Appeal by motor accident victim against compensation quantum. High Court held Tribunal erred in reducing disability from 50% to 25% despite lack of treatment records for second accident. Petitioner awarded enhanced compensation of Rs.2,70,000.
Appellant entitled to enhanced compensation of Rs.2,70,000 with 7% interest from date of award.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
MACA NO. 1581 OF 2018
OPMV 924/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY
APPELLANT/S:
ARAVINDAN P, AGED 48 YEARS
S/O.KUNHIRAMAN, AGED 48, RESIDING AT PANACHIKKAL
HOUSE, KOLATHUVAYAL PO, KALLIASSERY, KANNUR
DISTRICT.
BY ADV SMT.C.LEENA
RESPONDENT/S:
1VALSAN PADINHARE PURAYIL
S/O.BALAN P.P., AGE NOT KNOWN, KULAPPURAM,
P.O.VILAYANKODE, KANNUR.(OWNER & DRIVER OF THE
CAR KL-13 L 954).
2BAJAJ ALLIANCE GE PLAZA, AIRPORT, YARWADA PUNE.
(INSURER OF THE CAR KL-13 L 954).
BY ADVS.
SRI.THOMAS M.JACOB
SRI.P.U.SHAILAJAN
SRI.M.SURESH KUMAR
SRI.V.SREEJITH (K/1398/2000)
SMT.VIDYA KURIAKOSE
OTHER PRESENT:
ADV AKHIL K. MADHAV
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 03.06.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA NO. 1581 OF 2018
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ORDER
(Dated this the 3rd day of June 2022)
The petitioner in O.P.(M.V.) No.924 of 2008 on the
files of the MACT, Thalassery has filed this appeal being aggrieved by the amount of compensation awarded to him
in a road traffic accident.
while the appellant was riding a motor bike bearing Reg.No.KL-13L/8784 from Manna side towards Kallassery, a car bearing Reg.No.KL-13L/954 driven by the first respondent in a rash and negligent manner hit against the motor bike causing serious injuries to the appellant. The appellant was immediately taken to Koyili Hospital, Kannur, from where he was referred to Tejasvini Hospital, Mangalore and was treated as inpatient there from
MACA NO. 1581 OF 2018
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22.1.2007 to 8.2.2007. The appellant has sustained injuries
on his spinal cord and became totally bedridden. He was
working as a store keeper in Abudabi earning Rs.25,000/per month and due to the injuries sustained, he lost his job and he has suffered pecuniary as well as non-pecuniary loss and claimed a compensation of Rs.30,00,000/- from the respondents.
MACA NO. 1581 OF 2018
due to the accident which occurred on 1.11.2008 and not in
the accident which occurred 21.1.2007.
Tribunal. Though the Medical Boards issued disability certificates Ext Nos.X1 and X2 showing the permanent
MACA NO. 1581 OF 2018
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disability as 50%, the Tribunal took only 25% as the percentage of permanent disability. Both the Medical Boards, i.e., the Medical Board constituted by Medical Superintendent of Pariyaram Medical College Hospital and
the Medical Board constituted by the Superintendent of Government Medical College Hospital, Kozhikode issued disability certificates namely, Exts.X1 and X2 with 50% disability. According to the appellant, though he was referred to Medical College Hospital, Kozhikode, he was not admitted and discharged on the same day and there are no treatment records of the same.
treatment records at Medical College, Kozhikode
MACA NO. 1581 OF 2018
pertaining to the 2nd accident and in spite of the fact that the
petition was allowed, the appellant did not produce the document pertaining to the 2nd accident and hence, the Tribunal was justified in taking an adverse inference
against him and bringing down the percentage of disability to 25%, as there is no clear cut finding as to whether the
injury caused is by the first or second accident.
first accident as evidenced from Exts.A2, A3 and A9, are A/C C5-6 Disc Prolapse with Cord Contusion, whereas in the 2nd accident, the wound certificate produced as Ext.B2 shows that the injuries sustained due to the 2nd accident were near to the neck, eyebrow, nose etc. It can be seen
from the accident-cum-wound certificate that in the 2nd
accident that the appellant did not sustain any injury to the
MACA NO. 1581 OF 2018
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cervical area and the disability certificate Ext.X1 issued is
for the injury sustained at the cervical area of the appellant. A comparison of Ext Nos.X1 and X2 clearly show the injuries sustained by the appellant at cervical area was due to the first accident. Hence, the Tribunal was not justified in bringing down the percentage of disability to 25% for the reason that the appellant has not produced the treatment records in respect of the 2nd accident. In fact, even if the said treatment records were produced, that will not help the 2nd respondent/Bajaj Insurance to contend that the injury is caused by the second accident because Ext.B1 only shows the injury on the upper part of the body. In view of Exts.X1 and X2 coupled with
Ext.B2, I am of the opinion that the Tribunal was not justified in bringing down the percentage of disability from
50% to 25%. Hence the percentage of
MACA NO. 1581 OF 2018
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permanent disability sustained to the appellant proved by Exts.X1 and X2 is taken as 50%. Accordingly, under the head compensation for permanent disability, the calculation would be Rs.72,000/- x 50 x 15/100 = Rs.5,40,000/-. The Tribunal has already awarded Rs.2,70,000/- under the said head. So, the appellant would be entitled for the balance amount of Rs.2,70,000/-.
In the result, the appeal is allowed, modifying the award of MACT, Thalassery in O.P. (M.V.) No.924 of 2008 and the appellant is entitled to the enhanced compensation of Rs.2,70,000/- with 7% interest from the date of award till realisation.
sd BASANT BALAJI, JUDGE
dl/
2 issues framed by the court
Whether the High Court could modify the disability percentage awarded by the Motor Accident Claims Tribunal beyond the medical board certificate.
Whether the Tribunal was justified in reducing the permanent disability percentage from 50% to 25% due to non-production of treatment records for a second accident.
1 provisions across 1 enactments
Aravindan P
Valsan Padinhare Purayil
Bajaj Allianz Ge Plaza
Basant Balaji
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court