Allowed

Sakkeer Hussain v. E.M.John

Kerala HC1 Dec 2023MACA/259/2012

Case brief

AI extract

What is this about?

This Allahabad High Court case involves an appeal against the quantum of compensation awarded to an injured petitioner in a motor vehicle accident. The court enhanced the compensation from the Motor Accidents Claims Tribunal by revising the monthly income and accepting the certified percentage of physical disability, ordering the insurance company to deposit the additional amount.

What did the court decide?

Modified the Tribunal's award by granting an additional compensation of Rs.2,81,600/- to be deposited by the 3rd respondent with interest and costs within three months.

Sakkeer Hussain Vs E.M.John — Motor Accident Claims | Kerala HC (2023)

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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 ZIYAD RAHMAN A.A.
FRIDAY, THE 1ST DAY OF DECEMBER 2023/10TH AGRAHAYANA, 1945

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MACA NO. 259 OF 2012

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OPMV 1319/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,

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OTTAPPALAM

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APPELLANT/PETITIONER:

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SAKKEER HUSSAIN, S/O.MOHAMMED, RESIDING AT
KATTAMBILLY HOUSE, P.O.CHEMBU, VAIKOM, KOTTAYAM
DISTRICT.

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BY ADVS.
SRI.T.C. SURESH MENON
SRI.P.S. APPU
SRI.A.R. NIMOD

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RESPONDENTS/RESPONDENTS:

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1 E.M.JOHN, RESIDING AT ELAMPALASSERIL HOUSE, 37/2177, KATHRIKADAVU, KALOOR, ERNAKULAM-682017.

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2 AJITHKUMAR SO.G.VELAPPAN NAIR RESIDING AT SIVAPRABHA, KADAKKE NADA, P.O.VAIKOM, KOTTAYAM-686141.

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3 THE UNITED INDIA INSURANCE COMPANY LIMITED OPPOSITE TVS, N.H.ROAD, KALOOR, ERNAKULAM-682017.

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4 MANAGING DIRECTOR, JASS PACK SERVICES PRIVATE LIMITED, 24/188, PERUMANNUR JETTY ROAD, WEST ISLAND, KOCHI-682003.

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5 PRAKASH S. SO.SREENIVASAN, RESIDING AT KALATHIPARAMBIL HOUSE, CHIRATTAPALAM, COCHIN-3.

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6 THE ORIENTAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, V.SHAN COMPLEX, 6, 990B, BAZAR ROAD, MATTANCHERRY, COCHIN-2. BY ADV SMT.S.JAYASREE

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ADV LATHA SUSAN CHERIAN-sc

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 01.12.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

M.A.C.A. No.259/2012

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JUDGMENT

The appellant was the petitioner in O.P.(M.V.) No. 1319/2007 on the files of the Motor Accidents Claims Tribunal, Ottapalam.

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The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 09.12.2004. According to him, the accident occurred when the car bearing registration No. K.L. 7 AG 6811, in which the appellant, along with some other persons, were travelling, collided with a lorry bearing registration No.KL7 AS2757. The car was owned by the 1^st respondent, driven by the 2^nd respondent and insured with the 3^rd respondent. The lorry was owned by the 4^th respondent, driven by the 5^th respondent and insured with the 6^th respondent. Due to the accident, the appellant sustained serious injuries. According to him, he was conducting a cable TV franchisee of Asianet, and the monthly income claimed was Rs.14,000/- and he sustained permanent disablement as well. The claim petition was submitted in such circumstances.

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M.A.C.A. No.259/2012

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The insurance companies, namely R3 and R6, filed

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written statements admitting the coverage of the policy for respective vehicles insured with them. However, they denied negligence as well as the quantum of compensation. The said claim petition was tried along with O.P. (MV) No.1320/2007, which arose from the very same accident.

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The evidence in this case consists of oral testimonies of PWs 1 and 2 and as documentary evidence, Exts.A1 to A21 were marked from the side of the appellants. Ext.X1 and Ext.B1, the copy of the policy, were marked.

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After the trial, the tribunal came to the conclusion that

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the accident occurred due to the negligence on the part of the 2^nd respondent in driving the car in which the appellant was travelling. The quantum of compensation was fixed as Rs.1,20,500/- and the 3^rd respondent herein was directed to deposit the said amount along with interest at the rate of 7% per annum from the date of petition till realisation with a cost of Rs.2,000/-. This appeal is submitted in such circumstances seeking enhancement of compensation.

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M.A.C.A. No.259/2012

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Heard Sri. A.R. Nimod, the learned counsel appearing

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for the appellant, Smt. S.Jayasree, the learned counsel appearing for the 3^rd respondent and Sri. George A Cherian, the learned counsel appearing for the 6^th respondent.

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The main challenge in this appeal is relating to the quantum of compensation, particularly under the head of disability. It was pointed out that for the purpose of determining the compensation under the said head, the tribunal took the monthly income as Rs.5,000/- and the percentage of disability as 6%. The specific case of the appellant is that, both amounts were on the lower side and were contrary to the evidence adduced by the appellants.

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As regards the monthly income, the learned counsel places reliance upon Ext.A18, the Form 16A under the Income Tax Act, evidencing the TDS deposited by M/s.Asianet Satellite Communications Ltd., with respect to the transactions with the appellant herein. It was pointed out that, when the income is calculated on the basis of the same, it would come to around Rs.14,000/- and therefore, the monthly income ought to have been calculated based on the same. The said contention was opposed

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M.A.C.A. No.259/2012

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by the learned counsel appearing for the 3^rd respondent on the ground that, since the avocation of the appellant is maintaining a franchisee of Asianet Satellite Communications Ltd., the nature of the disabilities he sustained would not affect his income. Therefore, the compensation need not be calculated by accepting the income reflected in the certificate as such.

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After considering the materials placed on record, I am of the view that, the contention put forward by the learned counsel for the insurance company cannot be simply brushed aside, even though, I find that the monthly income of Rs.5,000/- is on the lower side. The entire monthly income as revealed from Ext.A18, the Form 16A, need not be taken into account, as evidently physical disability sustained by the appellant, may not have any serious impact upon the said income. However, it is a fact that for managing the affairs, he may have to get the assistance of a third person and probably that may incur expenses as well. Similarly, he has to take extra pain for continuing his affairs owing to physical disabilities sustained to him. Considering all those aspects, I am inclined to take the monthly income as Rs.10,000/for the purpose of assessing the compensation for physical

M.A.C.A. No.259/2012

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disability.

The next aspect relates to the percentage of disability. Ext.A9 disability certificate was relied on by the appellant wherein, the whole body disability was certified as 17%. To prove the said certificate, PW1, the Doctor who issued the said certificate was also examined. However, the tribunal, merely considering that the fracture were found to be united, reduced the same by 6%. In Ext.A9 disability certificate, following aspects are mentioned; a fracture of the anterior and posterior arch of C1 C2 body and (R) lateral mass and base of the odontoid. Sutured forehead wound. (R) frontal and temporal contusion, an acute subdural hematoma on the right side of the posterior fossa and pneumocephalus. Fracture of (R) petrous and sphenoid bone. Profound bearing loss ® ear. In the disability certificate it is also mentioned that there was stiffness of cervical spine, rotations of cervical spine is grossly restricted. Flexion and lateral flexion of cervical spine is restricted. There is fusion of C to C2 vertebra. The contents of the said certificate was properly proved by the Doctor while he was examined as PW1. Thus, it can be seen that even though the fracture was united, there are serious consequences of the injuries

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sustained, which were taken note of by the Doctor while making the assessment of the percentage of physical disability. When a competent Doctor assessed the physical disability and mounted the box to substantiate the certificate he issued, it was not proper for the tribunal to sit in the appeal over the disability certified therein by substituting the expertise of the said Doctor. Therefore, I am of the view that as no discrepancies could be found in the disability certificate and the assessment made by the Doctor as to the percentage of disability; the said certificate as such is to be accepted. Thus, I am inclined to take 17% as the percentage of physical disability as certified in Ext.A9.

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While reassessing the compensation with the above revised criteria, the amount would come to Rs.2,85,600/(10000x12x14x17/100). The amount already awarded by the tribunal under this head is Rs.54,000/- and thus the additional compensation under this head would come to Rs.2,31,600/-.

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Consequent to the revision of monthly income the appellant would be entitled to get a further amount of Rs.15,000/under the head of loss of earnings. Similarly, considering the nature of injuries sustained and the physical disabilities suffered

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therefrom, I am inclined to grant a further amount of Rs.10,000/and Rs.25,000/- under the heads of pain and sufferings, and loss of amenities and enjoyments, respectively. Thus the total additional income is determined as Rs.2,81,600/- [231600+ 15000+10000+25000].

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In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 20.09.2011 in OP(MV) No.1319/2007 passed by the Motor Accident Claims Tribunal, Ottapalam is hereby modified by granting an additional compensation of Rs.2,81,600/- (Rupees two lakhs eighty one thousand six hundred only) and the said amount shall be deposited by the 3^rd respondent insurance company along with interest at the rate as ordered by the tribunal and with proportionate costs within a period of three months from the date of receipt of a copy of this judgment.

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Sd/ZIYAD RAHMAN A.A. JUDGE

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rpk/ncd/

Sakkeer Hussain v. E.M.John

Case brief

What is this about?

What did the court decide?

Sakkeer Hussain v. E.M.John

Case brief

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