IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1436 of 2007()
1. STEPHEN, S/O PONNUMONY,
... Petitioner
Vs
1. ABDUL KABEER, S/O AHAMMEDKUTTY,
... Respondent
2. THE DIVISIONAL MANAGER,
For Petitioner :SRI.SAJU.S.A
For Respondent :SRI.RAJESH THOMAS
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :10/11/2009
O R D E R
P.R.RAMAN & P.R.RAMACHANDRA MENON, JJ.
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M.A.C.A.No. 1436 of 2007
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Dated this the 10th November, 2009
J U D G M E N T
Ramachandra Menon, J.
The appellant while walking along the road on
23.6.2003 was knocked down by a vehicle, KL-10-P-869, owned
and ridden by the first respondent, causing serious injuries, which
led to the claim. The first respondent, who was the owner cum
driver of the vehicle, chose to remain ex parte and the matter
was contested only from the part of the Insurance Company.
2. The evidence consists of only the documents
produced and marked as Exts.A1 to A4, on the side of the
claimant, and Ext.B1, copy of the policy, marked on the side of
the respondents. Neither side chose to adduce any oral evidence.
On conclusion of the evidence, the Tribunal found that the
accident was occurred as a result of rash and negligent driving of
the vehicle by the first respondent.
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3. After going through the materials on record,
particularly, Ext.A6 wound certificate , Ext.P7 Discharge
certificate, as also Ext.A13 disability certificate, the compensation
payable was fixed by granting a sum of Rs.7000/- towards ‘pain
and suffering’, Rs.4,000/- towards ‘discomfort, inconvenience
and loss of amenities’, Rs.4000/- towards ‘loss of earning’ for
two months, Rs.250/- towards ‘damage to clothing’, Rs.1000/-
towards ‘transport to hospital’, and another sum of Rs.1000/-
towards ‘bystanders expenses’, besides Rs.10,000/- allowed in
respect of ‘medical expenses’. Reckoning the notional income
of the claimant as Rs.2000/- per month and adopting a multiplier
of 16, based on his age as 19 years, the Tribunal awarded
Rs.11,520/- as the compensation for ‘permanent disability’,
fixing the permanent disability at 3%, as against the certified
extent of 8% revealed from Ext.A13 disability certificate. The
claimant has chosen to challenge the quantum in this appeal,
stating that there was absolutely no reason for the Tribunal to
have limited the ‘permanent disability’ to just 3%, when Ext.A13
certificate issued from the concerned Medical College Hospital,
was never chosen to be challenged in any manner, from the part
of the respondents.
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4. The learned counsel appearing for the Insurance
Company submitted that the injuries caused to the petitioner
have been adequately satisfied, particularly, when the claimant
did not choose to enter the box by giving any oral evidence.
However, the fact remains that the injuries sustained by the
claimant are of serious nature, involving head injury, as
discussed by the Tribunal in paragraph 6 of the Award. Merely
for the reason that nobody was examined on the part of the
claimant to substantiate Ext.A13, the same could not have been
ignored without assigning any reasons, while limiting the
‘permanent disability’ to 3%.
5. We have gone through the records. Ext.A13
issued by the Assistant Professor of Surgery of the Medical
College Hospital, Thiruvananthapuram, clearly certifies that the
nature and extent of the injuries suffered by the claimant has
resulted in periodic attacks of ataxia (unsteadiness of gait) and
the permanent disability on this account was assessed as 6%.
Further, hearing impairment of one ear also resulted in 2%
permanent disability; thus making a total of 8%. Going by
the said certificate, we find that the ‘permanent disability’
reckoned by the Tribunal at 3% is very much on the lower side
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and we find it necessary to have the same increased to 6%.
Accordingly, the appellant will be entitled to have a further sum
of Rs.11,520/- towards the balance compensation payable in this
regard. We find that the amounts awarded by the Tribunal
under other heads are quite adequate and not require any
modification.
6. In the result, we grant a sum of Rs.11,520/- as
the balance compensation payable towards ‘permanent disability’
suffered by the appellant/claimant and the said amount shall be
satisfied by the second respondent, Insurance Company, with
interest at the rate of 7% per annum, from the date of the
petition till the date of payment. The Insurance Company shall
deposit the said amount, as expeditiously as possible, at any
rate, within a period of one month from the date of receipt of a
copy of this judgment.
The appeal is allowed in part. No cost.
P.R.RAMAN, JUDGE
P.R.RAMACHANDRA MENON, JUDGE.
nj.