Sadanandan vs A.T.Anthappan on 27 July, 2009

Kerala High Court
Sadanandan vs A.T.Anthappan on 27 July, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 712 of 2006()


1. SADANANDAN, S/O.KRISHNAN,
                      ...  Petitioner

                        Vs



1. A.T.ANTHAPPAN,
                       ...       Respondent

2. ABIN THOMAS, ATHANI LANE,

3. THE UNITED INDIA INSURANCE CO.LTD.,

                For Petitioner  :SRI.P.V.BABY

                For Respondent  :SRI.PMM.NAJEEB KHAN

The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS

 Dated :27/07/2009

 O R D E R
        K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ.

               ``````````````````````````````````````````````
                    M.A.C.A. NO: 712 OF 2006

              ````````````````````````````````````````````````

              Dated this the 27th Day of July, 2009.

                             JUDGMENT

K. M. Joseph J.

Since Insurance is admitted, we dispense with notice to the

respondents 1 and 2.

2. We heard the learned counsel for the appellant and the

learned counsel for the third respondent.

3. The application was filed by the appellant under Section

166 of Motor Vehicles Act. The appellant has been awarded a sum of

Rs.79,350/- with interest at the rate of 7.5% per annum. The appeal is

directed against the quantum.

4. Learned counsel for the appellant would contend that this is

a case where the appellant suffered the following injuries:

“1. Multiple lacerated wounds on the right side of
head on the fronto-parieto occipital region.

2. Lacerated wound on the left side of forehead.

M.A.C.A . NO: 712 OF 2006 :2:

3. Bleeding through the nose.

4. Multiple abrassions on the left shoulder, front of
chest, left thigh and both knees.”

5. The appellant was examined by the Medical Board, which

has certified in Ext.A9 Certificate that the appellant has suffered 25%

disability. The Tribunal without any reason taken the disability only at

10%. He further contends that the multiplier was taken at 12, when the

multiplier should have been taken as 17 pointed out in the Second

Schedule. Going by the judgment in Sarla Verma & Others Vs.

Delhi Transport Corpn. and another (2009 ACJ 1298), at least the

multiplier 16 should have been applied. He further contends that

income of the appellant is taken as Rs.1,750/- per month. He pointed

out that Ext.A8 is the Salary certificate issued by his employer. The

learned counsel for the Insurance Company supported the award.

6. The first question to be considered is what is to be taken as

the income of the appellant. The accident took place on 22.6.1997.

Ext.A8 is the salary certificate issued on 3-6-2002. No doubt the

appellant has been examined as PW1. Having regard to the date of the

M.A.C.A . NO: 712 OF 2006 :3:

accident and vocation of the appellant, which was that of a non-skilled

worker in a Construction company, we can safely fix the income of the

appellant as Rs.1,800/- per month.

7. Going by paragraph 21 of Sarla Verma’s case, we can take

16 as the multiplier in the place of 12. The further the question to be

considered is regarding the disability certificate. The appellant would

contend that the medical certificate issued by the Medical board is to be

followed by the court. The Tribunal has noted that according to the

Survey (apparently referred as “disability certificate”), the appellant has

got neurological deficit, which in the course of time may improve.

Thereafter, the Tribunal observed in view of the disability certificate

that, the disability percentage noted by Medical Board would get

narrowed down in the course of time and if so, the disability for the

purpose of calculation of future loss of earnings, cannot be more than

10%. Even so, we notice that the injuries are head injuries. C.T. Scan

of brain would show subdural haematoma right fronto – parietal region

and M.R.I. scan shows thin SDH right fronto-parietal region. Of

course the appellant had head injuries. We think that we can safely fix

M.A.C.A . NO: 712 OF 2006 :4:

the disability at 12%. On this basis, the appellant would be entitled to

get a sum of Rs.14,972/- more after deducting the amount already

awarded towards disability. An amount of Rs.5,000/- is also awarded

under the head loss of earning power and Rs.5,000/- towards disability.

We also award Rs.2,000/- more towards loss of amenity. On the basis

of income we have arrived, the appellant would be entitled to get an

amount of Rs.12,000/- more towards loss of earnings. Thus, the total

amount of compensation would be around 18,182/- (rounded off to

Rs.18,000/-)

Accordingly the appeal is allowed and the appellant is allowed to

realise an amount of Rs.18,000/- more along with interest at the rate of

7.5% from the date of petition till the date of realisation from the third

respondent.

K. M. JOSEPH, JUDGE

M. L. JOSEPH FRANCIS, JUDGE.

dl/

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