IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 13TH FEBRUARY 2008 / 24TH MAGHA 1929 MFA.No. 1331 of 2002(B) ----------------------- OPMV.484/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT: PETITIONER: ---------------------------------------- THANKAPPAN S/O. KRISHNAN, MAMPALLIKKUDIYIL HOUSE, BLOCK NO.1, INJATHOTTY P.O., KUTTAMPUZHA VILLAGE. BY ADV. SRI.H.SIVARAMAN SRI.MATHEW CHERIAN RESPONDENTS: RESPONDENTS: -------------------------------------------------- 1. T.R.GOPALAKRISHNAN NAIR, THELEKKATTU HOUSE, ELEMCHARA KARA, ERAMALLOOR VILLAGE. 2. K.V.DAS, S/O. VELAYUDHAN, KADAYETHU HOUSE, KEERAMPARA, PUNNAKKADU, KOTHAMANGALAM. 3. ORIENTAL INSURANCE CO.LTD., KOTHAMANGALAM. R3 BY ADV. SRI.MATHEWS JACOB THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B.KOSHY & K.HEMA, JJ. -------------------------------------- M.F.A.No.1331 OF 2002 ------------------------------------- Dated 13th February, 2008 JUDGMENT Koshy,J . Appellant/claimant sustained serious injuries in a motor accident. Back wheel of the lorry ran over his left foot. The lorry was owned by the second respondent. The accident occurred due to the negligence of the first respondent driver of the lorry insured by the third respondent insurance company. Against a claim of Rs.5,00,0000/= the total compensation calculated by the Tribunal was only Rs.2,03,750/=. Tribunal also found that there was 10% contributory negligence on the part of the appellant and if the appellant was vigilant, the accident would not have been occurred. From the above amount 10% was deducted and Rs.1,83,375/= was awarded. After considering the scene mahazar, F.I.R and other documents and evidence adduced in this case, we are of the opinion that no interference is needed in the 10% contributory negligence attributed to the appellant. With regard to the injuries suffered, Ext.A4 medical certificate shows the following injuries: “Diagnosis: Crush injury (L) foot and ankle with skin and soft tissues loss over the heel with absent calcaneum. MFA.1331/2002 2 Treatment: (L) LD Muscle transfer to (L) foot H/O.R.T.A. Treated at Lissy Hospital, Referred here for reconstructing (L) Heel Pad. O/E (L) foot is on external fixator. Infected wound (L) foot involving heel, Dorsum of foot achilles and ankle region. Non viable bare calcaneum is exposed. Disrupted achilles Pereneal tendons. Re-construction: Multiple debridements and re- adjustments of external fixator was done on 18.1.1996 and 1.2.1996. Re- construction of the (L) heel Pad using Free (L) LD Muscle Transfer. Final Defect: Skin and Soft tissue loss over the Dorsum, lateral aspect, Lateral mallelolus region and heel and achilles region. No calcaneum. P.T.A. and VC exposed as recipient vessels. Lt. LD Muscle harvested. Flap inset. Anastamosis 1 artery and 1 vein using 10/0Ethilon under Microscope. Motor nerve of the muscle was anastomosed to the deep pereneal nerve. Immediate pink up. Muscle flap was covered with S.S.G. Donor sites repaired in layers. Window sites were covered with S.S.G. On 26.2.96. All the wounds have healed and the external fixator MFA.1331/2002 3 was removed and the leg was put in POP cast on 5.3.1996.” The medical certificate further shows that five operations were conducted and he has undergone a very long treatment. He was treated as an inpatient almost for three months. Ext.A5 certificate shows that he has suffered permanent disability of 30%. The Tribunal found that as a result of the accident he will not be able to do the work of a loading worker. Tribunal held as follows: “Naturally the said disability sustained by the petitioner on his left foot will affect his earning capacity and amenities and enjoyment of life to a considerable extent. It is also seen from Ext.A9 photographs that a substantial disfiguration has been caused to his left leg due to the injuries sustained by him in the accident. As the petitioner was a loading worker it may not at all be possible for him to do the same work on account of the disability sustained by him.” He was a registered headload worker and his monthly income was Rs.3,000/=, but, Tribunal did not award any compensation on a multiplier method. Tribunal has to adopt some scientific method for calculating compensation instead of awarding compensation in a lumpsum without any basis. The appellant was aged 43. Taking guidance from the second schedule, 15 can be taken as the multiplier. If that be so, MFA.1331/2002 4 compensation payable will be Rs.1,62,000/= (3,000 x 12 x 15 x 30). 10 0 Tribunal has granted only Rs.80,000/=. Therefore, the additional amount is Rs.82,000/=. Tribunal found that there was disfiguration and it will cause mental agony to him. He has to carry on with the disability till the end of his life. Therefore, for disfiguration and loss of amenities, we award Rs.5,000/=. Even though it was argued that compensation granted under all other heads are inadequate, considering the total amount awarded, no enhancement is necessary under other heads. Hence, the additional amount will come at Rs.87,000/=. Out of the above amount of Rs.87,000/=, 10% has to be deducted for contributory negligence. Therefore, compensation payable will be Rs.78,300/=. The above amount of Rs.78,300/= shall be deposited by the third respondent insurance company with 7.5% interest from the date of application till the date of deposit, over and above the amount decreed by the Tribunal. On deposit of the amount, appellant is allowed to withdraw the same. The appeal is partly allowed. J.B.KOSHY JUDGE K.HEMA JUDGE tks