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2018 DIGILAW 878 (KER)

Abdulla, S/o Moidi v. K. Moidu

2018-10-31

K.VINOD CHANDRAN

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JUDGMENT : The preliminary objection raised by the Insurance Company is on the maintainability of the appeal relying on [ (2006) 4 KLT 828 ] Ajesh Alex v. John and others. The learned Counsel appearing for the claimant/appellant submits that in an unnumbered order of a Division Bench of this Court, in Unnumbered Z.M.A.C.A No.56/2015, a contrary view has been taken. Here the appellant claimed a total amount of Rs.2,00,000/- and the award was only 7,000/-. Hence the appeal by the claimant is maintainable; since definitely the amount in dispute in the appeal is not that was awarded, but the failure to award more, to the extent of Rs.1,93,000/-; is the contention. 2. I do not think even the order in Ajesh Alex (supra) would stand against the appeal being considered. That was also an unnumbered case in which the learned Single Judge had directed numbering on the following reasoning. Paragraph 7 is extracted hereunder: "The conclusion of the aforesaid discussion is that in cases, as in the present one, where the appeal is by a debtor under the award and the award amount, inclusive of compensation, costs and interest accrued till the date of award, is Rs.10,000/- or above, an appeal would lie under S.173 of the Act". 3. The appeal therein was filed by a debtor in the award, meaning the registered owner of the offending vehicle; who was mulcted with the liability to satisfy the award amounts. Even then, the learned Single Judge found that the total liability with interest would be above Rs.10,000/- and hence directed numbering of the appeal. Therein it was found that the use of the words “amount in dispute in the appeal” in sub-section (2) of Section 173 as distinguished from the “compensation” fixed under Section 168, was a clear indication that the former was not confined to the compensation awarded. A Division Bench decision win Oriental Fire and General Insurance Co. Ltd. Vs Narayani Amma ( 1984 KLT 410 ) was distinguished finding that there the Division Bench only declared that the future interest accruing by virtue of the decree, till the date of filing of appeal cannot be added to determine the amount in dispute in the appeal. A Division Bench decision win Oriental Fire and General Insurance Co. Ltd. Vs Narayani Amma ( 1984 KLT 410 ) was distinguished finding that there the Division Bench only declared that the future interest accruing by virtue of the decree, till the date of filing of appeal cannot be added to determine the amount in dispute in the appeal. In Ajesh Alex (supra), the amounts awarded and the interest accruing till the date of award as also the costs took the total above the limit prescribed, and hence the appeal was held to be maintainable. 4. This question does not arise in the present appeal which is by the claimant. As far as the claimant is concerned the amount in dispute in the appeal is the difference between that claimed and awarded by the Tribunal. The preliminary objection hence would stand rejected. 5. The appellant injured was involved in an accident on 25.02.2002 when he was walking along the road when a motor bike hit him. The negligence was found on the motor bike which vehicle had a valid insurance policy. 6. The appellant suffered following injuries as recorded by the Tribunal; extracted below:- ''Fracture on right tibia and fibula was suspected as a contusion was found on knee joint. An abrasion was found on left leg. X-ray was taken. But the result of this process is not seen provided. Having gone through the accident register-cum-wound certificate, this Court does not find any suspicion having been recorded in the certificate. There were fractures suffered by the appellant. The Tribunal had also looked at two sets of bill produced of Rs.9,005/- and other for Rs.7,243/-. However, it is stated that the bills did not reveal the nature of the injury or nature of the treatment undergone. It is also stated that the genuineness some of the bills were disputed. The Tribunal also felt unable to find prove for the medical bills. 7. This Court does not approve of the recalcitrant attitude adopted by the Tribunal. The injury suffered including the fracture is very clear from Ext.A1 wound certificate. The medical bills produced are also proximate to the accident. In such circumstances, the entire claim for medical bills has to be granted. 8. Though a claim for disability was raised, it was given up later, after having filed two applications to refer the claimant for medical examination. The medical bills produced are also proximate to the accident. In such circumstances, the entire claim for medical bills has to be granted. 8. Though a claim for disability was raised, it was given up later, after having filed two applications to refer the claimant for medical examination. The Tribunal granted an award of Rs.7,000/- on a consolidated basis against which the present appeal is filed. 9. The appellant asserted an income of Rs.7,000/- and contended that he is a mason by profession. There was no evidence produced insofar as his employment as a mason. In the year 2004 the Hon'ble Supreme Court in Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) AIR SC 2951] found a coolie to have a monthly income of Rs.4500/-. The present accident occurred in the year 2002 and a reasonable income of Rs.4,500/- per month can be adopted for the skilled work, the claimant is asserted to be employed in. The appellant was hospitalised for 30 days. The injured is said to have been incapacitated for a period of three months, hence loss of earnings also have to be granted. In such circumstances, the following enhancement is granted. Sl. No. Head of Claim Amount awarded by the Tribunal ` Total amount after enhancement in appeal 1 Loss of earnings 13500 2 Pain and suffering 10000 3 Transportation Expenses 1000 4 Medical expenses 16248 4 Extra nourishment 5000 5 Damage to clothing 500 6 Bystander Expenses 6000 (200*30) Total Consolidated amount of Rs.7000/- 52248 The above appeal is allowed and it is directed that the compensation as awarded by this Court after deducting what has been paid, shall be disbursed within a period of two months from the date of receipt of a certified copy of this judgment with costs and interest at the rate as awarded by the Tribunal.