Muhammed Basheer v Sugathan, Pradeep P.S. and Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR TUESDAY, THE 14TH DAY OF NOVEMBER 2017 / 23RD KARTHIKA, 1939 MACA.No. 1936 of 2011 OPMV 3944/2003 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR APPELLANT(S)/APPELLANT MUHAMMED BASHEER S/O HAMSA, VATTIPARAMBIL HOUSE, KAIPURAM WEST, NEDUNGOTOOR ROAD, VIA. NADUVATTOM, PALAKKAD DISTRICT. BY ADV.SRI.P.V.CHANDRA MOHAN RESPONDENT(S): 1. SUGATHAN, 13/765,KIZHAKKENCHERY, ALATHUR,PALAKKAD DISTRICT- 678 549. 2. PRADEEP .P S/O RADHAKRISHNAN, PATHIYIL HOUSE, PUTHIYANKAM P.O, ALATHUR, PALAKKAD DISTRICT- 678 549 3. THE ORIENTAL INSURANCE CO.LTD. IIND FLOOR, T.D. BUILDING, P.B NO. 158, ROUND WEST, THRISSUR 680001. BY ADV. SRI.VPK.PANICKER BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-11-2017,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR, & B. SUDHEENDRA KUMAR, JJ.** ------------------------------------------------- ## **M.A.C.A. No. 1936 of 2011** ------------------------------------------------Dated this the 14[th] day of November, 2017 ## **JUDGMENT** **Ravikumar, J.** The injured petitioner in O.P. (MV) No. 3944 of 2003 on the files of the Motor Accidents Claims Tribunal, Thrissur, comes up in appeal seeking enhancement of quantum of compensation. As per the award passed thereon, the appellant was granted a total compensation of Rs. 79,500/- as against the claim of Rs. 1,73,500/-. M.A.C.A. No. **1936 of 2011** -2- 2. We have heard the learned counsel for the appellant and also the learned counsel appearing for the 3[rd] respondent. In view of the absence of dispute regarding the cause of the accident as also the liability of the 3[rd] respondent to indemnify the insured owner of the offending vehicle, the sole question to be decided is whether or not the appellant is entitled to enhanced compensation. 3. The learned counsel for the appellant contended that the Tribunal had gone wrong in fixing the monthly income. In the claim petition it was stated that the appellant was running a tea shop at Coimbatore and was getting a monthly income of Rs. 7500/-. However, it is M.A.C.A. No. **1936 of 2011** -3- evident that he had not adduced any evidence to substantiate such contentions. When that be so, the Tribunal cannot be found fault with in fixing the monthly income notionally for calculation purpose. However, the question is whether the fixation of the monthly income as Rs. 2500/- invites interference ? In that regard, it is to be noted that the appellant was aged only 29 years at the time of the accident and the accident had occurred on 8-62003. Taking into account such aspects, we are of the view that, it is only reasonable to fix the monthly income of the appellant as 4,500/- notionally for calculation purpose. 4. The learned counsel for the petitioner contended M.A.C.A. No. **1936 of 2011** -4- that the Tribunal had also committed an error in not assessing the extent of disability incurred by the appellant due to the injuries sustained in the accident, by taking into account Ext. A17 disability certificate. Ext.A17 is the disability certificate issued by an individual doctor. While considering the same, it is only inevitable to refer to the decision of the Hon'ble Apex Court in **Rajkumar v. Ajay Kumar [2011 (1) KLT 620 SC].** Admittedly, the disability certificate issued in this case is not the one issued by a duly constituted Medical Board. In such circumstances, mere production of such a disability certificate would not be sufficient to prove disability going by the decision in **Rajkumar** (supra). In such cases, to prove the same, the doctor who had issued the same, after M.A.C.A. No. **1936 of 2011** -5- examining the person concerned or who had treated and issued the same, ought to have been examined. In this case, the doctor who issued Ext. A17 disability certificate was not examined. In such circumstances, the disinclination shown by the Tribunal in accepting Ext.A17 disability certificate, cannot be said to be an illegality or irregularity warranting interference, in the light of the decision in **Rajkumar** (supra). In the circumstances, we do not find any reason to interfere with the refusal to grant compensation for permanent disability or for loss of earning power. The Tribunal had fixed the period for calculating compensation for loss of earning as eight months and granted an amount of Rs. 20,000/- thereunder. In the accident in question, the appellant sustained certain M.A.C.A. No. **1936 of 2011** -6- serious injuries going by Ext. A11 wound certificate, Ext. A12 discharge card and Ext.A13 discharge summary. It would go to show that he had sustained deep abrasion on left ankle, and PCL avulsion injury on right knee with intra articular fragment. Evidently, as part of the treatment Arthroscopy of right knee and open reduction and internal fixation with SS wire, were done. POP was also applied. He had several reviews going by Ext.A13. Taking into account the nature of the injuries sustained, their impact as also the period of treatment, it is only reasonable to fix the period for the aforesaid purpose as ten months. We do so. Based on the fixation of the monthly income as Rs. 4500/- and the period of loss of earning as ten months, the appellant would be entitled to get an compensation of M.A.C.A. No. **1936 of 2011** -7- Rs. 25,000/- additionally. The appellant was granted only an amount of Rs. 12,000/- towards compensation for pain and sufferings and only an amount of Rs. 4,000/- towards loss of amenities. Taking into account the nature of the injuries, it is evident that he must have endured excruciating pain. Hence, we are inclined to grant an amount of Rs. 12,000/- more towards pain and suffering. The aforesaid circumstances would also suggest that the appellant must have been deprived to enjoyment of life for quite long time. Hence, we are also inclined to grant an amount of Rs. 10,000/- additionally towards loss of amenities. Towards damage to clothing, the Tribunal has granted only an amount of Rs. 300/- as against the claim of Rs. 500/-. We are inclined to grant an amount of Rs. 200/- M.A.C.A. No. **1936 of 2011** -8- more thereunder. Towards extra nourishment, an amount of Rs. 500/- was granted by the Tribunal. The appellant had been an inpatient for a period of 10 days and therefore, we are inclined to grant an amount of Rs. 250/more thereunder. 5. In the light of the re-assessment made by us, the appellant is entitled to a total additional compensation of Rs. 47,450/-, it is awarded. The said additional compensation will carry interest at the rate of 8% per annum from the date of petition till realisation. The 3[rd] respondent is directed to deposit the said amount along with interest thereon within one month from the date of receipt of a copy of this judgment. M.A.C.A. No. **1936 of 2011** -9- In the result, this appeal stands disposed of as above. There will be no order as to costs. **Sd/- C.T. RAVIKUMAR, JUDGE.** **Sd/- B. SUDHEENDRA KUMAR, JUDGE** . ani/14/11/