Kerala High Court
MACA/2186/2007 of RAJESH Vs SHABU ANTONY on 31 December 2012
COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM MONDAY, THE 31ST DAY OF DECEMBER 2012/10TH POUSHA 1934 MACA.No. 2186 of 2007 ( ) ------------------------- OP (M.V.) 2721/2001 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,THRISSUR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN &THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
MONDAY, THE 31ST DAY OF DECEMBER 2012/10TH POUSHA 1934
MACA.No. 2186 of 2007 ( )
-------------------------
OP (M.V.) 2721/2001 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,THRISSUR
APPELLANT(S)/APPELLANT/PETITIONER::---------------------------------- RAJESH, S/O. PRABHAKARAN NAIR, KIZHUVEETTIL HOUSE, PUTHUR, THRISSUR.
BY ADV. SRI.DILIP J. AKKARA
RESPONDENT(S)/RESPONDENTS::
---------------------------
1. SHABU ANTONY,
KAVUNGAL HOUSE, KUTTIKKADU P.O., CHALAKUDY.
2. JOHNSON, S/O. PAILI,
PAREKKADAN HOUSE, KUNNIKADU DESOM, PARIYARAM
CHALAKUDY.
3. NATIONAL INSURANCE CO. LTD., AMBIKA ARCADE, M.G. ROAD, THRISSUR. AMBIKA ARCADE, M.G. ROAD, THRISSUR.
BY ADV. SRI.M.A.GEORGE FOR R3 BY ADV. SRI.P.V.BABY BY ADV. SRI.A.N.SANTHOSH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
S. SIRI JAGAN & C.K. ABDUL REHIM, JJ.
------------------------------------------------- M.A.C.A No. 2186 OF 2007
------------------------------------------------- DATED THIS THE 31[st] DAY OF DECEMBER, 2012
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J U D G M E N T
Siri Jagan, J:
The claimant in OPMV No.2721/2001 before the Motor Accidents Claims Tribunal, Thrissur has filed this appealclaiming enhanced compensation for injuries suffered byhim on account of an accident which happened on 03-09-2000, while he was travelling in a motor cycle as a pillionrider on account of tempo van bearing registration No.KL-8B 2853 driven by the 2[nd] respondent and owned by the 1[st]respondent insured with the 3[rd] respondent hitting themotor cycle. The petitioner suffered the following injuries.
“Fracture right femur shafts, fracture right fibulaand lisfrunis fracture dislocation left foot.”
The Tribunal awarded compensation on various heads asfollows:
MACA No.2186/2007 -2-
2. The petitioner contends that petitioner hadsuffered serious permanent disability on account of theaccident, which has not been considered for awardingcompensation. According to the petitioner two claims werefiled for the same cause of action. One before IrinjalakudaTribunal and the other before the Thrissur Tribunal. Somedocuments were produced in the Irinjalakuda Tribunal. Inview of the claim before the Thrissur Tribunal, the claimbefore the Irinjalakuda Tribunal was dismissed. There wassome delay in obtaining the documents from the
Irinjalakuda Tribunal and producing the same before theThrissur Tribunal. Although the disability certificate wasproduced one day before the case was posted for evidence,the documents did not reach the bench in time.Consequently the same could not be marked and theTribunal took up the matter for hearing. Although petitionerfiled a petition to re-open the evidence, the same wasdismissed on the ground that the same was belated. Thepetitioner submits that the petitioner did not prove thedisability certificate appropriately in time not because oflatches on the part of the petitioner, but on account ofcircumstances totally beyond his control. Thereforeaccording to the counsel for the petitioner the disabilitycertificate should also be taken into consideration forawarding compensation and the compensation should beenhanced accordingly.
3. This is opposed by the counsel for the insurancecompany. It is pointed out that the petitioner did not evengive oral evidence in support of his contentions. As such the belated production of the disability certificate cannot betaken into account for the purpose of awardingcompensation is the contention raised.
4. We have considered the rival contentions indetail. The disability certificate has been issued by Dr. K.Balagopal, Assistant Professor and Orthopaedic Surgeon,Medical College Hospital, Thrissur. The petitioner producethe same along with I.A. No.6903/2006 before the Tribunalseeking re-opening the evidence to mark the saiddocument. The Tribunal dismissed the same as belated. Weare of the opinion that the Tribunal ought to have given thepetitioner an opportunity to introduce the disabilitycertificate in evidence in view of the circumstancesexplained by him, which we have narrated above. We arealso of the opinion that it would be unjust to drive thepetitioner again to the Tribunal to prove the disabilitycertificate for awarding compensation in respect of thesame also. Therefore we are inclined to mark the disabilitycertificate in evidence in this appeal allowing the I.A filed by the petitioner before the Tribunal. Accordingly the-disability certificate would stand marked asExhibitA10.5.The said certificate is issued by the AssistantProfessor and Orthopaedic Surgeon of Medical CollegeHospital, Thrissur, who treated the petitioner whichcertifies a total disability of 19.7% for the petitioner onaccount of the injuries sustained in the accident in question.The disability certificate is quite elaborate giving all thedetails of the injuries suffered by the petitioner andtreatment undergone by him. As such we are inclined toaccept the percentage of disability certified therein as thepermanent disability suffered by the petitioner. Thepetitioner's monthly salary fixed by the Tribunal wasRs.2,000/. He was aged only 21 years at the time ofaccident. Therefore the correct multiplier would be 17.Calculating on that basis, the petitioner is entitled tocompensation of Rs.80,376/-, towards permanent disability.The insurance company is directed to pay the said amountof Rs.80,376/- in addition to what has already awarded by the Tribunal. The said amount will carry interest @ 9% per annum from the date of the petition till realisation. Theinsurance company is directed to deposit the same withintwo months.
The appeal is disposed of as above.
Sd/-S. SIRI JAGAN, JUDGE.
AMG
Sd/-C.K. ABDUL REHIM, JUDGE.
True copy
P.A to Judge