IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 414 of 2003()
1. MOHANDAS, S/O.MAMMU, KALIKANDAN HOUSE,
... Petitioner
Vs
1. K.D.ROY, S/O.DEVASSY KUTTY, KURUTHY
... Respondent
2. LEKSHMI DEVI, XXVI, THRISSUR
3. THE UNITED INDIA INSURANCE COMPANY,
For Petitioner :SRI.K.A.SALIL NARAYANAN
For Respondent :SRI.P.SANKARANKUTTY NAIR
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :17/07/2009
O R D E R
C .N. RAMACHANDRAN NAIR &
C. K. ABDUL REHIM, JJ.
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M.A.C.A. Nos. 414 & 415 OF 2003
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Dated this the 17th day of July, 2009
JUDGMENT
Abdul Rehim, J.
Claimant in OP (MV) Nos. 728 of 1996 and 849 of 1996 before
the Motor Accidents Clims Tribunal, Irinjalakuda, is the appellant in
these appeals. O.P.(MV) No. 728 of 1996 is filed seeking
compensation on account of personal injuries sustained by the
appellant whereas O.P.(MV) No. 849 of 1996 is filed seeking
compensation on account of damage sustained to his car. The accident
occurred when a van collided with the car of the appellant, which he
was driving.
2. Dealing with the claim for damage sustained to the car, the
Tribunal found that the appellant had already claimed compensation
from his own insurer and an amount of Rs. 1,95,000/- was allowed.
According to the appellant, the car was insured for an amount of Rs.
4,49,000/- and it was a case of total damage. However, no
documentary evidence apart from the “ipse dixit” of the appellant is
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produced to show the extent of damage sustained to the car. No
evidence like any survey report, bill for purchase of spare parts, bill for
payment of labour charges, photographs of the damaged vehicle, etc.,
were produced. Hence we find no reason to interfere with dismissal of
the claim.
3. With respect to compensation on account of injuries sustained
to the appellant, it is noticed that he had sustained fracture of right
patella with haemarthrosis right knee. The appellant underwent
surgery in which patella was removed. Besides he sustained injury to
right pinna and repair was done by ENT surgeon. As per Ext. A3
disability certificate issued by PW2, it is noted that the injuries
sustained to the appellant had resulted in persistent disability which is
assessed at 10 per cent. The appellant is a businessman who is the
Managing Director of company at Abu Dubai as well as the Managing
Partner of West Fort Hospital, Trichur and Chairman of Arogya Scan
Research Private Ltd. He is an income-tax payee. The learned
Tribunal found that since the appellant was only one among the other
partners of all the concerns, there is no clear evidence to show that
those firms had sustained any loss with respect to the income derived
out of it’s business. Eventhough the appellant continued prolonged
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treatment no document was produced to show that the absence of the
appellant had in any way affected the business activities of these firms.
So also there is no evidence to show that permanent disability caused to
the appellant had in any way affected his income and earnings during
the year succeeding to the accident. Under such circumstances, the
Tribunal adopted a notional income at the rate of Rs. 2500/- per month
for the purpose of computing his loss of earnings. Considering four
months’ loss of earning, an amount of Rs. 10,000/- is granted under that
head. So also in awarding compensation for continuing permanent
disability, the Tribunal took notional income of the appellant as Rs.
1500/- per month and awarded a sum of Rs. 11,700/- under that head.
Learned counsel appearing for the appellant vehemently contended that
the amounts awarded under the above said heads are highly unrealistic
and too inadequate. Hence he seeks enhancement of the compensation.
4. Considering the entire facts and circumstances of the case and
evidence on record we feel that there is no proper documentary
evidence adduced by the appellant to prove the actual loss of earning
during the period when he underwent treatment and also to prove the
loss of earning which might have occurred due to his permanent
disability. However, we feel that various amounts granted by the
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Tribunal under these heads are on the lower side. Considering various
other amounts awarded under different heads, we feel that the total
compensation of Rs. 65,000/- granted by the Tribunal is inadequate.
On an anxious consideration of the entire facts and circumstances, we
feel that enhancement of total compensation by an additional sum of
Rs. 35,000/- will be just and reasonable to meet the ends of justice.
In the result, MACA 414/2003 is dismissed. M.A.C.A.No. 415 of
2003 is partly allowed enhancing the total compensation of Rs.
65,000/- awarded by the Tribunal by a further sum of Rs. 35,000/-
which will carry interest at the rate of 9 per cent per annum from the
date of claim petition till payment. The third respondent insurance
company is directed to make payment of the amount within three
months.
(C.N.RAMACHANDRAN NAIR)
Judge.
(C. K. ABDUL REHIM)
Judge.
kk
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