High Court Kerala High Court

Muhammed Rafi N.P vs Biju on 20 November, 2009

Kerala High Court
Muhammed Rafi N.P vs Biju on 20 November, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 495 of 2008()


1. MUHAMMED RAFI N.P.,
                      ...  Petitioner

                        Vs



1. BIJU, S/O. BALAN,
                       ...       Respondent

2. PRAKASAN, S/O. GOPALAN,

3. THE ORIENTAL INSURANCE CO. LTD.,

                For Petitioner  :SRI.K.M.JAMALUDHEEN

                For Respondent  :SRI.VPK.PANICKER

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :20/11/2009

 O R D E R
                     M.N. KRISHNAN, J.
                  ...........................................
                   M.A.C.A.No.495 OF 2008
                 .............................................
          Dated this the 20th day of November, 2009

                        J U D G M E N T

This is an appeal preferred against the award of the

Claims Tribunal, Kozhikode in OP(MV)No.502/2002. The

claimant sustained injuries in a road accident and he has

been awarded a compensation of Rs.4,000/=. The Tribunal

has given the right of recovery to the insurance company

from the owner on satisfaction of the award. Before me only

the appellant and the insurance counsel had appeared and I

am proceeding to dispose of the matter as follows:

2. Three documents were produced before the Tribunal

as Exts.A1 to A3 of which Ext.A1 is the FIR, Ext.A2 is the

wound certificate and Ext.A3 is the medical prescription. I

find that the Tribunal was not prepared to accept the

endorsement in the wound certificate regarding fracture of

cervical neck of the humerus. I am afraid that it may not be

correct to suspect everything unless there is basis for the

same. The National Hospital at Kozhikode is a reputed

private hospital wherein the claimant was admitted

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immediately after the accident. The indication did show that

he had swelling and tenderness over the right shoulder. He

was advised to take X-ray of the shoulder and it revealed

fracture of the cervical neck of humerus. He was treated as

an outpatient. I do not find any suspicious circumstance in

the document to suspect the correctness of the fracture

which was found by radiological examination. It is true that

the court should have been summoned if there was any

doubt for anybody regarding the correctness of the same.

But nobody has chosen to do that and the wound

certificate is prepared in hospital as per the Government

order and it has got sanctity attached to it and the

responsible person has signed the wound certificate as well.

So, I do not further elaborate. I accept the case in the

wound certificate regarding the fracture of the cervical neck

of humerus. Then I proceed to decide the compensation.

3. It is stated that the young man was aged 18 years

and even if notional income of Rs.1,250/= is taken, he would

have been deprived from doing any work for a period of 6

to 8 weeks especially for the fact that it was his right

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humerus that has been affected. I grant Rs.2,500/= towards

loss of earnings. Towards medical and all other expenses

which are incidental, I award a sum of Rs.1,000/=. Towards

pain and sufferings, I award a sum of Rs.5,000/= and the

fracture of the humerus would have certainly caused him

temporary loss of amenities for a period of 6 to 8 weeks for

which I award Rs.2,000/= thereby entitling the claimant to

have a total compensation of Rs.10,500/=, out of which

Rs.4,000/= has been granted and therefore, he is entitled to

an additional compensation of Rs.6,500/=. The Tribunal has

awarded only 6% interest which is inadequate and as per the

decisions of the Hon’ble Supreme court a reasonable interest

of 7.5% can be granted.

4. Therefore, the MACA is partly allowed and the

claimant is awarded an additional compensation of

Rs.6,500/= with 7.5% interest on the said sum from the date

of the petition till realisation. The claimant is also entitled to

interest at the rate of 7.5% for the amount already awarded.

The insurance company on satisfaction of the award so

ordered is entitled to get reimbursement of the said amount

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from the owner of the vehicle by execution of the same

award.

Disposed of accordingly.

M.N. KRISHNAN, JUDGE

cl

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