Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944 MACA NO. 769 OF 2012 OPMV 1032/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM APPELLANTS/PETITIONERS 1 MICHAEL AGED 62 YEARS S/O MARKOSE, KUNNIL VEEDU, KARITHURA, CHAVARA P.O., KOLLAM. 2 MARGRET W/O MICHAL, KUNNIL VEEDU, KARITHURA, CHAVARA P.O., KOLLAM. BY ADV SRI.THYPARAMBIL THOMAS THOMAS RESPONDENTS/RESPONDENTS 1 B. GEETHA D/O MURALEEDHARAN NAIR, GEETHANJALI, PATTAZHY P.O., KOLLAM. 2 BEJOY S.NAIR S/O SASIDHARAN NAIR, YESHWANTPURAM, BANGALORE. 3 THE MANAGER H.D.F.C CHOBB INSURANCE CO. LTD., KOCHI. BY - SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.BADHARUDEEN. J. -------------------- M.A.C.A.769 of 2012 ----------------------- Dated : 31st August, 2022
JUDGMENT
1. Award dated 7.10.2011 in OP(MV) No.1032 of 2007 on the file of Motor Accidents Claims Tribunal, Kollam, is under challenge in this appeal. Respondents herein are respondents before the Tribunal.
2. Heard Sri.Thyparambil Thomas Thomas, the learned counsel for the appellants and Sri.A.R.George, the learned counsel appearing for the 3rd respondent/Insurance Company.
3. Brief facts of the case : It is alleged by the
appellant that at 4.30 pm on 19.7.2005, while the 1st petitioner/1st appellant was standing on the eastern side of Kollam-Alappuzha National Highway road, a car bearing Registration No. KL-02/T 8489, driven by the 2nd respondent came in a rash and negligent manner and knocked down the 1st petitioner. As a result of it, the 1 st petitioner fell down on the road and sustained grievous injuries. He was admitted at the Bishop Benziger Hospital, Kollam. Accordingly the appellants pressed for grant of Rs.5 Lakhs as compensation.
4. Respondents 1 and 2 were set ex parte by the Tribunal.
5. The 3rd respondent entered appearance and filed
written statement. 3rd respondent disputed various claims while admitting the policy. Question of negligence, entitlement of compensation as well as quantum claimed were disputed.
6. The Tribunal recorded the evidence of PW1 and PW2 and marked Exts.A1 to A8. No evidence let in by the respondents. Finally the Tribunal granted Rs.6,82,000/- as against claim of Rs.5,00,000/-.
7. The appellants are aggrieved in the matter of
fixation of disability by the Tribunal. The appellants sustained the following injuries as borne out from Ext.A7 : Pupils semi dilated - sluggish, lacerated wound left parietal region Lacerated wound left forearm upper and middle third.
8. Ext.A8 is the discharge summary issued from Bishop Benziger Hospital.
9. The appellant produced Ext.A12 disability
certificate showing 60% disability. In order to prove Ext.A12, PW2 its author was examined. Though during chief-examination the Doctor supported Ext.A12, his evidence during cross- examination was that as per the discharge summary, the patient was advised to have physiotherapy and rehabilitation. During further cross-examination, PW2 had given evidence that he was not in a position to say the present condition of the person and in Ext.A12 the nature of disability either as a whole body disability or as limb disability is not specifically shown. PW2 also gave evidence that he had not adopted any accepted mode to assess the disability. Thus what actually is the percentage of the disability is not established by the evidence of PW2, as PW2 failed to justify 60% disability by describing its nature as permanent or partial, whole body or limb and functional or occupational.
10. This is the context in which the Tribunal
accepted 25% disability. On perusal of treatment records at par with the disability by giving emphasis to evidence of PW2, 25% disability accepted by the Tribunal requires no increase in a case where the Tribunal was gracious enough to grant compensation to the tune of Rs.6,82,000/- out of which Rs.1,75,000/- was towards loss of amenities.
11. It is noticed that the multiplier applied by
the Tribunal for granting compensation is not correct. Ext.A17 is the copy of Admission Register of the injured and 16.8.1949 is the Date of Birth shown therein. The date of accident is 19.7.2005. Therefore, he was aged 55 years at the time of accident and not completed 56 years, though the Tribunal found so. Hence, the multiplier is 11. Accordingly, the loss of disability income requires re-calculation applying the multiplier 11, and it is reworked as 9928 x 12 x 25 x 11/100 = 327624. When deducting Rs.268056/-, the amount of disability income would come to Rs.59,568/-.
12. Since the Tribunal granted reasonable compensation under the other heads, no further increase is liable to be granted.
13. In the result, the appeal stands allowed in
part. Rs.59,568/- (fifty nine thousand five hundred and sixty eight) is granted towards enhanced compensation with the same percentage of interest granted by the Tribunal from the date of petition till the date of deposit or realisation.
14. Since the appellants have not paid Court fee
for the enhanced amount, appellants are bound to pay Rs.5,960/- as additional court fee. Therefore, the Insurer is directed to deposit Rs.5,960/- in the name of M.A.C.T., Kollam by a separate cheque, towards additional Court fee.
15. The Insurer shall deposit the balance amount in the name of the 1st appellant within a period of two months from today. On deposit, the 1 st appellant is allowed to release the same. Sd/- A.BADHARUDEEN, Judge Mrcs