Board consisting of such Medical Officers to examine the injured and to issue disability certificate indicating the degree and extent of the disability, if any, sustained as a result of the accident. Going by the Apex Court's decision in Barium M.A.C.A. No.223 of 2009 6 Chemicals' case (AIR 1972 SC 591) the words 'considers it necessary' postulates that the authority concerned has thought over the matter deliberately and with due care and, it has been found necessary as a result of such thinking to pass the order. In fact, the very word “consider” connotes an active application of mind. It is the discussion on a matter in issue and assigning the reasons for arriving at the conclusions reached on the matter of discussion that would reflect the application of mind. 8. Whenever there arises any doubt or dispute with regard to the percentage of disability, the right method to assess the disability is to refer the injured to the Medical Board for getting expert opinion. In the absence of such reference, the disability assessed by the tribunal is illegal since the tribunal has no special knowledge with regard to the anatomy of human structure. The tribunal has to take 15% disability on the appellant. Since the age of the appellant is 22 years at the time of accident, 18 is the correct multiplier. Hence an amount of Rs.1,29,600/- (4000x12x18x15/100) is awarded for permanent disability. The learned tribunal already awarded an amount of Rs.48,960/- for Permanent partial disability resulting in loss of earning capacity. The M.A.C.A. No.223 of 2009 7 balance is Rs.80,460/-. No further increase is necessary under other heads. Accordingly, the appellant is entitled to get an additional amount of Rs.80,460/- (Rupees eighty thousand four hundred and sixty only) with 9% interest per annum from the date of petition till realisation with proportionate cost. The insurer is directed to satisfy the award within a period of thirty days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest per annum from the date of default. This M.A.C.A is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** / True Copy / NS P.A. To Judge