IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 MACA.No. 849 of 2007(F) OPMV.1515/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT/PETITIONER PRADEEP, S/O.LATE BALAKRISHNA PANIKKAR, RESIDING AT KALARIKKAL HOUSE, A.T.M.NAGAR, NELLEPPILLY P.O., CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. MR.V.CHITAMBARESH, SENIOR ADVOCATE MR.T.C.SURESH MENON MR.JIBU P THOMAS MR.SUNIL J.CHAKKALACKAL RESPONDENTS/ RESPONDENTS 1. A.K.APPUKUTTAN, S/O.KANDAN, RESIDING AT KUNNATHKALAM, ERATTAKKULAM, ELAPPULLY, PALAKKAD. 2. KRISHNA DAS, S/O KUTTIKRISHNAN, RESIDING AT KALLANKADU, NALLEPPILLY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 3. THE NATIONAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, PALAKKAD. ADV.MR.RAJAN.P.KALLIYATH MR.RAJESH SIVARAMANKUTTY FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/11/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON, JJ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 849 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of NOVEMBER, 2009 J U D G M E N T P.R. RAMACHANDRA MENON, J 1. Appeal is for enhancement of the compensation awarded by the Tribunal. 2. The accident occurred on 7/4/2000 when the appellant/claimant, a minor boy aged 13 years, while walking down on the road was hit by a tractor bearing No.KL-9B 5119 owned by the first respondent, driven by the second respondent and insured by the third respondent, causing serious injuries which led to the claim petition. 3. The first and second respondents did not choose to contest the matter and were set ex-parte before the Tribunal. The claim was resisted only by the Insurance Company. However, no statutory ground of defence as provided under Section 149(2) of the Motor Vehicles Act was stated as available and the dispute rather stood MACA NO.849/2007 2 confined to the question of negligence and quantum, on the strength of the sanction stated as obtained to have wider defence under Section 170 of the said Act. 4. The evidence consists of the oral testimony of the claimant who was examined as PW1 and the documents produced as Ext.A1 to A16, besides the Report of the Medical Board (issued by the Palakkad District Hospital) produced and marked as Ext.X1 from the part of the claimant, while no evidence, either oral or documentary, was adduced from the part of the respondent/insurer. On conclusion of the trial, the Tribunal arrived at a finding that the accident was only because of the negligence on the part of the second respondent, driver of the tractor; that the claim preferred simultaneously under Section 163(A) and Section 166 of the Motor Vehicles Act was only because of the lack of proper understanding as to scope of the above provisions and that the claim was being entertained only under Section 166 of the Motor Vehicles Act. MACA NO.849/2007 3 5. After fixing the negligence on the driver of the Tractor, the Tribunal proceeded to work out the quantum, based on the serious nature of the injuries sustained by the claimant, involving permanent disability to an extent of 12% as certified by the Medical Board vide Ext.X1. However, observing that it was not a summoned document, the Tribunal held that the claimant had not proved the disability certificate and accordingly rejected the claim for compensation under the head of permanent disability in- toto, while awarding only a sum of Rs.5,550/- towards bystander's expenses. Taking note of the hospitalization for a span of 37 days, Rs.1850/- was awarded towards extra nourishment, Rs.400/- towards damage to clothing, Rs.15,650/- towards the medical expenses and Rs.14,000/- towards pain and suffering; thus awarding a total sum of Rs.42,500/- which was directed to be satisfied by the insurer with interest @6% per annum. The claimant is before this Court, challenging the course pursued by the MACA NO.849/2007 4 Tribunal for not granting any amount towards the permanent disability covered by Ext.X1 certificate issued by the Medical Board and for under some other heads including transportation expenses and further as to the inadequacy of the compensation awarded under various heads. 6. Mr. Rajan P Kalliyath, appearing for the Insurance Company seeks to support of the Award, stating that none of the members of the Medical Board was examined before the Tribunal and as such, it cannot be held that the injuries had actually resulted in any permanent disability. But the fact remains that Ext.X1 certificate was not issued by some or other Doctor, but by a duly constituted Medical Board consisting of different doctors representing different faculties and the extent of permanent disability was certified as 12% on the basis of the relative inferences made by the members of the said team. Why the said certificate issued by the Medical Board was not acceptable and as to MACA NO.849/2007 5 why the claim for compensation in respect of the permanent disability was denied in-toto is not discernible from the discussion made by the Tribunal, but for stating that Ext.X1 was not a summoned document. More so, when there was absolutely no case for the insurer that the disability certificate issued by the Medical Board was not liable to be accepted and further when, no evidence was adduced from the part of the insurer as to the credibility of the said certificate or on such other vital particulars which govern the fixation of quantum. In such circumstance, we find that the rejection of the Ext.X1 certificate and denial of compensation towards the permanent disability by the Tribunal is not liable to be sustained. Reckoning the extent of permanent disability as certified by the Medical Board and also reckoning the notional income as Rs.15,000/- per annum as provided in the Second Schedule to Section 16(A) of the Motor Vehicles Act and further adopting a multiplier of 15 (taking note of the age of the minor boy), we find that MACA NO.849/2007 6 a sum of Rs.27,000/- is liable to be awarded to the appellant/claimant under this head (Rs.15,000 x 12/100 x 15). 7. There is considerable force in the submissions made by the learned counsel for the appellant, with regard to the expenses stated as incurred in connection with the treatment. Taking note of the extent of hospitalization spreading over nearly 37 days, the serious nature of the injuries sustained as revealed from Ext.A5 and A6 discharge card/discharge summary, the treatment undergone by the appellant in the Medical College Hospital, Trissur on reference from the Government Hospital, Chittoor, as discussed in para. 8 and 11 of the Award, we have absolutely no doubt that the claimant/appellant would have incurred much amount towards the transportation expenses as well. Eventhough the appellant has not produced any tangible documentary evidence in this regard, we find that a lump sum compensation of Rs.2,000/- can be awarded MACA NO.849/2007 7 under this head as well. 8. Thus, the appellant is entitled to have a further sum of Rs.29,000/- as the balance compensation payable in respect of the injuries sustained in the accident occurred on 7/4/2000, which is hereby awarded, so as to make the Award a 'just' one. The said amount shall carry interest @7% per annum from the date of the application, till the date of payment. We also make it clear that the amount already awarded by the Tribunal will also carry interest @7%. The amount payable as above shall be deposited by the third respondent/insurer as expeditiously as possible, at any rate within two months from the date of receipt of a copy of this judgment. Appeal is allowed to above extent. No cost. P.R.RAMAN, JUDGE P.R. RAMACHANDRA MENON, JUDGE nl