Girish v. Muhammed Basheer & United India Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 27[TH] DAY OF OCTOBER 2021 / 5TH KARTHIKA,** ## **1943** ## **MACA NO. 108 OF 2012** **AGAINST THE AWARD IN OPMV 752/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD** ## **APPELLANT/PETITIONER:** GIRISH AGED 25 YEARS, S/O.KUMAR, AIKYATHIL VEEDU, AMBALAVATTOM, PANAMANNA, OTTAPALAM TALUK. BY ADVS. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI ## **RESPONDENTS/RESPONDENTS:** 1 MUHAMMED BASHEER, S/O.KUNHALAN, CHAKKALAMKUNNATHU VEEDU, THRIKKADEERI, OTTAPALAMTALUK, PIN: 679 502. 2 THE UNITED INDIA INSURANCE COMPANY LIMITED BRANCH OFFICE, PARK HOUSE, ROUND NORTH, THRISSUR, PIN: 680 020. BY ADVS. SRI.K.RAJESH SUKUMARAN SRI.RAJAN P.KALIYATH. SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.108 of 2012** 2 ## **JUDGMENT** This appeal is at the instance of the petitioner in O.P.(M.V) No.752/2007 on the file of the Motor Accidents Claims Tribunal, Ottapalam. This appeal has been preferred aggrieved by the Award dated 27.01.2011, whereby the Tribunal awarded Rs.4,09,850/- as compensation as against the claim of Rs.5,70,000/-. 2. The respondents herein are the respondents in the Original Petition. 3. Precisely, the case of the appellant/ petitioner is that he met with an accident on 12.02.2007 at about 8:45 A.M. at Kuttikode on Cherupulassery – Ottapalam public road. After having sustained very serious injuries, the petitioner approached the Tribunal and claimed compensation for an amount of Rs.5,70,000/-. 4. The 2[nd] respondent – Insurance Company filed a written statement disputing negligence ## **M.A.C.A No.108 of 2012** **==> picture [7 x 9] intentionally omitted <==** and the attributing negligence on the part of the rider of the motor cycle. Plea of nonjoinder of parties was raised while admitting the policy. Recovery Right was also claimed on the allegation that the driver had no valid Driving Licence at the time of accident. 5. The Tribunal went on trial. PWs 1 to 4 examined and Exts.A1 to A12 marked on the side of the appellant. 6. After having appraised the evidence, the Tribunal granted Rs.4,09,850/- as compensation with interest of 7% per annum. The above award is under challenge before this Court on the ground of inadequacy. 7. At the outset, the learned counsel for the appellant as well as the Insurance Company would submit that in order to alleviate the dispute with regard to the percentage of disability sustained by the appellant, the appellant was referred to Medical Board by ## **M.A.C.A No.108 of 2012** 4 this Court and a report was obtained. On perusal of the file, Disability Certificate issued by the Medical Board of Government Medical College, Thrissur on 17.11.2016 is appended. The same would show that the appellant's whole body disability is 43.2% (inclusive of ophthal and neuro). Both sides agree to 43.2% disability as per the Medical Board certificate. In view of the Medical Board certificate, showing disability as above, I am inclined to accept the same to resolve the controversy in the matter of disability income. 8. While canvassing increase in the award already granted by the Tribunal, the learned counsel for the appellant urged that though the petitioner who was aged 21 years, being a welder, claimed Rs.4,500/- as the monthly income, the Tribunal fixed the monthly income at Rs.3,000/- and the petitioner is entitled ## **M.A.C.A No.108 of 2012** ## 5 to Rs.4,500/- as such. 9. This submission is formally opposed by the learned counsel for the Insurance Company while conceding the ratio in _**Ramachandrappa**_ ## _**v. Manager, Royal Sundaram Alliance Insurance**_ _**Company Ltd.