Divyanjali v. Renkesh Jayan, Viju Zacharia and The New India Assurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH FRIDAY, THE 26TH DAY OF AUGUST 2016/4TH BHADRA, 1938 MACA.No. 2225 of 2008 ( ) -------------------------AGAINST THE AWARD IN OPMV 495/2002 of ADDL. MOTOR ACCIDENTS CLAIMS TRIBUNAL, ALAPPUZHA DATED 18-08-2007 APPELLANT/PETITIONER: --------------------------- DIVYANJALI, D/O.ANANDAVALLI, AGED 26 YEARS, PATTERIPARAMBIL, THIRUVAMBADI WARD, ALAPUZHA. BY ADVS.SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK RESPONDENTS/RESPONDENTS: ---------------------------------- 1. RENKESH JAYAN, S/O.SREEDHARAN, DEVASWAMCHIRA VEEDU, SANATHANAM WARD, ALAPPUZHA. 2. VIJU ZACHARIA, CHAKKEZHATHU PUTHENVEEDU MEZHUVELI PO., PATHANAMTHITTA DISTRICT. 3. THE NEW INDIA ASSURANCE CO.LTD., ALAPUZHA BRANCH. (R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT, VIDE ORDER DATED 22.3.2013 IN I.A.NO.828/2013 IN M.A.C.A.NO.2225/2008) R3 BY ADV. SRI.P.K.BABU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------- M.A.C.A.No.2225 of 2008 -------------------------------Dated 26[th] August, 2016 ## **JUDGMENT** ## **Ravikumar, J.** This appeal is preferred against the judgment and award dated 18.8.2007 in O.P.(M.V)No.495 of 2002 passed by the Motor Accidents Claims Tribunal, Alappuzha. The appellant herein was the petitioner therein. She sustained injuries in a motor vehicle accident that occurred on 19.10.2001 at about 1.25 p.m. On that day, while she was riding her bicycle along Pazhaveedu - Thiruvambady road the offending vehicle which is a motor cycle bearing Reg.No.KL-Z/A 6268 ridden by the first respondent, hit on her bicycle. Consequently, she fell down and sustained injuries. It is seeking compensation for the injuries sustained by the appellant in the said accident that the above mentioned claim petition has been filed. Before the Tribunal, no oral evidence was adduced by both the parties. No documentary evidence was also adduced by the respondents. On the side of the appellant Exts.A1 to A15 were got marked. The Tribunal passed the impugned award for a total compensation of 95,500/- along with interest at the₹ rate of 6% per annum from the date of petition till realisation, after M.A.C.A.No.2225/2008 2 appreciating the evidence on record and the rival contentions. It is seeking enhancement of the compensation that the captioned appeal has been preferred. 2. We have heard the learned counsel for the appellant as also Sri.P.K.Babu, the learned counsel appearing for the 3[rd] respondent. 3. In the accident, the appellant sustained the following injuries, going by Ext.A3 wound certificate:- “1. Abrasion over the right elbow. 2. Pain over right knee. 3. Dislocation of patella (R).” She had been an inpatient for a total period of 24 days. She had also undergone two surgeries and the last one was conducted in the year 2005. Evidently, at the time of the accident the appellant was a student. 4. The learned counsel for the appellant contended that the Tribunal had not considered in detail all relevant factors for the purpose of computing the compensation payable for permanent disability. It is M.A.C.A.No.2225/2008 3 the submission that a consolidated amount of 15,000/- was granted₹ thereunder without fixing any percentage of permanent disability. It is the further contention that Ext.A10 disability certificate certifying 25% permanent disability was ignored by the Tribunal while computing the compensation under the said head. The learned counsel for the appellant further contended that compensation granted by the Tribunal under the heads `extra nourishment', `bystanders expenses', `loss of classes', `pain and suffering', `loss of amenities' etc. are also on the lower side and as such, they require upward modification. Per contra, the learned counsel for the 3[rd] respondent contended that the Tribunal cannot be found fault with, in not acting upon Ext.A10 by accepting the percentage of disability certified thereunder as the appellant had not legally proved Ext.A10 disability certificate. Ext.A10 is not a disability certificate issued by a duly constituted Medical Board and that apart, the doctor who issued the same was not examined, it is submitted. It is further contended that the Tribunal had adequately compensated the appellant on all heads. In short, no appellate interference is called for. 5. Having heard the rival contentions and perusing the impugned award and the evidence on records, we are of the view that the award of the Tribunal invites limited interference on certain counts. M.A.C.A.No.2225/2008 4 At the same time, while considering the grievance of the appellant regarding the non-acceptance