Allowed

Faizal @ Faizaludheen v. Farook

Kerala HC13 Dec 2012MACA/2216/2012

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the appeal filed by a pillion rider against the quantum of compensation awarded by the Motor Accident Claims Tribunal. The Court enhanced the compensation by correcting the disability percentage from 10% to 18.5%, allowing additional pain and suffering settlement, and awarded a total additional sum of 85,940/- together with interest.

What did the court decide?

The appeal was allowed in part; the appellant is entitled to Rs. 85,940/- as additional compensation with interest at 7.5% per annum.

Faizal @ Faizaludheen Vs Farook — Motor Accident Claims | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.T.SANKARAN &

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THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS

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THURSDAY, THE 13TH DAY OF DECEMBER 2012/22ND AGRAHAYANA 1934

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MACA.No. 2216 of 2012 ()

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-----------------------OPMV.83/2010 of M.A.C.T OTTAPPALAM

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APPELLANT/PETITIONER:

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FAIZAL @ FAIZALUDHEEN COMPUTER MECHANIC, S/O.USMAN, KUNNATH HOUSE PLAVINCHODU, MALLESWAMANGALAM P.O., THIRUVILLAMALA THRISSUR DISTRICT.

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BY ADV. SRI.SHEJI P.ABRAHAM

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RESPONDENTS/RESPONDENTS:

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FAROOK S/O.KHADER, PLATHOTTATHIL HOUSE, MANKARA PALAKKAD, (DRIVER OF KL 9 K 1324 MOTOR CYCLE).

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RAVISANKAR, S/O.DIVAKARAN CHITTOOR HOUSE, MANKARA, PALAKKAD (OWNER OF KL 9 K 1324 MOTOR CYCLE).

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NEW INDIA ASSURANCE CO. LTD. BRANCH OFFICE, JRJ COMPLEX OTTAPALAM POLICY NO.761103/31/08/01/00016290

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VALID FROM 20/1/2009 TO 19/1/2010.

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RR3 BY ADV. SRI.VIJU THOMAS R3 BY ADV. SMT.M.MEENA JOHN ADV. SRI A A ZIYAAD RAHMAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 5-12-2012, THE COURT ON 13.12.2012 DELIVERED THE FOLLOWING:

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K.T.SANKARAN & M.L.JOSEPH FRANCIS JJ.,

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.2216 of 2012 E

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - -

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Dated this the 13^th day of December, 2012

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JUDGMENT

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Joseph Francis J.,

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This appeal is filed by the petitioner in O.P.(M.V.) No.83 of 2010 on the file of M.A.C.T., Ottapalam.

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The case of the petitioner in the O.P.(M.V.) is briefly as

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follows. The accident occurred on 13.12.2009 at about 7.30 A.M.

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at Malleswamangalam. On that day, the petitioner was a pillion rider on the motor cycle bearing Reg.No.KL-9-K/1324 ridden by the first respondent, rashly and negligently,and when reached at the accident spot,the vehicle capsized on the road and the petitioner sustained severe injuries.The accident occurred solely due to the negligence of the first respondent,the rider of the motor cycle,2^nd respondent was the owner and the 3^rd respondent was the insurer of

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M.A.C.A. No.2216 of 2012 :2:

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said vehicle. The petitioner claimed 5,00,000/- as compensation. Respondents 1 and 2 remained ex-parte. Third respondent filed written statement admitting the policy and contended that the accident was not due to the negligence of the first respondent and that the compensation claimed is excessive. Before the Claims Tribunal PWs1 and 2 were examined and Exts.A1 to 18 and B1 were marked. The Claims Tribunal on considering the evidence on record found that the accident was due to the rash and negligent driving of the first respondent and awarded a compensation of 2,47,000/- to the petitioner together with interest at the rate of 7% per annum from 9.2.2010 till the date of realisation from the respondents and the third respondent was directed to deposit the amount as the insurer. Being dissatisfied with the quantum of compensation awarded the petitioner filed this appeal.

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Heard learned counsel for the appellant and learned counsel for the Insurance Company.

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Learned counsel for the appellant submitted that the

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M.A.C.A. No.2216 of 2012

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:3:

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compensation awarded is on the lower side and that the appellant is entitled to get enhanced compensation. Learned counsel for the Insurance Company supported the award.

