Mery Augusty v. Junaid R.K. & JuraiJ R.K. & Oriental Insurance Company Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **TUESDAY, THE 9TH DAY OF AUGUST 2016/18TH SRAVANA, 1938** **MACA.No. 2239 of 2011 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 920/2009 of M.A.C.T.,KOZHIKODE** ## **APPELLANT/PETITIONER:** **------------** **MERY AUGUSTY, W/O (LATE) AUGUSTY CHANAYIL HOUSE, P.O.KODANCHERY KOZHIKODE DISTRICT** ## **BY ADV. SMT.K.V.RESHMI** **RESPONDENTS/RESPONDENTS --------------** |**1.**|**JUNAID.R.K., S/O KUNHIMUHAMMED**| |---|---| ||**RAHMATH MANZIL, P.O. VAVAD**| ||**KODUVALLY, KOZHIKODE 673 572**| |**2.**|**JURAIJ R.K., S/O KUNHIMUHAMMED**| ||**RAHMATH MANZIL, P.O.VAVAD**| ||**KODUVALLY, KOZHIKODE – 673 572**| |**3.**|**ORIENTAL INSURANCE COMPANY LTD**| ||**DIVISIONAL OFFICE, PRAMOD BUILDING**| ||**CHEROOTTY ROAD, KOZHIKODE – 673 001**| ## **R3 BY SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **CR** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - **M.A.C.A.No.2239 OF 2011** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of August, 2016 ## **JUDGMENT** ## Jyothindranath, J. This appeal is filed against the award dated 1.06.2011 made in O.P.(MV)No.920/2009 on the file of the Motor Accidents Claims Tribunal, Kozhikode. The challenge is against the quantum of compensation awarded. The relevant facts for consideration of this appeal is as follows : A woman aged 60 years sustained injury in a motor vehicle accident occurred on 21.12.2008. She was a pedestrian and a motor bike bearing Reg.No.KL 11 U 1638 hit against the appellant/claimant. She was treated at Medical College Hospital, Kozhikode as an inpatient for a period of ten days. She moved a claim petition before the Tribunal claiming a total compensation of Rs.2 lakhs. The Tribunal awarded a total compensation of Rs.44,401/-. Aggrieved by the said award, this appeal is preferred. MACA No.2239/2011 2 2. When the appeal came up for hearing, the learned counsel for the appellant/claimant submitted before us that even though disability was assessed by the Medical Board, it was not considered by the Tribunal. It is the submission that 15% disability was assessed by the Board as she sustained a fracture on femur. It is also the submission that the compensation awarded on various heads are also very meagre and an intervention is inevitably invited. 3. The learned counsel appearing for the Insurance Company submitted before us that here is a case where just compensation has been awarded by the Tribunal. It is further highlighted that in the award itself, the Tribunal pointed out that even though there was a specific direction by the Tribunal for the appearance of the appellant/claimant, it was not complied with. The Tribunal declined to grant compensation for disability in the said circumstances. 4. After hearing the learned counsel on both sides, we have perused the award and documents in this case. It is seen from the award that Ext.C1 is the disability certificate issued by the Medical Board, wherein the disability is assessed as 15%. A perusal of the MACA No.2239/2011 3 proceeding sheet would reveal that there was a specific direction to the appellant to be present before the Tribunal on 27.05.2011. The said order was passed on 5.5.2011. The appellant remained absent on 27.05.2011 and thereupon, evidently the Tribunal suo motu reopened the evidence and ordered that Ext.C1 shall be discarded. 5. The point to be considered is that when a claimant was referred to a medical board and the disability was got assessed and the certificate issued therefor was marked as court document, whether the Court could order to discard the evidence even before hearing the case ? The disability certificate issued by the Medical Board is not the Tribunal while the certainly binding upon assessing just compensation. The Tribunal wanted to see the appellant to satisfy itself that the disability assessed by the Board is correct. Evidently, the injured/claimant disabled the Tribunal from getting satisfied with the assessment by remaining absent. In this context, the decision of a Full Bench of this Court in **Akhil v. Kerala State Road Transport Corporation ( 2015 (1) KLT 291 (F.B.)** assumes relevance. The Full Bench in paragraph 15 held as follows : MACA No.2239/2011 4 “There may be certain circumstances to summon the victim or the claimant before the Tribunal for verification of the alleged disability. In such circumstances, there is no bar for the Tribunal for summoning the injured/claimant invoking R.387.” Thus, it can be seen that invoking Rule 387 of the Motor Vehicle Rules, the Tribunal or Court can direct the victim or the claimant to be present before the Tribunal or court. Therefore, the direction was perfectly within the jurisdiction. Evidently, the said direction was not complied with. 6. _The question is whether the failure to appear despite such a direction can be the sole reason for refusing to consider a disability certificate issued by a Medical Board and to ignore the assessment made thereunder, in toto. But surely, the order reviewing the marking of the document without giving specific reason and