Dinesan P.T. v. Amina, Sirajudheen P.K. and The Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL WEDNESDAY, THE 4TH DAY OF APRIL 2018 / 14TH CHAITHRA, 1940 MACA.No. 695 of 2012 AGAINST THE AWARD DATED 30-06-2010 IN OP(MV) 1507/2007 of M.A.C.T.,KOZHIKODE APPELLANT/PETITIONER IN O.P.(MV): -------------------------------- DINESAN P.T., S/O.BALAN, MAKKANARI MEETHAL HOUSE, GURUVAYOORAPPAN COLLEGE P.O., IRINGALLOOR, KOZHIKODE. BY ADV.SRI.K.M.JAMALUDHEEN RESPONDENTS/RESPONDENTS IN O.P.(MV): ------------------------------------ ## 1. AMINA, W/O.HAMZA, PAINATT KODASSERY HOUSE, THEYYALAT, THANUR POST AND VIA, MALAPPURAM DISTRICT-676 302. ## 2. SIRAJUDHEEN.P.K, S/O.HAMZA, PAINATT KODASSERY HOUSE, THEYYALA, THANUR POST AND VIA, MALAPPURAM DISTRICT-676 302. ## 3. THE ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, P.B.NO.8, JYOTHI SUPER BAZAR, THODUPUZHA P.O., IDUKKI DISTRICT-685 584. R3 BY ADV. SRI.A.R.GEORGE BY SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-04-2018 ALONG WITH M.A.C.A. NO.859 OF 2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.Harilal, J.** ==================================== M.A.C.A.Nos.695 & 859/2012 ==================================== Dated this the 4[th] day of April, 2018. ## **JUDGMENT** 1.These appeals arose from the award dated 30.6.2010 passed in O.P.(MV)No.1507/2007 of the Motor Accidents Claims Tribunal, Kozhikode. MACA 695/2012 has been filed by the petitioner, challenging the inadequacy of the quantum of compensation, determined under various heads of claim. MACA 859/2012 has been filed by the third respondent insurance company, on the ground that the quantum of compensation, determined under various heads of claim, is exorbitant and disproportionate with the actual loss and sufferings of the petitioner. The Maca695&859/12 ## -:2:- parties are referred to as in the original petition. - 2.The above original petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the bodily injury suffered by the petitioner in a road traffic accident. According to the petitioner, at the time of accident, he was aged 38 years and he was an - 'A' class PWD contractor, by profession. He was getting a monthly income of Rs.9,000/- from the contract works. He claimed an amount of Rs.18,00,000/- as compensation. - 3.The third respondent insurance company opposed the claim, disputing the monthly income and the quantum of compensation claimed under various heads. After considering the evidence on record, the MACT passed the impugned award, Maca695&859/12 -:3:- granting Rs.11,98,902/- to the petitioner. The correctness and justness of compensation determined by the Tribunal are assailed in these appeals filed by the petitioner and insurance company. In MACA 695/2012, the appellant/petitioner contends that the quantum of compensation, determined under the heads, loss of earnings, bystander expenses and pain and sufferings, is inadequate and requires enhancement in view of the evidence on record. It is also contended that the monthly income determined by the Tribunal is low, in view of Ext.A15 series of income tax return. According to the learned counsel for the third respondent insurance company, the quantum of compensation, determined under the aforesaid heads of claim, is just and reasonable. So, there is no scope Maca695&859/12 ## -:4:- for interference, by way of enhancement, in these appeals. The learned counsel for the appellant insurance company in MACA 859/2012 contends that the degree of disability determined at 70% is excessive and the Tribunal has went wrong by taking the degree of disability, certified by the Medical Board, as such, without examining the Doctor or the claimant. MACA 859/2012 has been filed on this ground. - 4.In view of the arguments at the bar, the point to be considered is, whether the quantum of compensation, under various heads of claim, is just and fair? - 5.It is not disputed that the petitioner had undergone treatment for 65 days in hospital as an inpatient. Ext.A2, copy of wound Maca695&859/12 ## -:5:- certificate, Ext.A5 discharge summary and Ext.C1 medical report, would show that the injury sustained by the petitioner was a grievous injury. But, the Tribunal has granted compensation for loss of earnings for three months only. Having regard to the grievous nature of the injury and the disability arose therefrom, this Court is of the view that the period, for which the compensation for loss of earnings was granted, is very short. In the above view, the petitioner is entitled to get compensation for loss of earnings for at least five months. Hence, the petitioner is given Rs.45,000/- towards loss of earnings. So, the additional compensation payable under the above head is Rs.18,000/-. For the very same reason, this Court finds that the amount granted under Maca695&859/12 ## -:6:- the head, pain and sufferings, is also very low and the same would stand enhanced to Rs.30,000/-. The additional compensation payable under this head is Rs.15,000/-. - 6.As rightly pointed out by the learned counsel for the petitioner, bystander expenses was granted at the rate of Rs.100/- per day. This Court is of the opinion that the said amount is also inadequate, when considering the living expenses of a person per day. Therefore, the petitioner is entitled to get compensation for bystander expenses at the rate of Rs.150/- per day and the petitioner is given Rs.9,750/(150x65) under the said head. The additional compensation payable under the said head is Rs.3,350/-. Thus, the petitioner is given a total additional compensation of Rs.36,350/- Maca695&859/12 ## -:7:- (18,000 + 15,000 + 3,350). 7.The learned standing counsel for the third respondent insurance company vehemently contended that the Tribunal has went wrong by taking the degree of disability shown in disability certificate as such, without examining the Doctor, who issued the certificate or the petitioner to whom the certificate was issued. In _**United India Insurance Co.Ltd. v. Udayasinh Chandansinh Thakur & 2 ors.**_ **[2006 ACJ 2759],** it is held that the disability certificate issued by the Medical Board can be accepted in evidence, without examining the Doctor, who signed the disability certificate, for and on behalf of the Medical Board. 8.I have meticulously gone through the nature of Maca695&859/12 -:8:- injury shown in Ext.A2 wound certificate, Ext.A4 copy of discharge card, Ext.A5 copy of discharge summary, Ext.A10 CT scan report and Ext.C1 Medical Board report. The cumulative inference that can be drawn from the aforesaid documentary evidence is that the injury sustained by the petitioner was a grevious injury and he had undergone treatment as an inpatient in hospital for 65 days. I do not find any reason to doubt or disbelieve the degree of disability shown in Ext.C1 medical certificate. Therefore, the Tribunal is justified in relying on Ext.C1 disability certificate, without examining the Doctor, who signed the certificate, for and on behalf of the Medical Board. In the above view, the contention raised by the third respondent Maca695&859/12 -:9:- Insurance Company, challenging reliability of Ext.C1 disability certificate, would stand rejected. 9.In the above analysis the petitioner is given an additional compensation of Rs.36,350/-. Thus the total compensation payable to the petitioner is Rs.12,35,252/- (11,98,902 + 36,350). It is needless to say, the additional compensation also would carry interest, as stipulated by the Tribunal. The third respondent Insurance Company is directed to deposit the entire compensation with interest at the rate of 7% per annum, within a period of three months from today and the petitioner is allowed to withdraw the said amount, after paying court fee, if any. All other findings of the Tribunal would stand undisturbed and Maca695&859/12 ## -:10:- operative. 10. M.A.C.A. No.695/2012 is allowed and M.A.C.A. No.859/2012 is dismissed. All the pending interlocutory applications will stand closed. Sd/- **K.Harilal, Judge** sl. //True copy// P.S. To Judge