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The Claims Tribunal awarded compensation under various

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heads as follows:

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*Sl.* *No.*	*Head of claim*	*Amount* *claimed* (`)	*Amount* *awarded* (`)	*Basis-vital details in a* *nut shell*
1	Loss of earning	30,000/-	16,000/-	4000x4
2	Medical and miscellaneous expenses	2,00,000/-	1,01,300/-	Acceptable bills for `1,01,291.58 produced
3	Bystander expenses	10,000/-	8,200/-	Inpatient treatment for 41 days (11+14+16) 200x41
4	Transportation expenses	1,000/-	3,000/-
5	Extra nourishment	20,000/-	4,100/-
6	Damage to clothing etc.	1,000/-	500/-
7	Pain and suffering	30,000/-	20,000/-	Bilateral non-depressed fracture on roof of orbit extending to frontal bone with EDH, SAH multiple facial bone fracture Fracture distal end of radius
8	Loss of amenities and conveniences etc.	10,000/-	7,500/-
9	Compensation for continuing or permanent disability	1,25,000/-	86,400/-	4000x12x18x10/100
	TOTAL	5,17,000/-	2,47,000/-

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M.A.C.A. No.2216 of 2012

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Immediately after the accident the appellant was taken to Valluvanad Hospital, Ottapalam. Ext.A2 is the copy of wound certificate issued from Valluvanad Hospital, Ottapalam. The injuries noted are “post proleeteral dislocation of elbow Rt. with un-displaced radial head, displaced fracture lower end of radius left, CT scan multiple fracture involving nasal bone, Rt. maxillary sinus, medial and superior walls of both orbits frontal sinus ethomoid sinus, spheroid sinus, anterior clenoid process and frontal bones, and CT left frontal extra dural haemorrhage causing mild midline shift to Rt. multiple contusion haemorrhage at the left frontal lobe, subarachnoid haemorrhage pneumocephalaus.” Ext.A3 is the copy of discharge certificate for police cases issued from Jubilee Mission Medical College, Thrissur. The investigation showed “multiple fracture skull involving nasal bone, Rt. Maxillary sinus, orbital wall, left frontal brain EDH, and SAH, fracture dislocation Rt., elbow with fracture distal radius Rt.”. Ext.A9 series are the discharge summary cards issued from the same hospital. The date

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M.A.C.A. No.2216 of 2012

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of first admission was on 13.12.2009 and the date of discharge was 24.12.2009. The diagnosis noted as “bilateral non-depressed roof of the orbit fracture extending to the frontal bone with left frontal extra dural hamatone with mass effect and multiple spec contusion, multiple facial bone fractures, fracture Rt., distal end of radius. The Neuro surgeon noted as post traumatic left side CSF Rhinorrhea known Eptoin Allergy. The orthopaedician noted as comminuted compound fracture distal end of radius Rt. with head injury. He was readmitted on 30.12.2009 and discharged on 13.1.2010. The final diagnosis noted as old splenoid case frontal craniotomy and EDH evacuation. Again he was readmitted on 27.1.2010 and discharged on 12.2.2010. The final diagnosis noted as K/C/O comminuted compound fracture DER Rt. for implant removal. Ext.A14 series are the photos showing the wound scar on scalp with negative. Ext.A15 is the discharge summary issued from the same hospital. Ext.A10 is the disability certificate issued by PW2, the Orthopedic surgeon, attached to Aswini Hospital, Thrissur. PW2

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M.A.C.A. No.2216 of 2012 :6:

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had assessed 18.5% of permanent whole body disability. But the Claims Tribunal assessed disability as 10%.

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Since the Doctor who was examined as PW2 proved Ext.A10 disability certificate, we are of the view that 18.5% assessed by him can be taken as the percentage of disability. At the time of accident, the appellant was aged 20 years and he was a computer mechanic. The Claims Tribunal took monthly income of the appellant as 4,000/- and took 18 as the suitable multiplier. Calculating on that basis, the appellant is entitled to get 1,59,840/(4000x12x18x18.5/100) as compensation for permanent disability in the place of 86,400/- awarded by the Tribunal. Considering the nature of injuries sustained, 30,000/- claimed towards compensation for pain and suffering is allowed in the place of 20,000/- awarded by the Tribunal. 10,000/- claimed towards compensation for loss of amenities and inconvenience is awarded in the place of 7,500/- awarded. Thus in total the appellant is entitled to get 85,940/- as additional compensation.

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M.A.C.A. No.2216 of 2012

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Accordingly this appeal is allowed in part and the appellant/petitioner is allowed to realise `85,940/- as additional compensation together with interest at the rate of 7.5% per annum from the date of petition till the date of realisation from the respondents and the third respondent is directed to deposit the amount within three months from this date. There is no order as to costs.

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K.T. SANKARAN, (JUDGE)

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M. L. JOSEPH FRANCIS, (JUDGE)

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dl/

Faizal @ Faizaludheen v. Farook

Case brief

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Faizal @ Faizaludheen v. Farook

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