further coming to a conclusion before passing the award to the effect that Ext.C1 is only to_ . _be discarded is not proper_ In this case it is seen that the appellant is MACA No.2239/2011 5 a senior citizen. At the time of the accident she was aged 60 years. The order of the Tribunal for appearance of the appellant was passed in the year 2011. The submission of the learned counsel for the appellant is that as is evident from the disability certificate, she is a disabled senior citizen and therefore the Tribunal should have given another opportunity for appearance instead of immediately reviewing the marking of the document and arriving at the decision to discard Ext.C1 certificate issued by the Medical Board. But then, there is nothing on record to show that an application to that effect was filed before the Tribunal. The accident occurred about 8 years back. It is a fact that medical board assessed the disability as 15%. The disability of the appellant was assessed by the Board on being referred from the Tribunal. _If the Tribunal not satisfied with the assessment, surely Tribunal can direct the claimant to be present. Thereafter Tribunal can either accept the disability assessed by the medical board or consider the functional disability following the dictum laid down by the Apex Court in_ _**Rajkumar v. Ajaykumar [ 2011 (1) KLT 620 (SC)].** Certainly, total rejection of such a certificate is not the way to deal_ MACA No.2239/2011 6 _with such a situation. Here is a case where the income is considered as the value of the service rendered by a house wife, that also a senior citizen for the reasons stated hereinafter. The service that will be rendered by a senior citizen will not be reduced in directly proportional ratio with respect to the disability caused. After perusing_ _the wound certificate, disability certificate and all other attending materials including the age of the claimant in this case, we are satisfied that here is a case where 8% disability can be taken for assessment purpose._ 7. The next aspect to be considered is regarding the income. The Tribunal considered Rs.2,000/- per month as her income. The case of the appellant is that atleast Rs.3,000/- should have been taken, as in the case of **Lata Wadhwa and others v. State of Bihar and others ( AIR 2001 SC 3218)** . As per the decision in **Lata's** case (supra), it can be seen that an income of Rs.3,000/- per month was considered in the case of an house wife belonging to the age group of 34-59 years. But at the very same time, for the house wives under the age group of 62 - 70 years, a sum of Rs.20,000/- per annum also was considered as MACA No.2239/2011 7 the value of services rendered to the family. It can be seen that, in this case, the appellant/claimant neither belongs to the age group of 59-70, nor that of 34-59. Under such circumstances, it will be only just and proper to consider Rs.2,500/- as the monthly income of the claimant for the purpose of calculation. Thus, the compensation is to be reassessed. 8. In this case, the Tribunal took only two months' period for assessing loss of income due to the treatment period. It is a case of fracture of femur and also where the claimant is an aged women. Under such circumstances, five months' period can be taken for assessment. Thus, the appellant would be entitled to get an additional sum of Rs.8,500/- ( 2500 x 5 - 4000). under the head of loss of earnings. 9. Towards transportation expenses, only a sum of Rs.1,000/ is seen awarded. Considering the totality of the case, we feel that an additional sum of Rs.1,000/-can be granted under the said head. It is accordingly awarded. Towards damage to clothing, Rs.500/- is seen awarded by the Tribunal. An additional sum of Rs.500/- is awarded MACA No.2239/2011 8 under the said head. 10. Towards bystander's expenses, only a sum of Rs.1500/- is seen awarded. The appellant was in the hospital for ten days. The accident occurred in the year 2008. If a sum of Rs.200/- per day is considered, she will be entitled to get an additional sum of Rs.500/under the head of bystander's expenses. The said amount is awarded. 11. We have already found that the monthly income of the appellant can be considered as Rs.2,500/- A disability of 8% can be considered for assessing compensation towards disability. Thus, loss due to disability will be Rs.16,800/- ( 2500 x 12 x 7 x 8%). The said amount is awarded. Considering the nature of the fracture sustained, place of fracture and further considering the age of the appellant/claimant, a sum of Rs.9,000/-can be awarded towards loss of amenities. It is awarded. Thus, the appellant/claimant is entitled to get a total enhanced compensation of Rs.36,300/-. The enhanced amount will carry interest @ 8% per annum from the date of petition till realization. The Insurance Company shall pay the amount within two months from the MACA No.2239/2011 9 date of receipt of a copy of this judgment, failing which the amount remaining to be paid will carry interest @ 9% per annum from the date of petition. There will be no order as to costs. ## **C.T.RAVIKUMAR, JUDGE** ## **K.P.JYOTHINDRANATH, JUDGE** sv. 10/08/2016