P. Alikutty v. Mumseer, M. Sulaiman & The National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 7[TH] DAY OF JULY 2022 / 16TH ASHADHA, 1944** ## **MACA NO. 1381 OF 2013** **AGAINST THE AWARD OP(MV) 988/2011 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER:** P.ALIKUTTY, AGED 53 YEARS, S/O.C.P POCKER, RESIDING AT PURAYIL HOUSE, KOZHIKODE. BY ADVS. SRI.V.S.CHANDRASEKHARAN SMT.LEKSHMI SWAMINATHAN ## **RESPONDENTS/RESPONDENTS:** 1 MUMSEER, AGE NOT KNOWN, S/O.MUHAMMED RESIDING AT 4/154, UNDODIYIL (H), KUNNAMANGALAM P.O, KOZHIKODE-673 571. 2 M.SULAIMAN, AGED 49 YEARS, S/O.KOYAKKUTTY, RESIDING AT MANNATHUVEEDU, PATHIMANGALAM, KUNNAMANGALAM P.O, KOZHIKODE-673 571. 3 THE NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, 2ND FLOOR, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE-673 006. BY ADV. SMT.P.A.REZIYA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING FINALLY HEARD ON 07.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.1381 of 2013** 2 ## **JUDGMENT** This appeal arises out of award dated 16.10.2012 in O.P.(M.V) No.988/2011, on the file of Motor Accidents Claims Tribunal, Kozhikode. The appellant herein is the original petitioner, where the original respondents before the Tribunal are the respondents. 2. Heard the learned counsel for the appellant as well as the learned Standing Counsel for the Insurance Company. 3. Brief facts of the case: According to the appellant, on 04.02.2011 at about 4:30 p.m., while the appellant was walking through the side of the Kunnamangalam- Koduvally road, he was hit down by a motorcycle, driven by the 2[nd] respondent in a negligent manner. The appellant sustained severe injuries and underwent treatment at MIMS Hospital, Kozhikode as an inpatient from 04.02.2011 to 07.02.2011. 1[st] respondent is the ## **M.A.C.A No.1381 of 2013** 3 RC owner of the vehicle and 3[rd] respondent is the insurer. On the above facts, an application under Section 166 of the Motor Vehicles act was preferred by the appellant before the M.A.C.T, Kozhikode claiming compensation to the tune of Rs.6,00,000/- from respondents 1 to 3. 4. The 1[st] and 2[nd] respondents were set ex- parte by the Tribunal. 5. The 3[rd] respondent, Insurance Company filed written statement denying negligence on the part of 2[nd] respondent while admitting policy of the offending vehicle. Quantum of compensation also was disputed. 6. The Tribunal marked Exts.A1 to A7 on the side of the appellant. No evidence let in by the respondents. 7. The Tribunal appraised the evidence and finally granted Rs.1,32,565/- as compensation along with 7% interest. 8. According to the learned counsel for ## **M.A.C.A No.1381 of 2013** 4 the appellant, the Tribunal fixed a lower amount as monthly income as against the claim of Rs.10,000/- on the assertion that the appellant was a driver earning Rs.10,000/-. He submitted that following the ratio in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.**_ : **(2011) 13 SCC 236,** Rs.8,000/- ought to have been fixed as the monthly income in this case. This submission is not disputed by the learned Standing Counsel for the Insurance Company. Therefore, Rs.8,000/- is fixed as the monthly income. 9. The next challenge is regarding the disability of the appellant. It is argued by the learned counsel for the appellant that as per Ext.A6 disability certificate issued by Dr.K.Kumaran Chettiyar, Associate Professor Ortho, Government Medical College, Kozhikode dated 01.07.2012, 27% disability was assessed in relation to the appellant. But the Tribunal ## **M.A.C.A No.1381 of 2013** **==> picture [7 x 9] intentionally omitted <==** reduced the same to 10%. According to the learned counsel, the disability as such should have been considered and the compensation to be worked out accordingly. 10. It is argued by the learned Standing Counsel for the Insurance Company that the disability shown in Ext.A6 is on higher side and the Tribunal rightly negatived the percentage as such, on the finding that certificate was issued by a doctor, who never treated the appellant and the appellant failed to produce the disability certificate issued by the doctor, who treated. Therefore, no increase in the percentage of disability is warranted in the facts and circumstances of this case. 11. While addressing the disability, I have perused Exts.A2 and A3. Ext.A2 is the copy of wound certificate. Ext.A3 is the discharge summary issued from MIMS Hospital, Kozhikode. The same would suggest that the appellant sustained comminuted fracture right tibia and **M.A.C.A No.1381 of 2013** 6 comminuted fracture left distal radius. It was stated in the discharge summary under the head, course in the hospital, that 'post operative period was uneventful. Wound clean. Check X ray shows good reduction and fixation. Patient was started physio for knee and hand. Advised bed rest.' Follow up advised on 16.02.2011. But no documents available to see any follow up or malunion or shortening of knee, which are narrated as the main reasons for assessing 27% disability as per Ext.A6. This is the context in which the Tribunal was not inclined to accept 27% disability, a marginally higher percentage. I do hold the view that the disability shown in Ext.A6 cannot be accepted as such since the same is not in consensus with the treatment thereof. However, having considered the multiple fractures and treatment, I am inclined to increase percentage of disability as 12% instead of 10% fixed by the Tribunal. The multiplier applied by the ## **M.A.C.A No.1381 of 2013** **==> picture [7 x 9] intentionally omitted <==** Tribunal is not in dispute. Therefore the 'loss of disability income' is recalculated as follows: 8,000 x 12 x 11 x 12% = 1,26,720/- Out of which, Rs.59,400/- was granted by the Tribunal. Thus, **Rs.67,320/-** more is granted under the head 'loss of disability income'. 12. Towards 'loss of earnings', the tribunal granted Rs.9,000/- @ Rs.4,500/- for two months. Considering the multiple fractures and treatment, I am inclined to grant 'loss of earnings' at Rs.4,000/- for a period of 8 months. Therefore, **Rs.23,000/-** more is granted under the head 'loss of earnings'. 13. The Tribunal granted Rs.15,000/- under the head 'pain and sufferings' and Rs.5,000/- under the head 'loss of amenities'. I am inclined to increase the same by **Rs.7,500/-** each, considering the multiple fractures and treatment. ## **M.A.C.A No.1381 of 2013** 8 14. In the result, this appeal is allowed. It is held that the appellant is entitled to get Rs.2,37,885/- as compensation out of which Rs.1,32,565/- was granted by the Tribunal and the balance amount of **Rs.1,05,320/-** (Rupees One Lakh Five Thousand Three Hundred and Twenty Only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the 3[rd] respondent, Insurance Company from the date of petition till the date of deposit or realisation. The Insurance Company is directed to deposit the amount in the name of the appellant within two months from today. On deposit, the appellant is entitled to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww