Allowed

Mohammed Ashraf v. Abdulla Kunhi A.M.

Kerala HC3 Aug 2022MACA/2706/2012

Case brief

AI extract

What is this about?

The High Court allowed the appeal, enhancing the compensation awarded by the Tribunal. The Court increased the disability from 14% to 20% and granted additional amounts for loss of earnings, loss of amenities, extra nourishment, and pain and sufferings.

What did the court decide?

Appellant granted Rs. 1,50,840/- additional compensation, bringing the total to Rs. 3,89,230/-, payable by the insurer with interest.

Mohammed Ashraf Vs Abdulla Kunhi A.M. — Motor Accident Claims | Kerala HC (2022)

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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 A. BADHARUDEEN

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WEDNESDAY, THE 3^RD DAY OF AUGUST 2022 / 12TH SRAVANA, 1944

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MACA NO. 2706 OF 2012

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AGAINST THE AWARD DATED 28.07.2012 IN O.P(MV) No.686/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD

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APPELLANT/PETITIONER:

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MOHAMMED ASHRAF, S/O.ABDUL HAMEED MOULAVI P.M., PODIPALLAM, BALKIES MANZIL, CHENGALA VILLAGE, KASARAGOD TALUK.

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BY ADV. SRI.P.K.MUHAMMED

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RESPONDENTS/RESPONDENTS:

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1 ABDULLA KUNHI A.M., S/O.ABOOBACKER A.M, MOOLADAKAM HOUSE, MULLIYAR VILLAGE AND POST,

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KASARGOD TALUK-671 542.

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2 PRABHAKARAN, S/O.KAMALA HOUSE NO.7/295,

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KADEANGAD HOUSE, KARADKA PANCHATH,

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ADHAR POST,KASARAGOD-671 543.

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3 THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY, 3RD FLOOR, HIGH LANE PLAZA, M.G ROAD, KASARAGOD-671 121.

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BY ADV. SRI.P.K.MANOJKUMAR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING FINALLY HEARD ON 03.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A No.2706 of 2012

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JUDGMENT

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This is an appeal filed under Section 173

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of the Motor Vehicles Act, challenging award dated 28.07.2012 in O.P.(M.V) No.686/2009 on

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the file of the Motor Accidents Claims Tribunal, Kasaragod, at the instance of the petitioner. The respondents before the Tribunal are the respondents herein also.

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appellant as well as the learned Standing

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Counsel appearing for the Insurance Company.

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Brief facts of the case:

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In this case, the appellant alleged to

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have met with an accident on 26.12.2008 at

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about 11:30 a.m, while he was proceeding towards New Bus stand and reached near the road divider in front of C-DIT institution,

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Kasaragod, is the original petitioner before the Tribunal. It is alleged by the appellant

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M.A.C.A No.2706 of 2012

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that a motorcycle bearing registration No.KL14G-5218, driven by the 1^st respondent, hit the appellant and he sustained serious injuries. 2^nd respondent is the owner and 3^rd respondent is the insurer of the vehicle. On the above facts, an application under Section 166 of the Motor Vehicles Act was preferred by the appellant before the M.A.C.T, Kasaragod claiming compensation to the tune of Rs.5,00,000/- from respondents 1 to 3.

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The 1^st and 2^nd respondents were set ex-

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parte by the Tribunal.

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statement disputing the negligence as well as quantum of compensation.

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the side of the appellant. Ext.B1 marked on

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the side of the Insurance Company. Ext.X1 disability certificate also marked.

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The Tribunal appraised the evidence

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M.A.C.A No.2706 of 2012

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compensation along with 8% interest.

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It is submitted by the learned counsel

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for the appellant that the Tribunal fixed a lower amount as the monthly income of the appellant and also reduced the disability assessed by the medical board as 28% to 14%, without justification. According to him, no amount granted towards 'loss of amenities' and the amount granted towards 'pain and

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sufferings' also is on lower side. Therefore, increase under the above heads is necessary.

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The learned counsel for the insurer

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would submit that though the monthly income can be fixed at Rs.4,500/- as claimed,

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following the ratio in Ramachandrappa v.

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Manager, Royal Sundaram Alliance Insurance

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Company Ltd. : (2011) 13 SCC 236, the

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disability fixed by the Tribunal cannot be enhanced. It is pointed out by the insurer that as per Ext.X1 disability certificate, the

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M.A.C.A No.2706 of 2012

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medical board certified 28% disability to the appellant in relation to his left left lower limb. Since the 28% disability is limb disability, the Tribunal is justified in fixing 14% as the whole body disability to assess the compensation.

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Having considered the rival

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contentions, perusal of the treatment records of the appellant to see injuries and consequential treatment, is necessary. Ext.A4 is the discharge summary issued from Carewell hospital, Kasaragod. As per Ext.A4, compound fracture both leg and treatment by closed interlocking nailing could be gathered. Treatment initially was for a period of 20 days from 20.12.2008 to 17.01.2009. Ext.A3 is the copy of wound certificate showing both bone fracture. Ext.A5 is discharge summary issued from Thejasvini hospital, Mangalore. As per Ext.A5, the appellant was treated there for a period of 13 days from 01.04.2009 and

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M.A.C.A No.2706 of 2012

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13.04.2009 with diagnosis that delayed union of fracture both bone left leg with IMIL nail INSITU-3 months. History of injuries stated as road traffic accident before three months and treatment by way of IMIL nailing. In the disability certificate it is stated that the appellant has got limitation range of motion right hip and knee, and the same affected stability of left lower limb. Thus, 28% disability was assessed in relation to left lower limb. Considering the delayed union of both bone fractures, IMIL nailing etc, I am inclined to fix the disability to 20% instead of 14% accepted by the Tribunal.

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In this case, the Tribunal granted 'loss of earnings' for a period of 4 months @ 3,500/-. Considering the prolonged treatment, I am inclined to increase the 'loss of earnings' for a period of 6 months @ 4,500/per month and the same would come to Rs.27,000/-(4,500x6). Out of which Rs.14,000/-

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M.A.C.A No.2706 of 2012

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was granted by the Tribunal. Therefore,

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Rs.13,000/- more is granted under the head 'loss of earnings'.

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Multiplier '18' applied by the Tribunal is not in dispute. Therefore,

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disability income required to be re-calculated as under,

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Out of which, Rs.88,560/- was granted by

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the Tribunal. Thus, the appellant is entitled

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to the balance of Rs.1,05,840/- more under the head of 'loss of disability income'.

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appellant sustained both bone fracture and he was subjected to multiple injuries, the Tribunal

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granted Rs.15,000/- alone under the head 'pain

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and sufferings'. Therefore, I am inclined to

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grant Rs.10,000/- more under the head 'pain

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and sufferings'. Coming to 'loss of amenities'

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also, no amount was granted by the Tribunal

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M.A.C.A No.2706 of 2012

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and, therefore, the learned counsel for the appellant pressed for granting compensation under the head 'loss of amenities' also. Considering the injuries and treatment, I am inclined to grant Rs.15,000/- under the head 'loss of amenities'. Towards 'extra

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nourishment', the Tribunal granted Rs.3,000/-. Considering the injuries and treatment, I am inclined to grant Rs.7,000/- more under the head 'extra nourishment'.

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In the result, this appeal is allowed. It is ordered that the appellant is entitled to get Rs.3,89,230/- as total compensation, out of which Rs.2,38,390/- was granted by the Tribunal and the balance amount of

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Rs.1,50,840/- (Rupees One Lakh Fifty Thousand and Eight Hundred Forty Only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the 3^rd respondent from the date of petition

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M.A.C.A No.2706 of 2012

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till the date of deposit or realisation.

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The 3^rd respondent is directed to deposit the same in the name of the appellant within two months. On deposit, the appellant is entitled to release the same.

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Sd/-

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A.BADHARUDEEN, JUDGE.

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Mohammed Ashraf v. Abdulla Kunhi A.M.

Case brief

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Mohammed Ashraf v. Abdulla Kunhi A.M.

Case brief

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