IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 15TH OCTOBER 2010 / 23RD ASWINA 1932 MACA.No. 458 of 2006() ---------------------- ( O.P.(MV)NO.1164/2000 OF MACT, ATTINGAL) APPELLANT(S): APPELLANT/APPLICANT --------------------------------- SHIHABUDEEN ALIAS SHIHAB, S/O.ABUBACKER, CHALAPPALLY VEEDU, M.C.C.ROAD, THURAVOOR (PO), CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.NAGARAJ NARAYANAN RESPONDENT(S): RESPONDENTS --------------- 1. A.MOHAMMED SHAHUL HAMEED, S/O.ABDUL JABAR, KODIMEL KODIPUTHEN VEEDU, JONAKAPURAM, KOLLAM-6. 2. SHAREEF, S/O.HYDROSKUNJU, KANJIRAMVILA VADAKKATHIL VEEDU, NEAR MOSQUE, THRIPPALAZHIKOM, KOLLAM DISTRICT. 3. M/S.UNITED INDIA INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE NO.1, CWC BUILDING, LMS COMPOUND, PALAYAM, TRIVANDRUM. ADV. SRI.R.T.PRADEEP FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.458 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of October, 2010 JUDGMENT Basheer, J. Appellant sustained certain injuries in a road traffic accident and claimed compensation for those injuries from the owner,driver and insurer of the offending vehicle. The Tribunal after considering the documentary evidence available on record, awarded a sum of Rs. 32,520/- with 9% interest and directed the owner and driver to pay the said amount to the claimant. In other words, the Tribunal exonerated the Insurance Company from the liability to pay compensation. The appellant/claimant impugns the correctness of the award passed by the Tribunal in this appeal. 2. It is pointed out by learned counsel that the Tribunal was not at all justified in exonerating the Insurance Company from the liability. The accident occurred around mid-night of July 7, 2000. The policy issued by the Insurance Company, a copy of which was produced before the Tribunal as Ext.B1, reveals that the policy was effective from the mid-night of July 8, 2000 till the mid-night of 7th MACA.No.458/2006 2 July 2001. According to the Insurance Company since the accident occurred on July 7 and the policy became effective only from the 8th, the Insurance Company would not be liable. 3. Ext.A1 is the copy of the First Information Statement given by the claimant before the Mangalapuram Police Station in connection with the above accident. The police had registered Crime No. 219/2000 on the basis of the above statement which is seen to have been recorded by the police at 11.30 a.m. on July 8, 2000. In the statement recorded by the Head Constable at the Medical College Hospital at 9 a.m., it is seen stated by the claimant that the accident had occurred on the previous night at 12 0'clock , while he was returning from the church, where he had gone to take food. 4. It is significant to note that in the said statement recorded at 9 a.m. on July 8, 2000, the claimant had specifically mentioned that the incident took place on the previous night at or about 12 0'clock. The policy also came into effect from the mid-night of 8th since, as could be seen from Ext.B1 policy, the premium was paid on the 7th of July. MACA.No.458/2006 3 5. In that view of the matter, the contention raised by the appellant is liable to be allowed. We do so. It is held that the Insurance Company would be liable to pay the compensation to the claimant. 6. We have perused the award passed by the Tribunal. We have also considered the nature of the injuries sustained by the claimant. In Ext.A10 disability certificate, the Orthopaedician attached to the Medical College Hospital, Thiruvananthapuram found that the claimant had : 1) Malunited fracture ( Rt) Tibia with excess callus and persistent pain over fracture union site. 2) Quadriceps wasting of 4 cm. ( Rt) thigh. 3) Healed scar over anterior aspect of ( Rt) knee. 4) Persistent tenderness ( Rt) knee joint with limitation of terminal degrees of flexion and extension. 5) Sensory numbness over the lower half of ( Rt) knee. 7. The doctor further certified that the claimant had suffered a permanent residual disability of 7% as per Mc Bride's Scale. But the Tribunal reckoned the disability as only 3% and fixed the compensation under the head of disability at Rs. 11,520/- by applying the multiplier of 16. MACA.No.458/2006 4 8. In our view there is no justification in reducing the percentage of disability going by the nature of the injuries sustained by the claimant and also in view of the certification given by the doctor as regards the percentage of disability. Therefore, the disability compensation shall be recalculated thus : 2000 x 12 x 16 x 7/100 9. The compensation payable under this head would come to Rs. 26,880/- in lieu of Rs. 11,520/-. In other words, the appellant will be entitled to get an additional sum of Rs.15,360/-. The award is modified to the above extent as far as the quantum of compensation is concerned. The appeal is allowed directing the Insurance Company to pay the entire compensation to the appellant. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.458/2006 5 MACA.No.458/2006 6