IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 MACA.No. 1847 of 2007() ----------------------- OPMV.242/1997 of II ADDL. M.A.C.T., KOZHIKODE .................... APPELLANT/PETITIONER IN O.P.(MV) ---------------------------------------------- P.MANOHARAN, S/O.LATE CHOYI, AGED 50 YEARS, CHATHANADATHUTHAZHAM, P.O.KOTTOLI, CALICUT. BY ADV. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN RESPONDENTS/ RESPONDENTS IN O.P.(MV) -------------------------------------- 1. K.K.ASSANKOYA, S/O.ABDULLA, BHAVANA, KADALOOR, KOYILANDY, CALICUT DISTRICT, (OWNER KL 11A-1258 BUS). 2. MANI, S/O.DAMODARAN, CHAMUNDI PARAMBU, ERANHIPALAM, CALICUT DL.NO.393/82. BADGE NO 66/86, VALID UPTO 15-5-98 (DRIVER KL 11/A-1258 BUS). 3. UNITED INDIA INSURANCE COMPANY LIMITED, BRANCH OFFICE, P.B.NO.17, KALINGA BUILDING, 3RD FLOOR, MAIN ROAD, VADAKARA, POLICY NO.100305/31/40/162008/95. VALID UPTO 29-10-96, INSURER KL11/A-1258 BUS. BY ADV. SMT.P.A.REZIYA FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.A.C.A No. 1847 OF 2007 --------------------- Dated this the 23rd day of October, 2008 JUDGMENT This appeal is preferred against the award passed by the II Addl. Motor Accident Claims Tribunal, Kozhikode, in OP(MV) 242/97. The claimant, aged 40 years, sustained injuries in a road accident. The Tribunal has awarded a compensation of Rs.34,800/-. It is against that decision, the claimant has come up in appeal for enhancement. 2. Heard the counsel for both sides. Learned counsel for the Insurance Company had raised two contentions namely (i) the notional income taken at Rs.1,500/- is on the higher side and (ii) the Tribunal should not accept the disability certificate which relates to the dentistry. On the other hand, learned counsel for the claimant would contend that everything taken is on the lower side and therefore he is entitled to get additional compensation. In order to satisfy my conscience, I had perused the documents available in this case with the help of the learned counsel for the appellant. A perusal of the discharge certificate coupled with a physiotherapy card would MACA No. 1847/07 2 show that he had been visiting the hospital continuously on 17 occasions. The CT scan report would show that he had a fracture of the zygoma and zygomatic arch fracture, lateral orbital bony wall with subcutaneous soft tissue swelling and the impressions noted are multiple fractures with tiny haematoma and mild cerebral oedema. It has also to be stated that in the process of treatment, he had to visit the dentistry department. The award would reveal that two of his teeth has to be extracted. The disability certificate of 5% issued by the Medical College Hospital was accepted because it was a certificate issued by the Medical Board and not by the dentistry department alone. The disability certificate would show that the disability assessed at 5% is on account of the fact that the claimant has lost two of his teeth and for deformity. The Tribunal has not awarded any separate compensation for loss of teeth. The Tribunal did not award anything for loss of amenities and enjoyment in life. The records would reveal that this man had been persistently visiting the hospital. Therefore, I have no hesitation to award him actual loss of earning for five months. It is also to be stated that an amount of Rs.6,000/- has to be awarded towards loss of amenities and MACA No. 1847/07 3 enjoyment in life. 3. Learned counsel for the Insurance Company would contend before me that the claimant has only claimed four month's loss of earning. But when the courts are convinced about the actual loss of earning undergone by the claimant, the court is competent to grant more amount than what is claimed under a particular head. There are even decisions to the effect that more compensation can be awarded than what is claimed. Therefore, I enhance the compensation by Rs.9,000/-. In the result, the MACA is partly allowed and the claimant is entitled to an additional compensation of Rs.9,000/- with 6 % interest on the said sum from the date of petition till realisation. The Insurance company is directed to deposit the amount within a period of 60 days from the date of receipt of a copy of this judgment. M.N.KRISHNAN, JUDGE vps MACA No. 1847/07 4