Allowed

Sivan v. Mansoor N.M.

Kerala HC19 Sept 2017MACA/1807/2017

Case brief

AI extract

What is this about?

The High Court allowed this appeal preferring by an injured cyclist against an award of 55,500/- by the Motor Accident Claims Tribunal. The Court found the Tribunal erred in considering only one month's loss of income despite the appellant's sustained lumbar spine fracture preventing him from working long-term. The award was set aside and matter remitted.

What did the court decide?

Impugned award set aside and matter remitted to the Tribunal for fresh consideration of permanent disability and loss of earning power.

Sivan Vs Mansoor N.M. — Motor Accident Claims | Kerala HC (2017)

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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 P.D.RAJAN

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TUESDAY, THE 19TH DAY OF SEPTEMBER 2017/28TH BHADRA, 1939

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MACA.No. 1807 of 2017 ()

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AGAINST THE AWARD IN OPMV 462/2012 of ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR DATED 30.1.2016

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APPELLANT(S)/PETITIONER.:

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-----------------------SIVAN S/O AYYAPPAN, THEKKINEDATH HOUSE, EZHIKKARA, NORTH PARAVUR, ERNAKULAM DISTRICT.

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BY ADV. SRI.A.N.SANTHOSH

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RESPONDENT(S)/RESPONDENTS.:

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--------------------------1. MANSOOR N.M. S/O NUR MOHAMMED, 10/500, SUNAYAS MANZIL, JHONE LANE, AMARAVATHY, FORT KOCHI. 682001.

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2. RAHUL GEORGE, S/O GEORGE, AYATHUPARAMBIL HOUSE, EZHIKKARA PO, N.PARAVUR.683513.

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3. UNITED INDIA INSURANCE COMPANY LTD, AMBALLOOR, THRISSUR DISTRICT. 680301. R3 BY ADV. SMT.RAJI T.BHASKAR R1 BY ADV. SRI.MANSOOR.B.H. R2 BY ADV. SRI.V.A.OMANAKUTTAN R BY SRI.JOHN JOSEPH VETTIKAD

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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acd

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P.D.RAJAN, J.

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M.A.C.A.No.1807 of 2017

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Dated this the 19^th day of September, 2017

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JUDGMENT

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This appeal is preferred by the injured against the award in O.P.(MV)No.462/2012 of Additional Motor Accidents Claims Tribunal, N. Paravur (for short 'MACT'). The appellant sustained injuries in a motor accident on 27.5.2012 at 3 p.m. while he was riding a bicycle along Paravur-Chathanad road. The learned tribunal awarded a sum of 55,500/-as compensation with interest and costs.₹

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Being aggrieved by that, the injured preferred this appeal.

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The claimant's case in the tribunal was that on the

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date of accident, while he was proceeding through Paravarur- Chathanad road and reaching at Panchayat office, a motorcycle KL-43/649 came in a rash and negligent manner and hit the petitioner's bicycle, as a result, he fell down and sustained serious injuries. Immediately, he was

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taken to Don Bosco Hospital, Paravur and treated there. The

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M.A.C.A.No.1807/2017 2

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driver and owner of the motorcycle were set ex parte in the tribunal. The insurer filed written statement and admitted

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the insurance of the vehicle, but contended that the rider of the motorcycle was not holding valid driving licence at the time of accident. Both parties did not adduce any oral evidence, but their documentary evidence were marked as Exts.A1 to A8 and B1 and B2.

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It is an admitted fact that a victim in a motor

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accident is entitled to get just compensation. This position was settled by the Apex Court in Rajkumar v. Ajay Kumar

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and Anr. [2011 ACJ 1] held as follows:

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(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

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(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).

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(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal

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M.A.C.A.No.1807/2017

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with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. .

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Ext.A5 is the wound certificate issued from Don Bosco Hospital, North Paravur, which shows that the appellant sustained fracture on L2 vertebra. He was admitted as inpatient on 27.5.2012 and discharged on 1.6.2012. Ext.A6 is the discharge card and Ext.A7 is the certificate issued from Don Bosco Hospital, North Paravur. The learned tribunal awarded the following amount as compensation: “Loss of earning ₹ 5000/-, Transport to hospital ₹ 1000/-, Extra nourishment ₹ 3000/-, Damages to clothing and articles ₹ 1000/-,Medical expenses ₹ 17,142/-,Nursing and attendance ₹ 1000/-,Compensation for loss of amenities and enjoyment in life ₹ 2000/- and Compensation for pain and suffering

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₹ 25000/-”. The appellant is a barber by profession and was getting 5000/- per month. The learned tribunal awarded₹ only one month's loss of income.

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M.A.C.A.No.1807/2017

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After discharging from the hospital, appellant was

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taken treatment for a long time. Now he cannot stand for a long time and do his work. That aspect was not considered by the learned tribunal. An injury to lumbar spine is a serious one. Therefore, the tribunal has to award just amount as compensation. Hence, he is entitled to get compensation for his permanent disability and loss of earning power. If that be the position, fresh consideration with regard to the award amount is necessary. When there is any violation of policy condition, the learned tribunal can reimburse the amount from the insurer.

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Apex Court in Manuara Khatun and others v. Rajesh

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Kumar singh and others [(2017) 4 SCC 796] held that “appellant claimants were entitled for an order against the

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insurer to pay the awarded sum to claimants and then to recover the said amount from the insured in the same proceedings as per the law .......”. Apex Court in Jawahar Singh

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v. Bala Jain and Ors [AIR 2011 ACJ 1677] held that “ since

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M.A.C.A.No.1807/2017

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person riding motorcycle at the time of accident was a minor,

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responsibility for paying compensation awarded fell on owner of motorcycle.”

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Hence, the finding of MACT, N. Paravur is set aside and

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the matter is remitted to the tribunal for fresh consideration

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as per law. Both parties are directed to appear before MACT,

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N. Paravur on 3.11.2017.

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M.A.C.A. is disposed of as above.

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P.D.RAJAN, JUDGE.

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acd

Sivan v. Mansoor N.M.

Case brief

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Sivan v. Mansoor N.M.

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