IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 51 of 2003()
1. M.K.VIMAL KUMAR, S/O.LAXMANAN,
... Petitioner
Vs
1. M.P.AYOOB, S/O.THARIKUTTY,
... Respondent
2. U.K.SHAJI, S/O.KUNHIRAMAN, 26 YEARS,
3. UNITED INDIA INSURANCE CO.LTD.,
For Petitioner :SRI.P.M.PAREETH
For Respondent :SRI.M.A.HAKIM SHAH
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :04/12/2008
O R D E R
J.B.KOSHY & THOMAS P. JOSEPH, JJ.
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M.A.C.A.No.51 of 2003
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Dated this the 4th day of December, 2008.
JUDGMENT
Thomas P.Joseph, J.
Appellant, a bus operator by occupation and aged 35 years at the
relevant time while traveling in the car driven by the second respondent, owned
by the first appellant and insured with the third respondent met with an accident
on 1.7.1996 resulting in serious injuries. He alleged that the accident occurred
when due to the rash and negligent driving of the second respondent, the car hit
the road divider. As against a claim of Rs.7.5 lakhs, Tribunal awarded
Rs.22,950/- as compensation. Claiming that compensation awarded is meager,
appellant has come up in appeal.
2. Heard counsel for the appellant and contesting respondent.
3. Point for consideration is whether the appellant is entitled to
get enhanced compensation.
4. Perused the relevant records.
5. The point.
Ext.A2 is the copy of wound certificate and Ext.A4 is the
discharge card. Ext.A3 is the out patient card issued to the appellant from
Aravind Eye Hospital, Coimbatore. It is revealed that appellant suffered injury to
the right eye and at the time of admission there was bleeding from right ear. He
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was initially brought to a hospital at Kannur wherefrom he was referred to the
Medical College Hospital, Kozhikode on the same day. Ext.A4 is the discharge
card issued from that hospital. Appellant suffered deep lenier injury in the right
eye. Appellant underwent inpatient treatment for 17 days. Ext.A5 is the
disability certificate issued by the Medical Board certifying disability of the
appellant at 40%. Tribunal did not act upon Ext.A5 for the reason that though,
PW2, a member of the Medical Board was examined to prove Ext.A5, appellant
did not take steps to examine the ophthalmologist who was a member of the
Medical Board. Another reason to reject Ext.A5 is that appellant was not
referred to the Medical Board from the Tribunal instead, he voluntarily appeared
before the Medical Board. PW2 stated that the right eye ball was shrunk and
there was no perception of light of that eye but he had not stated in Ext.A5 that
the disability is permanent. Therefore, compensation was not awarded for
disability and consequent loss of earning power. Tribunal did not also accept the
claim of the appellant that as bus operator, he was earning Rs.18,000/- per
annum. Tribunal has taken his income as Rs.1,250/- per month and awarded
Rs.3,750/- for loss of earnings for three months. Rs.12,000/- was awarded for
pain and suffering and Rs.5,000/- was awarded for compensation for loss of
enjoyment of amenities of life. Rs.1,700/- was awarded as bystanders expenses
and Rs.500/- was awarded as transportation charges. Learned counsel
contended that compensation awarded on all counts are meager.
6. It is not very much in dispute that appellant was operating bus
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service during the relevant time. Though he did not produce sufficient proof to
prove his monthly income, considering his age and occupation and also
considering the wages payable to unskilled labourers in Kerala during the
relevant time, we are inclined to fix the monthly income of the appellant as
Rs.2,500/-. We therefore, fix the monthly income of the appellant accordingly.
7. Evidence on record shows that appellant sustained injury to the
right eye. Ext.A5 states that appellant is visually handicapped and that there
was no perception of light in the right eye. Medical Board assessed the
percentage of disability at 40%. It is true that it is not stated in Ext.A5 that
disability is permanent. At the same time, it has also to be noted that the finding
that there was no perception of light in the right eye. There is no evidence to
show that there is possibility of said defect being repaired in future. We are
persuaded to think that the reasons stated by the Tribunal to reject Ext.A5 are
not satisfactory, considering the nature of injuries proved by Ext.A2 and the fact
that appellant had undergone treatment for defect of vision and injury to the right
eye at Aravind Eye Hospital as proved by Ext.A3. We therefore, accept Ext.A5
and the recommendation contained therein. Since appellant was aged 35 years
at the time of accident, 16 has to be taken as the multiplier. Compensation
payable for disability and consequent loss of earning power comes to
Rs.1,92,000/- [(Rs.2,500x12x40x16)/100]. Appellant is entitled to get that
amount.
8. It is in evidence that appellant was initially taken to a hospital at
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Kannur and on the same day he was referred to the Medical College Hospital,
Kozhikode. Even after discharge from the Medical College Hospital, he had to
attend that hospital for review, five times. Only Rs.500/- was awarded for
transportation charges. Considering the number of visits to the Medical College
Hospital, the distance from Kannur to Kozhikode and the possible transportation
charges, we award a further sum of Rs.1,000/- on that count.
9. Appellant was inpatient at Medical College Hospital for 17 days.
Thereafter he had to attend Aravind Eye Hospital. Even after discharge from
that hospital he required the assistance of a bystander for some time in view of
his visual impairment. Only Rs.1,700-/- (@ Rs.100/- for 17 days of inpatient
treatment alone) was awarded towards expenses of bystander. We award a
further sum Rs.2,000/- on that count, that being just and fair.
10. Though, it is contended by learned counsel that compensation
awarded on other counts are also low, we are not inclined to accept that
contention considering the amount awarded on those counts and the total
amount to which appellant is found entitled. Thus, additional compensation
payable to the appellant comes to Rs.1,95,000/- which will carry interest at the
rate of 7.5% per annum from the date of application till realization.
Resultantly, this appeal is allowed in part. Over and above the
compensation awarded by the Tribunal, appellant is allowed to realize
Rs.1,95,000/- (Rupees One lakh and ninetyfive thousand only) by way of
additional compensation with 7.5% interest per annum from date of application
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till realization from respondents 1 to 3, jointly and severally. Third respondent
being the insurer of the offending vehicle is directed to deposit that amount in the
Tribunal. On such deposit, appellant is allowed to withdraw the same.
J.B.KOSHY,
JUDGE.
THOMAS P.JOSEPH,
JUDGE.
cks
MACA No.51/2003
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J.B.KOSHY &
THOMAS P.JOSEPH, JJ.
M.A.C.A.No.51of 2003
JUDGMENT
4th December, 2008.