Noushad, S/o Hameed vs Sreedaran, S/o Krishnan

,,,

C.S.Dias,J",,,

The appellant was the petitioner in OP(MV)No.444 of 2006 on the file of the Motor Accidents Claims Tribunal, Ottapalam. The respondents in the",,,

appeal were the respondents before the Tribunal.,,,

The brief facts, relevant for the determination of the appeal, are: on 30.09.2005 while the appellant was standing on the Kumbidi â€" Thrithala",,,

public road, a motorcycle bearing KL 9/Q 4854 ridden by the 1st respondent in a rash and negligent manner hit the appellant. The appellant turned",,,

unconscious and sustained fractures. He was taken to the Edappal Hospital and, thereafter, to the West Fort Hospital, Thrissur, where he was treated",,,

as an in-patient for a period of 18 days. The motorcycle was owned by the 2nd respondent and insured with the 3rd respondent. The appellant was a,,,

Mechanic by profession and earning a monthly income of Rs.4,000/-. The appellant, hence, claimed a total compensation of Rs.3,00,000/- from the",,,

respondents.,,,

The respondent 1 and 2 did not contest the proceedings and were set ex-parte.,,,

The 3rd respondent filed a written statement refuting the allegations in the claim petition. It was contended that the accident occurred on account of,,,

the negligence of the appellant. However, the 3rd respondent admitted that the motorcycle had a valid insurance coverage.",,,

The appellant examined the Doctor who issued the disability certificate as PW1 and marked Exts.A1 to A16 in evidence. The 3rd respondent,,,

produced Ext. B1 copy of the insurance policy and marked it in evidence.,,,

The Tribunal, after analysing the pleadings and materials on record, by an impugned award, allowed the claim petition, in part, by permitting the",,,

appellant to realise an amount of Rs.2,05,950/- with interest and cost from the respondents. The 3rd respondent was directed to pay the compensation",,,

amount.,,,

Dissatisfied with the quantum of compensation the petitioner/appellant is in appeal.,,,

Heard Sri.R.Sreehari, the learned counsel for the appellant/petitioner, Sri.Arun Raj, the learned counsel appearing for the 3rd respondent â€"",,,

insurer.,,,

The questions that emerge for consideration in the appeal are (i) whether the scaling down of the permanent disability of the appellant by the,,,

Tribunal was justifiable? and (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just?,,,

Ext.A4 charge-sheet filed by the police after investigation proves that the accident occurred on account of the negligence on the part of the 1st,,,

respondent. Admittedly, the 2nd respondent was the owner and the 3rd respondent was the insurer of the motorcycle. Therefore, it is the 3rd",,,

respondent who is to indemnify the liability of the 2nd respondent on account of the accident.,,,

The appellant had examined PW1 who proved Ext.A14 disability certificate, wherein, the appellant's permanent disability was certified at 35%.",,,

However, the Tribunal for the reason that the appellant had not examined himself scaled down the disability to 30%.",,,

In Rajkumar v. Ajayakumar [2011(1) KLT 620(SC)] the Hon'ble Supreme Court has held that the proper course to prove the disability of a person,,,

is to examine the Doctor who issued the disability certificate or get the disability assessed by a duly constituted Medical Board.,,,

In the instant case, the appellant had examined PW1 and proved Ext.A14 disability certificate. In Ext.A14 the disability of the appellant is clearly",,,

stated as 35%. The Tribunal for the sole reason that the appellant was not examined scaled down the disability, which was erroneous and totally",,,

unwarranted. Hence, I set aside the finding of the Tribunal that the appellant has only a permanent disability of 30%. Accordingly, I re-fix the disability",,,

at 35% as certified in Ext.A14.,,,

Multiplier,,,

As the appellant was aged 18 years and in view of the law laid down in Sarala Varma and others v. Delhi Transport Corporation and others,,,

[(2010) 2 KLT 802], the relevant multiplier is '18'.",,,

Loss due to disability,,,

In view of the re-fixation of the notional income of the appellant at Rs.4,000/- per month, his disability at 35% and the multiplier at '18', I re-fix the",,,

compensation for 'loss due to disability' at Rs.3,02,400/- instead of Rs.86,400/- awarded by the Tribunal.",,,

Loss of earnings,,,

In view of the re-fixation of the notional income of the appellant at Rs.4,000/- per month and the finding of the Tribunal that the appellant was",,,

indisposed for a period of four months, I re-fix his 'loss of earnings' at Rs.16,000/- instead of Rs.6,000/-fixed by the Tribunal.",,,

Loss of amenities,,,

The appellant had claimed a total amount of Rs.35,000/- towards 'loss of amenities'. The Tribunal awarded only an amount of Rs.8,000/-.",,,

Taking into account the fact that the appellant was treated as an in-patient for a period of 18 days, he was indisposed for a period of four months",,,

and that he has a disability of 35%, I hold that the appellant is entitled for compensation for 'loss of amenities' at Rs.20,000/- i.e., an enhancement by a",,,

further amount of Rs.12,000/-",,,

Other heads of claim,,,

With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation.",,,

On an overall re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decision, I am of the definite opinion",,,

that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy,,,

reference.,,,

Sl. No,Heads of claim,"Amount awarded by the

Tribunal (in rupees)","Amounts modified and

recalculated by this

Court

1,Loss of earning,"6,000/-","16,000/-

2,Transport to hospital,"4,000/-","4,000/-

3,Medical expenses,"82,850/-","82,850/-

4,Compensation for pain and sufferings,"16,000/-","16,000/-

5,Compensation for loss of amenities,"8,000/-","20,000/-

6,Loss due to disability,"86,400/-","3,02,400/-

,,"2,03,250/-","4,41,250/-