Aboobacker vs Hamsa S/o.Moideen

T.R.Ravi, J

A lorry driven in a rash and negligent manner by the 2nd respondent hit against the motor cycle which was being driven by the appellant on 21.11.2009, causing very serious injuries to the appellant. The appellant was taken to the West Fort Hospital, Thrissur and admitted as an inpatient on the very same day. He was discharged from the hospital on 17.12.2009. He was again admitted in the hospital on 06.01.2010 and had to remain there till 15.01.2010 and thereafter on 18.03.2010 to 22.03.2010. On the whole, the appellant had to remain in the hospital for 44 days. The appellant sustained injuries in the nature of cerebral edema, frontal parietal SAH, frontal & parietal multiple contusions, right temporal extra dual haematoma, traumatic subarachnoid haemorrhage, lacerated wound on the left upper eyelid, contusion on the left thigh, pneumocephalus and left fronto temporo parietal decompressive craniotomy. The appellant preferred a claim petition before the Motor Accidents Claims Tribunal, Ottappalam. The Tribunal awarded a sum of ₹3,55,800/- towards compensation. Aggrieved by the award, the appellant has preferred this appeal seeking enhanced compensation.

Heard Sri.Nimod A.R., learned counsel on behalf of the appellant and Sri.Thomas Mathew Nellimoottil, learned counsel on behalf of the 3rd respondent.

The appellant claimed to be a salesman. He was aged 55 years at the time of the accident. He claimed that he was earning a monthly income of ₹4,000/-. The learned counsel for the appellant submitted that the Tribunal went wrong in adopting ₹3,500/- as the monthly notional income instead of granting compensation on the basis of a monthly income of ₹4,000/-, which was claimed. The accident is of the year 2009 and the above contention of the counsel for the appellant is fully justified having regard to the dictum in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd., reported in [AIR 2011 SC 2951]. The counsel also submitted that the injuries are admitted. It is not in dispute that the appellant had to remain in the hospital for 44 days in a span of 6 months. The appellant had produced Ext.A9 discharge certificate, which showed that he had a disability of 5%. The Tribunal did not grant any amount towards permanent disability for the reason that the Doctor who issued Ext.A9 was not examined.

Considering the nature of injuries, the long period of hospitalization and the contents of Ext.A9, I am of the opinion that the Tribunal ought to have accepted the disability certificate, particularly since its contents are not challenged in any manner known to law. The document was not marked subject to proof or noting any objection from the side of the respondents. Admittedly the Tribunal has not followed the procedure contemplated in paragraph 12 of the judgment in Raj Kumar V. Ajay Kumar reported in (2010 KHC 5021) (SC). In the above circumstance, the Tribunal was bound to grant compensation for permanent disability by adopting 5% as the disability. Hence the appellant is entitled to enhanced compensation. The loss of earnings for 6 months on the basis of a monthly salary of Rs.4,000/-, will come to ₹24,000/-. After deducting the amount of ₹21,000/- awarded by the Tribunal, the appellant will be entitled to an additional compensation of ₹3,000/- towards loss of earnings. Regarding compensation for permanent disability, the appellant is entitled to a sum of ₹26,400/- (4000x12x11x5%) under that head.

In the result, the appeal is allowed and the appellant is awarded an enhanced compensation of ₹29,400/- (Rupees twenty nine thousand four hundred only) with interest at the rate of 9% per annum from the date of filing of the claim petition (14.06.2010) till the date of realisation, with proportionate costs. The 3rd respondent insurer shall deposit the additional compensation granted in this appeal along with interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the appellant is liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellant shall be in accordance with law.