IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 297 of 2004()
1. BIJU KUMAR, S/O. KUTTAPPAN NAIR,
... Petitioner
Vs
1. P.BALACHANDRAN THAMPI,
... Respondent
2. THE DIVISIONAL MANAGER,
For Petitioner :SRI.S.V.PREMAKUMARAN NAIR
For Respondent :SRI.N.S.MOHAMMED USMAN
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :16/07/2009
O R D E R
K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ.
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M.A.C.A. NO: 297 OF 2004
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Dated this the 16th Day of July, 2009.
JUDGMENT
Joseph Francis J.
This appeal is filed by the petitioner in OP MV 463/01 on the
file of MACT Neyyattinkara. Respondents 1 and 2 are the
respondents 1 and 2 in that OP which was filed under Section 166
of the Motor Vehicles Act. The allegation is that on 5.12.00 the
petitioner was traveling in a motor Cycle bearing No.KL 01 T
4637 as a pillion rider through the Utchakkada – Poovar road. The
motor cycle was ridden by one Shaji. When they reached near
Thiraviyam hospital at Uchakkara, an ambassador car bearing No;
KLV-5599 owned and driven by 1st respondent came from opposite
direction dashed against the motor cycle, as a result of which the
petitioner fell down and sustained serious injuries. The accident
was due to the rash and negligent driving of 1st respondent who
was driving the ambassador car. Second respondent was the
insurer of the car. The petitioner claimed Rs.5,00,000/- as
compensation. In the Claims Tribunal the first respondent
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remained exparte. Second respondent filed written statement
admitting the policy of the car and contends that the accident was
not due to the negligence of first respondent and compensation
claimed is excessive.
2. In Claims Tribunal PW1 was examined and Exts.A1 to
A21 were marked. The Claims Tribunal on considering the
evidences allowed the petition and the petitioner was allowed to
get compensation of Rs.1,51,890/- together with interest at the rate
of 9% per month from the date of petition till the date of realisation
from first and second respondent. Second respondent is directed to
pay the compensation. Being dissatisfied with the quantum of
compensation the petitioner filed this appeal.
3. Heard the learned counsel for the appellant and learned
counsel for the second respondent.
4. The Medical records would show that due to the
accident the appellant sustained following injuries:
“lacerted wound 2 x 3 (L) frontal region, fractures of
facial bone, antero lateral posterior wall nasal bones on
(L) maxillary sinus, nasal septum, ethmoic air cells,
lateral to medial walls (L) orbit, medial walls of (R)
orbit, walls of frontal sinus with depression to (L)M.A.C.A. NO: 297 OF 2004
: 3 :
zygomatic, arch, fracture on the (L) maxilla, fracture on
the (L) zygoma, (R) globe is smaller in size with hazy
hyperdense vitreous, loss of vision on ( R ) eye due to
retinal detachment. The petitioner was treated as
inpatient in the Medical college hospital,
Thiruvananthapuram from 5.12.2000 to 14.12.2000,
from 8.10.2001 to 20.10.2001 in the Jewhar hospital,
Madurai from 9.12.2001 to 22.12.2001 and from
28.8.2002 to 2.9.2002 in the Aravind Eye hospital,
Madhurai.”
5. Learned counsel for the appellant submitted that the
accident occurred on 5.12.2000 and the appellant underwent
treatment from that day onwards and the appellant produced
Ext.A11 to Ext.A17 series of medical bills for Rs.77,968/- But the
Claims Tribunal awarded only Rs.28,000/- towards medical
expenses stating that the other bills are prior to 9.12.01. The
appellant produced Ext.A11 series medical bills for Rs.10,130/-
Ext.A12 series of medical bills for Rs.1,328/- Ext.A13 series of
medical bills for Rs.3,114/-, Ext.A14 series of medical bills for
Rs.6,909/-, Ext.A15 series of medical bills for Rs.29,300/- Ext.A16
medical bills for Rs.6,296/- and Ext.A17 series of medical bills for
Rs.6,689/-. Thus in total the appellant produced medical bills for
Rs.63,766/- As the appellant underwent treatment from
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15.12.2000 onwards, there is no justification for rejecting the
medical bills prior to 9.12.01. Therefore we are of the view that
the appellant should be allowed to get Rs.35,766/- more towards
medical expenses.
6. Ext.A19 is the salary certificate issued from the
Postmaster Neyyattinkara dated 30.1.2003 in which it is stated that
the salary of the appellant, who is working as Postal Assistant is
Rs.7,297/-. But the appellant had not produce any salary certificate
to show that the monthly salary of the appellant on the date of
accident. Therefore, the Claims Tribunal fixed the monthly salary
on date of the accident as Rs.5,000/- Ext.A20 is the leave
certificate showing that due to the accident the appellant availed
earned leave for 106 days, half pay leave for 110 days and
commuted leave for 4 days. The Claims Tribunal awarded
Rs.27,390/- towards compensation for loss of earning. The
appellant has not produced any document showing that the loss of
earning is more than the amount awarded by the Claims Tribunal.
Therefore the appellant is not entitled to get any more amount
towards loss of earning.
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7. Ext.A9, Disability certificate shows that
“Due to retinal detachment with loss of vision
in ( R) eye, the petitioner has 40% permanent
partial disability. In the accident, the
petitioner sustained depression fracture of (L)
fronto asal complex and zygomatic arch
including lateral wall of orbit, superior
orbital margin and frontal bone, depression
fracture of nasal bone and loss of vision on
(R) eye due to retinal detachment.”
8. PW1 admits that even now he is attending his job and
getting salary and that he will retire at the age of 60 years. The age
of the appellant at the time of the accident was 30 years. The
Claims Tribunal found that permanent partial disability affected
the earning power of the appellant only after his retirement and the
Claims Tribunal assessed at Rs.2,000/- as monthly income after
retirement and applying 5 as the multiplier, awarded a sum of
Rs.48,000/- as compensation for loss of earning power.
Considering the facts and circumstances of the case we are of the
view that it is only just and reasonable to fix the monthly income
after retirement as Rs.2,500/-. Calculating on that basis, the
appellant is entitled to Rs.12,000/- more towards loss of earning
M.A.C.A. NO: 297 OF 2004
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power. The Claims Tribunal has awarded Rs.25,000/- as
compensation for loss of amenities in life and Rs.20,000/- towards
compensation for pain and suffering, which are according to us
very reasonable. Therefore the appellant is entitled to get
Rs.47,766/- more as compensation.
Accordingly, this appeal is allowed in part and the appellant
is allowed to realise Rs.47,766/- more together with interest at the
rate of 7.5% interest per month from the date of petition till the
date of realisation from the second respondent.
K. M. JOSEPH, JUDGE
M. L. JOSEPH FRANCIS, JUDGE.
dl/
