Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM MONDAY, THE 31ST DAY OF DECEMBER 2012 10TH POUSHA 193 MACA.No. 2186 of 2007 ( ) ------------------------- OP (M.V.) 2721/2001 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,THRISSUR APPELLANT(S)/APPELLANT/PETITIONER:: ---------------------------------- RAJESH, S/O. PRABHAKARAN NAIR, KIZHUVEETTIL HOUSE, PUTHUR, THRISSUR. BY ADV. SRI.DILIP J.
AKKARA RESPONDENT(S)/RESPONDENTS:: --------------------------- 1. SHABU ANTONY, KAVUNGAL HOUSE, KUTTIKKADU P.O., CHALAKUDY.
2. JOHNSON, S/O. PAILI, PAREKKADAN HOUSE, KUNNIKADU DESOM, PARIYARAM CHALAKUDY.
3. NATIONAL INSURANCE CO. LTD., AMBIKA ARCADE, M.G. ROAD, THRISSUR. BY ADV. SRI.M.A.GEORGE FOR R3 BY ADV. SRI.P.V.BABY BY ADV. SRI.A.N.SANTHOSH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ds S. SIRI JAGAN & C.K. ABDUL REHIM, JJ.
------------------------------------------------- M.A.C.A No. 2186 OF 200.------------------------------------------------- DATED THIS THE 31st DAY OF DECEMBER, 2012 JUDGMENT
Siri Jagan, J: The claimant in OPMV No.2721/2001 before the Motor Accidents Claims Tribunal, Thrissur has filed this appeal claiming enhanced compensation for injuries suffered by him on account of an accident which happened on 03-09- 2000, while he was travelling in a motor cycle as a pillion rider on account of tempo van bearing registration not KL- 8B 285.driven by the 2nd respondent and owned by the 1st respondent insured with the 3rd respondent hitting the motor cycle. The petitioner suffered the following injuries. "Fracture right femur shafts, fracture right fibula and lisfrunis fracture dislocation left foot." The Tribunal awarded compensation on various heads as follows: MACA No.2186/2007 -2- Loss of earning : Rs. 8,000/- Expense for transportation : Rs. 1,000/- Expense for extra nourishment : Rs. 1,000/- Damages to clothing : Rs. 500/- Expense for treatment : Rs. 2,000/- Expense for bystander : Rs. 1,600/- Compensation for pain and suffering: Rs.15,000/- Compensation for discomfiture : Rs. 8,000/- Compensation for loss of amenities: Rs.10,000/- ---------------- Total Rs.47,100 ======= 2. The petitioner contends that petitioner had suffered serious permanent disability on account of the accident, which has not been considered for awarding compensation. According to the petitioner two claims were filed for the same cause of action. One before Irinjalakuda Tribunal and the other before the Thrissur Tribunal. Some documents were produced in the Irinjalakuda Tribunal. In view of the claim before the Thrissur Tribunal, the claim before the Irinjalakuda Tribunal was dismissed. There was some delay in obtaining the documents from the MACA No.2186/2007 -3- Irinjalakuda Tribunal and producing the same before the Thrissur Tribunal. Although the disability certificate was produced one day before the case was posted for evidence, the documents did not reach the bench in time. Consequently the same could not be marked and the Tribunal took up the matter for hearing. Although petitioner filed a petition to re-open the evidence, the same was dismissed on the ground that the same was belated. The petitioner submits that the petitioner did not prove the disability certificate appropriately in time not because of latches on the part of the petitioner, but on account of circumstances totally beyond his control. Therefore according to the counsel for the petitioner the disability certificate should also be taken into consideration for awarding compensation and the compensation should be enhanced accordingly.
3. This is opposed by the counsel for the insurance company. It is pointed out that the petitioner did not even give oral evidence in support of his contentions. As such the MACA No.2186/2007 -4- belated production of the disability certificate cannot be taken into account for the purpose of awarding compensation is the contention raised.
4. We have considered the rival contentions in detail. The disability certificate has been issued by Dr. K. Balagopal, Assistant Professor and Orthopaedic Surgeon, Medical College Hospital, Thrissur. The petitioner produce the same along with I.A. No.6903/2006 before the Tribunal seeking re-opening the evidence to mark the said document. The Tribunal dismissed the same as belated. We are of the opinion that the Tribunal ought to have given the petitioner an opportunity to introduce the disability certificate in evidence in view of the circumstances explained by him, which we have narrated above. We are also of the opinion that it would be unjust to drive the petitioner again to the Tribunal to prove the disability certificate for awarding compensation in respect of the same also. Therefore we are inclined to mark the disability certificate in evidence in this appeal allowing the I.A filed MACA No.2186/2007 -5- by the petitioner before the Tribunal. Accordingly the disability certificate would stand marked as Exhibit-A10.
5. The said certificate is issued by the Assistant Professor and Orthopaedic Surgeon of Medical College Hospital, Thrissur, who treated the petitioner which certifies a total disability of 19.7% for the petitioner on account of the injuries sustained in the accident in question. The disability certificate is quite elaborate giving all the details of the injuries suffered by the petitioner and treatment undergone by him. As such we are inclined to accept the percentage of disability certified therein as the permanent disability suffered by the petitioner. The petitioner's monthly salary fixed by the Tribunal was Rs.2,000/. He was aged only 21 years at the time of accident. Therefore the correct multiplier would be 17. Calculating on that basis, the petitioner is entitled to compensation of Rs.80,376/-, towards permanent disability. The insurance company is directed to pay the said amount of Rs.80,376/- in addition to what has already awarded by MACA No.2186/2007 -6- the Tribunal. The said amount will carry interest @ 9% per annum from the date of the petition till realisation. The insurance company is directed to deposit the same within two months. The appeal is disposed of as above. Sd/- S. SIRI JAGAN, JUDGE. Sd/- C.K. ABDUL REHIM, JUDGE. AMG True copy P.A to Judge