Shamsudheen v. Priyesh and K. Vijayan and United India Insurance Company 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 26TH DAY OF SEPTEMBER 2017/4TH ASWINA, 1939 MACA.No. 2488 of 2013 () ------------------------OPMV 569/2009 of M.A.C.T., MANJERI ## APPELLANT(S)/PETITIONER: ---------------------------------------- SHAMSUDHEEN S/O.KUNHIMOHAMMED, THARAYIL HOUSE, UMMATHOOR, KODUR P.O., MALAPPURAM DISTRICT. BY ADVS.SRI.P.VENUGOPAL (1086/92) SMT.T.J.MARIA GORETTI RESPONDENT(S)/RESPONDENTS: ---------------------------------------------- 1. PRIYESH, S/O.MURALEEDHARAN, ARAMANA PUTHAN VEEDU, VALLIKUNNU, CHUNGATHARA P.O., MALAPPURAM DISTRICT-679334. 2. K.VIJAYAN, S/O.PADMANABHAN NAIR, KOTTEKOT HOUSE, PALLIKUTH P.O., CHUNGATHARA, MALAPPURAM DISTRICT-679334. 3. UNITED INDIA INSURANCE COMPANY LTD. BRANCH OFFICE, A.M.BUILDING, P.B.NO.5, HOSPITAL ROAD, NILAMBUR P.O., MALAPPURAM DISTRICT-679329. R-R3 BY ADV. SRI.RAJAN P.KALIYATH R BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - M.A.C.A. No.2488 of 2013 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of September 2017 ## JUDGMENT ## **B Sudheendrakumar J.,** The appellant is the claimant in O.P.(M.V.) No.569 of 2009 on the files of the Motor Accidents Claims Tribunal, Manjeri. 2. The appellant sustained injuries in a road traffic accident, which occurred on 1.7.2008 at about 3.30 p.m. While the appellant was driving a motor cycle along the National Highway, a jeep came from the opposite direction and hit the motor and as a against cycle M.A.C.A. No.2488 of 2013 2 consequence, the appellant sustained injuries. He was immediately taken to the hospital and treated there as inpatient. 3. The tribunal awarded a total amount of Rs.2,67,605/- as compensation in connection with the injuries sustained by the appellant. 4. We have heard the learned counsel for the appellant and the learned counsel for the third respondent. 5. Ext.X1 is the certificate issued by the Medical Board, which would show that the appellant sustained 35% of disability in connection with the accident. The tribunal did not accept the disability certificate issued by the Medical Board. The tribunal also did not state any reason for not having accepted Ext.X1 disability certificate. We M.A.C.A. No.2488 of 2013 **==> picture [7 x 9] intentionally omitted <==** have gone through Ext.X1 disability certificate and we find that Ext.X1 is a certificate issued by the Medical Board. The reasons are also stated in Ext.X1 for having assessed the disability at 35%. In view of the above reasons, we are inclined to accept Ext.X1 and take the disability of the appellant as 35%. The appellant claimed that he is a Sales Executive in a private shop earning Rs.4,000/- per month. The tribunal had taken only Rs.3,000/- as the notional income of the appellant. Since the accident was in the year 2008, we are inclined to accept the amount of Rs.4,000/as the monthly income of the appellant. The appellant claimed that he was aged 25 years. However, no document had been produced by the appellant before the tribunal to prove the date of birth of the appellant. Therefore, we take M.A.C.A. No.2488 of 2013 **==> picture [7 x 9] intentionally omitted <==** 26 years as the age of the appellant. Therefore, the multiplier to be used for calculating the disability must be 17 as per the decision of the Apex Court in Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802 (SC)]. Thus, the appellant is entitled to an amount of Rs.2,85,600/- (4,000x12x17x35/100) as compensation towards disability. It is clearly stated in paragraph 12 of the award that the tribunal had awarded an amount of Rs.10,000/- towards disfigurement and not for disability. The tribunal did not award any compensation for the disability sustained by the appellant. The appellant sustained disabled fracture of distal radius on right side, fracture and dislocation of right shoulder joint, subdural haemorrhage, mid-line shift and diffuse brain injury in the M.A.C.A. No.2488 of 2013 **==> picture [7 x 9] intentionally omitted <==** accident. The appellant was treated by open reduction and internal fixation with nail. Considering the nature of injuries sustained by the appellant, we are of the view that the appellant had to take rest for five months. Therefore, the appellant is entitled to an amount of Rs.20,000/towards loss of earning. The tribunal awarded an amount of Rs.12,000/- towards loss of earning and partial loss of earning together. Subtracting the above amount, the appellant is entitled to an amount of Rs.8,000/- as additional compensation under this count. The appellant had undergone treatment as inpatient in the hospital for 70 days. Therefore, the appellant is entitled to an amount of Rs.14,000/- towards by-stander expenses. The tribunal awarded Rs.3,500/- under the said count. Therefore, the M.A.C.A. No.2488 of 2013 6 appellant is entitled to an additional amount of Rs.10,500/under this count. Towards extra nourishment, we are inclined to grant an additional amount of Rs.7,000/- to the appellant. Towards damage to clothing, we are inclined to grant an additional amount of Rs.750/- to the appellant. Towards pain and suffering, the tribunal awarded only Rs.13,000/-. Considering the nature of injuries sustained by the appellant, as is revealed from Exts.A5 to A8 and Ext.X1, we are inclined to grant an additional amount of Rs.17,000/- to the appellant under the said count. Considering the nature of injuries, we are inclined to grant an additional amount of Rs.15,000/- as compensation towards loss of amenities. Thus, the appellant is entitled to an amount of Rs.3,43,850/- as additional compensation in M.A.C.A. No.2488 of 2013 **==> picture [7 x 9] intentionally omitted <==** connection with the injuries sustained by the appellant. The above amount carries interest at the rate of 8% per annum from the date of petition till the date of realisation. The third respondent, being the insurer of the vehicle, is directed to deposit the amount of compensation with interest before the tribunal, within two months from the date of receipt of a copy of this judgment. The tribunal is directed to release the amount to the appellant only after deducting the balance court fee. In the result, this appeal stands disposed of as above. **Sd/- C.T.RAVIKUMAR, JUDGE** ## **Sd/- B.SUDHEENDRA KUMAR, JUDGE** _dl/27.9.2017_ _// True Copy //_ _PA to Judge_