**_ : **(2011) 13 SCC 236** . Following the ratio in _**Ramachandrappa's**_ case (supra), the income of a coolie worker is fixed as Rs.4,500/- during the year 2004. Therefore, there is justification on the part of the appellant to confine the monthly income at Rs.4,500/- in this case where the accident was during 2007. Therefore, I am inclined to refix the monthly income at Rs.4,500/- per month. Therefore, disability income required to be re-calculated thus, 4,500 x 12 x 18 x 43% = 4,17,960/- Out of which, Rs.2,26,800/- was granted by the Tribunal. So the remaining **Rs.1,91,160/-** ## **M.A.C.A No.108 of 2012** 6 is entitled as enhanced compensation under this head. 10. It is argued by the learned counsel for the appellant further that the Tribunal granted only six months' 'loss of earnings' though the appellant sustained very serious injuries led to 43% disability certified by the Medical Board. Ext.A6 is the copy of wound certificate issued from Moulana Hospital, Perinthalmanna. The injuries noted are “depressed fracture (L) tempero parietal bone and contusion forehead”. CT scan head shows “depressed fracture Lt. tempero parietal region SDH bleeding with sinuses”. Ext.A7 is the discharge card issued from the same hospital. The date of admission was on 12-22007 and the date of discharge was on 12-42007. The diagnosis noted as “severe head injury left parietal depressed fracture, cervical spine, cord injury, left fronto ## **M.A.C.A No.108 of 2012** 7 parietal SDH + SAH + Skull base fracture + CSF Rhinorrhiea + left optic nerve injury. 11. This submission appears to be convincing though the learned counsel for the Insurance Company opposed the enhancement of 'loss of earnings' in excess of six months. Having gone through the seriousness of the injuries led to 43%, 'loss of earnings' can be granted for a period of 9 months. Therefore, the 'loss of earnings' entitled by the appellant would come to Rs.4,500 x 9 = Rs.40,500/-. Out of which Rs.18,000/- was granted by the Tribunal and the balance **Rs.22,500/-** more is granted under the head of 'loss of earnings'. 12. The learned counsel for the appellant canvassed increase under the head 'pain and sufferings' as well as 'loss of amenities'. Going by the award, Rs.20,000/- was granted under the head 'pain and sufferings' as ## **M.A.C.A No.108 of 2012** 8 against the claim of Rs.25,000/- and Rs.10,000/- was granted under the head 'loss of amenities' as against the claim of Rs.25,000/-. Though the learned counsel for the Insurance Company justified grant of the said amounts under these heads, the same, appears to be on lower side at par with the injuries and the treatment underwent by the appellant. In view of the matter, I am inclined to increase **Rs.5,000/-** more under the head 'pain and sufferings'. Under the head of 'loss of amenities', I am inclined to grant **Rs.15,000/-** more. Thus, the petitioner is entitled to get additional compensation of **Rs.2,33,660/-** (Rupees Two Lakhs Thirty Three Thousand Six Hundred and Sixty Only). Thus, the total compensation entitled by the petitioner is Rs.6,43,510/-. 13. In the result, this appeal is allowed. It is held that the appellant is entitled to ## **M.A.C.A No.108 of 2012** 9 get Rs.6,43,510/- as compensation out of which Rs.4,09,850/- was granted by the Tribunal and the balance amount of Rs.2,33,660/- is granted as enhanced compensation with the same rate of interest awarded by the Tribunal payable by the 2[nd] respondent Insurance Company from the date of petition till the date of deposit or realisation. 14. The appellant valued the claim at Rs.5,70,000/- and court fee payable is calculated as Rs.5,000/-. In view of grant of Rs.73,510/- in excess of the claim, the appellant is bound to deposit Rs.736/- as additional court fee. The Insurance Company is directed to deposit Rs.736/- as additional court fee by a separate cheque in favour of M.A.C.T. 15. The remaining amount shall be deposited in the name of appellant within two months. On deposit, the appellant is entitled 10 ## **M.A.C.A No.108 of 2012** to release the same. It is specifically ordered further that the right of recovery granted in favour of the Insurance Company by the Tribunal after depositing the amount as directed is granted to the Company in relation to the enhanced compensation with accrued interest thereof also. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww