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.
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M.A.C.A.No.495 OF 2008
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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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