IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 322 of 2005()
1. BHASKARAN VADI, S/O. NARAYANAN,
... Petitioner
Vs
1. NATINOAL INSURANCE COMPANY LIMITED
... Respondent
For Petitioner :SRI.M.V.AMARESAN
For Respondent :SRI.P.JAYASANKAR
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :20/08/2009
O R D E R
K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ.
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M.A.C.A. NO: 322 OF 2005
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Dated this the 20th Day of August, 2009.
JUDGMENT
K. M. Joseph J.
The appellant is the claimant in a petition filed by the
petitioner under the Section 166 of the Motor Vehicles Act. As
against the original claim of Rs.3,00,000/-, and subsequently
amended claim of Rs.10,00,000/-, the Tribunal has awarded a
total compensation of Rs.1,65,150/-.
2. We heard the learned counsel for the appellant and the
learned counsel for the Insurance Company.
3. Learned counsel for the appellant, Sri. M. V. Amaresan
would submit that, the appellant, who was a driver suffered very
serious injuries. He was out of work for a long period. But he
has been given loss of earning only for one year. Secondly, he
contends that the income was fixed at Rs.1,500/- per month.
M.A.C.A . NO: 322 OF 2005 :2:
This is too low, he contends. He submits that there is evidence
in the form of Ext.A7 to show that he was earning Rs.4,000/-
per month. Thirdly, he would contend that though the certificate
of disability shows that he had suffered disability at 30%, the
Tribunal has taken disability only at 15%. He would further
contend that the Tribunal has erred in not granting any
compensation against the claim of Rs.9,000/- towards medical
bills.
4. The learned counsel for the appellant, would point out
that the appellant had to undergo surgeries and as a result of
which, the appellant had developed osteomylitis, which
condition prevented him from pursuing any vocation. The
compensation awarded is very meager, it is contended.
5. The learned counsel for the Insurance company
supported the award. He submitted that the amount awarded by
the Tribunal is reasonable.
6. The first question to be considered is to what is the
M.A.C.A . NO: 322 OF 2005 :3:
income of the appellant. The appellant was a driver by
profession. The accident took place in year 1996 (11.8.1996).
According to the appellant, his employer Dr. Girish was
examined as PW2 to prove the receipt of the income. We feel
that, we can safely fix the income of the appellant as Rs.1,800/-
per month.
7. The next question to be considered is the percentage of
disability. The doctor who issued the certificate was not
examined to prove the disability certificate, as such. But having
regard to the nature of injuries and after effects of the accident,
we can safely fix the disability at 20% instead of 15%.
8. On this basis, applying the multiplier of 16, which we
take for the reason, that we intend to award the appellant further
compensation in the form of loss of earning, though the
multiplier ought to have taken as 17 according to 2009 ACJ
1298 (Sarla Verma and others), and not 18, which is taken by
the Tribunal. The appellant would be entitled to disability
M.A.C.A . NO: 322 OF 2005 :4:
compensation of Rs.68,520/-, and after deducting Rs.48,000/-
already awarded, the appellant is entitled to for an amount of
Rs.20,520/- more. On the basis of the increased income we have
taken, the appellant would be entitled for Rs.3,600/- for one
year.
9. The next question is regarding the loss of earning. The
appellant has referred to the medical bills to show the nature of
injuries and the condition, which he sustained from the injuries.
In the nature of injuries, it is quite clear that the appellant have
suffered loss of earning for a period of more than one year. We
are inclined to accept the said version. We awarded loss of
earning for one more year. On this ground the appellant would
be entitled for an amount of Rs.21,600/- (Rs.1,800 x 2 ).
10. The next question is regarding granting of Rs.9,000/-
towards medical bills. The learned counsel for the respondent
points out that reasons have been given by the Tribunal for not
acting on the medical bills. They are as follows:
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“There is another receipt for Rs.9,100/- issued
by one Doctor. But the said receipt was not
marked in evidence, and the Doctor was not
examined to prove the receipt. Even otherwise
the receipt is not acceptable or admissible in
evidence because it is not a properly and
legally stamped receipt.”
We agree with the said reason and reject the contention.
Accordingly, this appeal is allowed and the appellant is
allowed to realise an amount of Rs.45,720/- more along with
interest of 7.5% from the date of petition till the date of realisation
from the respondents.
K. M. JOSEPH, JUDGE
M. L. JOSEPH FRANCIS, JUDGE
dl/