IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 MACA.No. 668 of 2004() ---------------------- OPMV.6/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PETITIONER. ----------------------------------- JOSE AGED 43 YEARS, S/O.MATHAI, CHOORAKKAL HOUSE, R/A. AT KORATTY, KIZHAKKUMURI VILLAGE, NALUKETTU DESOM, NALUKETTU P.O MUKUNDAPURAM TALUK, THRISSUR DISTRICT 680 308. BY ADV. SRI.C.V.SHAJU SRI.JESWIN P.VARGHESE RESPONDENT(S): --------------- 1. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. 2. P.J.VARGHESE, S/O.P.P.JOSEPH, PARATHUR HOUSE, KALLANTHANJUR, THRISSUR. ADV. SRI.JAMES KOSHY.N., SC. KSRTC FOR R1 SRI.K.PRABHAKARAN, SC, K.S.R.T.C. FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. ```````````````````````````````````````````````````` M.A.C.A. No. 668 OF 2004 ```````````````````````````````````````````````````` Dated this the 28th day of May, 2009 J U D G M E N T Joseph, J. Appellant is the claimant in a petition filed under section 166 of the Motor Vehicles Act. The Tribunal has passed an award in a sum of Rs.3,62,000/-. The appellant is aggrieved by the inadequacy of the award. 2. We heard learned counsel for the appellant and learned counsel appearing on behalf of the first respondent. Learned counsel for the appellant Sri.Jeswin P.Varghese would essentially canvass three grievances before us. In the first place, he would submit that the amount awarded towards bystander's expense is only Rs.5,000/- as against the claim of Rs.20,000/-. He would submit that this is a case where having regard to the nature of the injuries, which we shall refer to later on, and the nature of the disability incurred and the hospitalisation involved, the amount awarded is too meagre. Secondly, he would submit that as against the claim of Rs.10,000/- towards extra MACA.668/04 : 2 : nourishment, no amount has been awarded. Lastly, he would point out that the amount awarded towards loss of earning power is only Rs.1,44,000/- which is too meagre. In order to appreciate the aforesaid contention it is necessary to refer to the condition of the patient which is referred to in the impugned judgment. It reads as follows. “1. Doppler study of the right lower limb shows incompetence of the deep veins of thigh (R) and incompetent of superficial vein of the right lower limb. 2. Persistent oedema still present over right lower limb which increase during walking and instanding. He also get severe aching type of pain over right lower limb during muscles on actions. 3. Complete loss of vision due to total optic atrophy on left eye in view of the afferent pupillary defect, defective vision and fundus findings. In his right eye also he is having pallor of right disc, vision is defective to 6/18 with partial optic atrophy in his right eye as a part of the sequelae of the trauma he sustained during the accident. 4. Patient is till having amnesia and anosmia(absence of smell). 5. Recurrent attack of post traumatic MACA.668/04 : 3 : convulsions (Epileptic attacks). 6. Fear of facing problems and lack of taking decisions.” 3. It is pointed out by the learned counsel for the appellant that the appellant who was a mechanic has become completely blind in the left eye and he has become 40% visually disabled in regard to the second eye. It is pointed out that he has three children, he was aged 39 years and he has become unfit to do any work and he cannot do anything without assistance. He pointed out that the disability has been assessed at 100% but in calculating the loss of earning power, the percentage of disability is illegally fixed at 50%. This is a fit case, he contends, the percentage should be enhanced to 100% having regard to the nature of the injuries and the finding of the Tribunal. 4. As regards the extra nourishment concerned, we think that the appellant should be awarded Rs.5,000/-. Further, we feel that the appellant should be given an enhancement by Rs.5,000/- in regard to bystander's expenses. The major claim, of course, is in relation to loss of earning power. The Doctor, who was examined, has spoken as follows. MACA.668/04 : 4 : “ I am working as Assistant Professor of Surgery and Deputy Superintendent, MCH Trichur. I have examined C.M.Jose, aged 42, on 18.2.03 and issued a disability certificated dated 8.3.03. Ext.A36 is the certificate issued by me. His right leg has a deep vein thrombosis and its complications. He was referred to the ophthalmologist, and neurologist. I have received reports from these departments also. Based on those reports also I have issued the disability certificate. He has total blindness to the left eye and partial blindness to the right eye, due to optic nerve injury. This patient developed deep vein thrombosis. He was reported to have amnesia, convulsion and psychiatric disturbances, anosmea. He was assessed to have 40% opthalmic disability. It is not possible for him to do any gainful employment or manual work. The previous treatment records of the patient was perused by me. Vision loss cannot be cured by treatment. Convulsion, we cannot say, whether it can be cured by drugs. May have slight improvement by drugs. Thrombosis, further complications can be controlled by drugs and elastic compression bandage.” 5. We also notice that the appellant's income fixed is Rs.1,500/-. We would think, having regard to the totality of the MACA.668/04 : 5 : injuries suffered and the material placed before us, the percentage of disability arrived is clearly inadequate. The appellant has lost his vision of the left eye. There is evidence to show that he has lost 40% vision in the right eye also. It is stated that he is still having amnesia and anosmea(absence of smell). He is having epileptic attacks. Having regard to his employment and age and all the factors which have been referred to, we would think that interest of justice will be met if the percentage of disability is fixed as 80% instead of 50%. This would mean that the appellant is entitled to Rs.86,400/- more under the head loss of earning power. Thus, the appellant is entitled to a total sum of Rs.96,400/-. Accordingly, we allow the appeal in part and award a further sum of Rs.96,400/- with interest at 7.5% from the date of the petition till the date of realisation. We award the amount against the respondents. Sd/- (K.M.JOSEPH, JUDGE) Sd/- (M.L. JOSEPH FRANCIS, JUDGE) aks // TRUE COPY // P.A. TO JUDGE