of the entire percentage of disability certified under Ext.A10 we are of the view that there is no force in the said contention. The learned counsel for the appellant attempted to canvass the position that non-examination of the doctor, who issued Ext.A10 cannot be a reason for not accepting the entire percentage of disability certified under Ext.A10, relying on a decision of the Division Bench of this Court in **Karunakaran** v. **Abdul Rasheed (2015 (4) KLT 465)** . In the said decision, this Court held; “ There is no hard and fast rule that in all cases, invariably, the doctor should be examined in order to accept the permanent disability certified by him in respect of a person sustained injuries in a motor accident. If the Tribunal is satisfied with the reasons stated by the doctor and the permanent disability certified by him, there is no need for calling him to the Tribunal and examining him for accepting the disability certified by him in the disability certificate.” In this case, obviously, the Tribunal was not fully satisfied with Ext.A10 disability certificate. Still, taking note of the fact that there was dislocation of patella and she had undergone two surgeries the Tribunal granted an amount of 15,000/- under the said₹ head. Taking note of the fact that the injury sustained is only dislocation of patella and Ext.A10 certificate was not issued by a duly M.A.C.A.No.2225/2008 5 constituted Medical Board and further that the doctor who issued Ext.A10 was not examined, we are of the view that the Tribunal cannot be found fault with in not acting upon Ext.A10 by accepting the certification regarding permanent disability thereon, in toto. At any rate, we do not find any reason to interfere with the compensation of ₹ 15,000/- granted for permanent disability by the Tribunal. At the same time, we are of the view that the appellant is entitled to get enhanced compensation under certain other heads. Towards `damage to clothing' the Tribunal granted only 250/-. The nature of the₹ injuries would indicate that the dresses worn by the appellant must have been damaged. Hence, we are inclined to grant an additional amount of 750/- under that head. Towards `extra nourishment' and₹ `bystanders expenses' the Tribunal granted only ₹ 500/each. According to us, the amount granted under the said heads is too meagre. As noticed hereinbefore, altogether the appellant had been an inpatient for a period of 24 days. Hence, considering the year of the accident we are of the view that the appellant is entitled to get an amount of 1,900/- additionally towards `extra nourishment' upon₹ calculating the same at the rate of 100/- per day. At the rate of₹ ₹ 150/- per day the appellant is entitled to get an amount of 3,100/-₹ additionally towards `bystanders expenses'. The said amounts are M.A.C.A.No.2225/2008 6 granted. As noticed hereinbefore, the appellant was a student at the time of the accident. The nature of the injuries would reveal that she must have definitely lost classes. Taking note of the fact that the appellant was aged 20 years and that she was a student, we are inclined to grant 5,000/- reckoning such aspects. Since the Tribunal₹ has already granted 1,250/- the appellant is entitled to get an₹ additional amount of 3,750/- on that score. Towards `pain and₹ suffering' the Tribunal granted 20,000/-. We have already adverted₹ to the injuries sustained by the appellant in the accident as revealed from Ext.A3 wound certificate. Evidently, the appellant had also undergone two surgeries. Taking note of the nature of the injuries and the aforesaid aspects we are of the view that 5,000/- can be granted₹ additionally under that head. Towards `loss of amenities in life and enjoyments' the Tribunal granted only 10,000/-. Evidently, though₹ the Tribunal has granted 15,000/- as consolidated amount for₹ `permanent disability', taking note of the nature of the injuries and the fact that the appellant had undergone two surgeries, we are inclined to grant an amount of 10,000/- additionally towards `loss of amenities₹ in life and enjoyments'. M.A.C.A.No.2225/2008 7 In the light of the discussion as above, the appellant is entitled to get an amount of 24,500/-, over and above the amount₹ granted by the Tribunal under the impugned award. The additional compensation of 24,500/- will carry interest at the rate of 8% per₹ annum from the date of petition till realisation. The third respondent insurance company is directed to pay the additional compensation along with interest at the aforesaid rate, within a period of one month from the date of receipt of copy of this judgment. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS