Shamsudeen v. B. Sathyan Prayaar South and The Oriental Insurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 24[TH] DAY OF JANUARY 2024 / 4TH MAGHA, 1945** ## **MACA NO. 2367 OF 2010** **AGAINST THE AWARD DATED 28.05.2009 IN OP(MV) NO.294/2005 OF** **MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM** ## **APPELLANT/PETITIONER:** SHAMSUDEEN, S/O KHADARKUNJU AGEE 54 YEARS,KATTAYYATHU,KIZHAKKATHIL,, PALLISSERICKAL, SASTHAMCOTTA BY ADV SRI.V.PHILIP MATHEW ## **RESPONDENT/RESPONDENTS:** 1 B.SATHYAN PRAYAR SOUTH, ALUMPEEDIKA(OWNER AND DRIVER OF, MOTOR CYCLE KL-2-T-1718)PIN-690547 2 THE ORIENTAL INSURANCE COMPANY LTD. M/S.ORIENTAL INSURANCE CO.LTD,KOLLAM, REP.BY THE BRANCH MANAGER, KULAKKAL BRANCH, ALAPPUZHA BY ADV P.JACOB MATHEW **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 2367 of 2010 2 ## **JUDGMENT** The appellant was the petitioner in O.P(M.V) No. 294/2005 on the files of the Motor Accidents Claims Tribunal, Kollam. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 28.03.2005. According to him, the accident occurred when the motorcycle on which he was pillion riding, collided with another motorcycle bearing registration No.KL-2/T 1718, ridden by the 1st respondent. The said vehicle was owned by the 1st respondent himself and was insured with the 2nd respondent. 2. According to the appellant, he was 50 years old at the time of the accident, and was earning an amount of Rs.3,000/from his business conducted by him. It is claimed that he sustained serious injuries, which resulted in physical disablement. The claim petition was submitted in such circumstances. 3. The 2[nd] respondent filed a written statement admitting the policy for the motorcycle involved, but they raised a contention that the 1st respondent was riding the motorcycle M.A.C.A No. 2367 of 2010 **==> picture [7 x 9] intentionally omitted <==** without a valid driving licence. The quantum of compensation was also disputed by them. 4. The evidence in this case consists of oral testimony of PW1, the appellant himself, and as documentary evidence Ext.A1 to A15 were marked. The disability certificate issued by the Medical Board attached to the District Hospital Kollam was marked as Ext.C1. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 1st respondent in riding the motorcycle and being the insurer; the 2nd respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.4,12,000/- and the said amount was directed to be deposited by the 2nd respondent with interest at the rate of 7.5% per annum from the date of petition till realisation. This appeal is submitted in such circumstances seeking enhancement of compensation. 5. Heard, Sri.V.Philip Mathew, the learned counsel for the appellant and Sri. P.Jacob Mathew, the learned counsel appearing for the 2[nd] respondent. 6. The only question involved in this case is as to whether any enhancement of compensation is to be granted or not. The M.A.C.A No. 2367 of 2010 4 learned counsel for the appellant points out that the amount awarded by the Tribunal under various heads, particularly under the head of disability, was grossly inadequate. 7. On the other hand, the learned counsel appearing for the 2nd respondent opposes the said contention by highlighting that the Tribunal has awarded a reasonable amount and no interference is required. 8. I have carefully gone through the records. The appellant sustained the following injuries in the accident, as is discernible from Ext.A6. “1) Pain and deformity (L) knee and (L) leg. 2) Lacerated wound 10cmx2cmx3cm (L) knee. 3) Comminuted fracture both bones (L) leg and fracture (L) femur.” Ext.C1 is the Disability certificate issued by the Medical Board, wherein the percentage of disability certified was 22%. However, the Tribunal did not accept the percentage of disability as certified therein because of the reason that, none of the Doctors who were members of the Medical Board were examined before the Tribunal. However, I am of the view that, the said finding of the Tribunal was not legally sustainable, in the light of **Raj Kumar vs. Ajay** M.A.C.A No. 2367 of 2010 5 **Kumar & Another** [2011 (1) SCC 343]. When the disability was certified by a panel of competent doctors, the tribunal should not have scaled down the percentage of disability mentioned therein unless serious discrepancies were made in the assessment. It was also held in the said decision that it was not necessary to examine the Doctor to prove the disability certificate in all the cases. In such circumstances, I do not find any justification for reducing the percentage of disability certified in Ext. C1, merely because the Doctor was not examined. Accordingly, I deem it appropriate to accept the percentage of disability certified therein, which was 22%. 9. The next aspect relates to the monthly income. The appellant claimed the monthly income to be Rs.3,000, which appears to be reasonable in the facts and circumstances of the case. However, the tribunal accepted only Rs.2,500. Therefore, the assessment can be made by taking the monthly income as Rs.3,000/-. Thus, when assessing the compensation with the above-revised criteria, the amount of compensation for disability would come to Rs.87,120/- (3,000 x 12 x 11 x 22/100). The M.A.C.A No. 2367 of 2010 6 amount already awarded by the Tribunal is Rs.59,400/- and therefore, the additional amount would come to Rs.27,720/-. 10. The next aspect is the compensation for loss of earnings. The tribunal awarded compensation under this head for a period of 6 months, which appears to be reasonable. Therefore, in the light of the revision of monthly income, a further sum of Rs.3,000/- is awarded. 11. Another head which requires consideration is compensation for pain and suffering. The amount awarded under this head was Rs. 25,000/-. It is seen from Ext.A7, A8, A9, A10 and A11 that the appellant had undergone inpatient treatment for a total period of 58 days, in five spells spread over from the date of the accident till 15.12.2008. This would indicate that the appellant was compelled to avail prolonged treatment consequent to the injuries sustained. The said injuries resulted in physical disability, which was certified as 22% as well. Therefore, I am of the view that the amount awarded by the tribunal towards pain and suffering was on the lower side. Hence, a further sum of Rs.20,000/- is awarded under the said head. M.A.C.A No. 2367 of 2010 7 12. The next aspect relates to the compensation for loss of amenities and the amount awarded by the Tribunal is Rs.10,000/-. Considering the serious nature of the injuries, prolonged treatment and also the disability suffered by the appellant, I deem it appropriate to grant a further sum of Rs.20,000/- under the said head. Thus, the total compensation is determined as Rs.70,720/(27,720 + 3,000 + 20,000 + 20,000). In the result, this appeal is allowed. The award dated 28.05.2009 passed by the Motor Accidents Claims Tribunal, Kollam, in O.P.(M.V) No.294/2005 is hereby modified by granting an additional compensation of Rs.70,720/- (Rupees seventy thousand seven hundred and twenty only) and the said amount shall be deposited by the 2[nd] respondent with interest at the rate as ordered by the Tribunal and with proportionate cost within a period of three months from the date of receipt of a copy of this judgment. However, it is clarified that, as per order dated 26.11.2021, this court, held that, the appellant shall not be entitled interest for the additional compensation, if any, granted in the appeal, pertaining to the period from 30.11.2010 to 26.11.2021, as the appellant failed to take steps to serve notice M.A.C.A No. 2367 of 2010 **==> picture [7 x 9] intentionally omitted <==** on the respondents, the 2[nd] respondent shall be at liberty to exclude the said period while computing the interest on the additional compensation. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk