Kerala High Court
Uthuppasseri Mini vs United India Insurance Co. Ltd on 5 July, 2012
Author: Harun-Ul-Rashid
Bench: Harun-Ul-Rashid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID
WEDNESDAY, THE 13TH DAY OF FEBRUARY 2013/24TH MAGHA 1934
MACA.No. 2393 of 2012 ()
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AGAINST THE AWARD IN OPMV.325/2009 of M.A.C.T., MANJERI
DATED 05-07-2012
APPELLANT/PETITIONER:
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UTHUPPASSERI MINI
AGED 29 YEARS, W/O.JIJI, KOCHERIKUNDU
KEEZHATTURAMSOM, P.O.KIZHATTOOR, PERINTHALMANNA TALUK
MALAPPURAM DISTRICT.
BY ADVS.SRI.P.SAMSUDIN
SMT.NIMA JACOB
RESPONDENT/3RD RESPONDENT:
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UNITED INDIA INSURANCE CO. LTD
DIVISIONAL OFFICE, ARAFA BUILDING, COURT ROAD
MANJERI - 676 121 (INSURER).
BY ADV. SRI.UNNI.K.K. (EZHUMATTOOR)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 13-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
HARUN-UL-RASHID,J.
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M.A.C.A.NO.2393 OF 2012
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DATED THIS THE 13TH DAY OF FEBRUARY, 2013
JUDGMENT
The claimant in O.P.(MV).No.325/2009 on the file of the Motor Accidents Claims Tribunal, Manjeri is the appellant. The appeal is directed against the award dated 5/7/2012 in the original petition. The Tribunal allowed the claimant to recover a sum of `15,333/- with interest at 9% per annum. The claimant is aggrieved by the quantum of compensation awarded. The date of accident is on 28/11/2008. The claimant was hit by a motorcycle driven by the lst respondent as a result of which she sustained injuries. The parties are hereinafter referred to as the claimant and respondents as arrayed in the original petition.
2. Respondents 1 and 2 remained ex parte. Before the Tribunal, the Insurance Company alone contested the case. The Insurance Company admitted the insurance cover for the offending vehicle, but subjected their liability to compensate the claimant on -2- M.A.C.A.No.2393/2012 sufficient proof of the accident, the negligence of the lst respondent and the injuries sustained by her. Exts.A1 to A5 were marked on the side of the claimant. The claimant was examined as PW-1. Ext.A2 is the wound certificate. The claimant sustained fracture of lateral malleolus on the left foot and was hospitalised for four days. According to Ext.A3 discharge summary, it was a spiral fracture. Claimant had five reviews after discharge. Ext.A4 series bills indicates that she had spent `8,933-41 for her medicines and treatment.
3. Claimant was working as Nurse in a private hospital. Ext.A5 is the certificate showing the details of her service and salary. She was drawing `3,950/- as monthly salary. Ext.A5 also shows that she was on leave for five months after the accident. The Tribunal declined to grant compensation for loss of earning stating that there is no proof to show that the claimant was on leave without pay and allowances for the period of five months and that therefore it cannot be presumed that she had lost her salary due to -3- M.A.C.A.No.2393/2012 the accident and subsequent availing of leave. Ext.A3 discharge certificate shows that there was spiral fracture and that the claimant had five reviews after discharge. Claimant was treated as inpatient for four days. The evidence shows that she continued the treatment for the following months.
4. Considering the fact that the injury was sustained by her, that the claimant was on leave for five months after the accident, and that her five reviews after discharge, this Court is of the view that the claimant is entitled to loss of earning at least two months. Accordingly, the claimant is entitled to `8,000/- as compensation for loss of earning. Considering the nature of the injuries sustained and other facts and circumstances, the compensation of `5,000/- awarded for pain and suffering is not adequate and sufficient. Therefore, this Court re-fix the compensation for pain and suffering as `10,000/-. Deducting `5000/- already awarded the claimant is entitled to additional compensation of `5000/-. Thus the claimant is entitled to total -4- M.A.C.A.No.2393/2012 additional compensation of `13,000/-.
In the result, the appeal is partly allowed. The award under appeal is modified. The claimant is entitled to total additional compensation of `13,000/- with interest at the rate of 9% per annum. In all other respects, the findings recorded by the Tribunal shall stand.
HARUN-UL-RASHID, JUDGE.
kcv.
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