MANJERI v. ASHRAF P

AG/1932 ridden by the first respondent and owned by the second respondent hit against the motorcycle on which the appellant was riding pillion, whereby he sustained very serious injuries. He approached the tribunal claiming a total compensation of 8,00,000/-. ₹

3. Respondents 1 and 2 entered appearance, but not filed any written statement. The respondent insurer filed a written statement, admitting the policy coverage for the offending vehicle, but disputing liability and the quantum of MACA NO. 4160 OF 2019 ..3.. compensation claimed. Before the tribunal, the evidence consists of documentary evidence as Exts.A1 to A6 on the side of the appellant/claimant and Ext.X1 as third party document. No evidence was adduced by the respondents. The tribunal, after analysing the pleadings and materials on record, held that the accident took place on account of the negligence of the rider of the offending vehicle and awarded a sum of ₹5,06,500/- as compensation under different heads against the third respondent being the insurer. Dissatisfied with the quantum of compensation awarded by the tribunal, the claimant has come up in appeal.

4. Heard the learned counsel for the appellant and the learned Standing Counsel for the respondent insurer.

5. The learned counsel for the appellant claims enhancement mainly under the following heads;

5.1. Pain and suffering - The learned counsel for the appellant submits that though the appellant claimed ₹75,000/- towards pain and suffering, the tribunal awarded only ₹35,000/-. It is seen that the appellant was treated as inpatient for eight days and he suffered left frontal extradural MACA NO. 4160 OF 2019 ..4.. haematoma, multiple facio-maxillary fractures, comminuted fractures involving right and left maxillary sinus, lateral, posterior and medial walls extending up to alveolar ridge, fracture in left zygomatic maxillary junction, fracture in the floor of left orbit with herniation of orbital fat, fracture of roof and medial wall of both orbits, multiple fracture of frontal sinus and multiple fracture of nasal bone, ethmoid and pneumocephalus in left frontal area. Considering the same, I am of the opinion that a total sum of 50,000/- has to be granted ₹ towards pain and suffering. Accordingly, the appellant will be entitled to get an additional amount of 15,000/- under that head ₹ after deducting 35,000/- awarded by the tribunal. ₹

5.2. Permanent disability & loss of earning power - The learned counsel for the appellant submits that as evident from Ext.X1 disability certificate, the appellant is assessed to have 14% permanent partial disability. Though Ext.X1 was accepted by the tribunal, it was opined that 10% out of the 14% permanent partial disability was occasioned due to deranged occlusion and extraction of teeth and the petitioner being a barber, it does not affect his work. Accordingly, after assessing and calculating functional disability, the tribunal has MACA NO. 4160 OF 2019 ..5.. taken into consideration the percentage for functional disability as 8%. This reasoning of the tribunal does not appear to be acceptable. In Manikantan G. v. K.Janardhanan Nair [2021(5) KHC 305], following the judgment in Rajkumar v. Ajay Kumar [2011 (1) KLT 620 SC), this Court held as follows; There are several “12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical instances of assessment. unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.” Therefore, considering the avocation of the appellant, I am of the opinion that 12% permanent disability has to be taken for MACA NO. 4160 OF 2019 ..6.. awarding compensation towards permanent disability. The tribunal already assessed future prospects at 40% and fixed notional monthly income of the appellant at 10,500/-. ₹ Therefore, applying the above standards, the appellant will be entitled to get a compensation of 3,81,024/- (14700 x 12 x ₹ 18 x 12%). Then, after deducting the compensation of 2,54,016/- already awarded by the tribunal towards ₹ permanent disability, the appellant will be entitled to get an additional sum of 1,27,008/- under the said head. ₹

5.3. Loss of amenities - Though the appellant claimed an amount of ₹50,000/- towards loss of amenities, no compensation was awarded by the tribunal under this head. The appellant, who was a barber, sustained multiple injuries in the accident and was an inpatient for eight days. Considering the multiple injuries sustained by the appellant, I deem it appropriate to award an amount of ₹30,000/- under this head.

6. Though the appellant claimed enhancement of compensation under other heads, on a perusal of the records available, I am not inclined to interfere with the compensation MACA NO. 4160 OF 2019 ..7.. awarded by the tribunal under other heads since it appears to be just and reasonable. Thus, the impugned award of the tribunal is modified as follows; Sl. No. Head of Claim Amount claimed (in ₹) Modified in appeal (in ₹) Total compensation (in ₹) Amount awarded by the tribunal (in ₹)

5. Loss of earning Transport to hospital Extra nourishment Damage to clothing and articles Bystander expenses

6. Medical expenses

8. Pain and suffering Permanent disability & loss of earning 100000 52500 10000 1500 9000 2400 1000 750 - 3200 150000 156662 - - - - - - 52500 1500 2400 750 3200 156662 75000 35000 15000 50000 400000 254016 127008 381024

9. Loss of 50000 - 30000 30000 MACA NO. 4160 OF 2019 ..8.. amenities

10. Loss of 25000 expectation of

11. Inconvenience, hardship etc. 25000

12. Mental and 25000 physical shock - - - - - - - - - Total 870000 506028 172008 678036 Accordingly, the appeal is allowed in part and the appellant/claimant is awarded an additional compensation of ₹1,72,008/- (Rupees one lakh seventy two thousand and eight only) (total compensation of Rs.6,78,036/-) over and above the compensation awarded by the tribunal with interest @ 8% per annum from the date of petition till realization and proportionate costs. The respondent insurer shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The claimant shall furnish copies of the PAN Card, ADHAAR Card and bank details before the respondent insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for MACA NO. 4160 OF 2019 ..9.. the insurance company to deposit the said amount before the tribunal. Upon such deposit being made, the entire amount shall be disbursed to the appellant at the earliest in accordance with law. Sd/- SHOBA ANNAMMA EAPEN JUDGE bka/-