IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 7TH JULY 2008 / 16TH ASHADHA 1930 MFA.No. 484 of 2003(F) -------------------------------- OPMV.2662/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/ CLAIMANT: ------------------------------------ ALEX MATTOM, S/O. JOHN PHILIP, MATTATH HOUSE, SHOBA ROAD, EDAPPALLY TOLE, COCHIN-24. BY ADV. SRI.A.A.MOHAMMED NAZIR RESPONDENTS/ RESPONDENT: --------------------------------------------- 1. ABDUL POKER, S/O. POKER ABDUL RAHMAN, AIYSHA MANZIL,SOMESHWAR,UCHILA, MANGALORE-575 001. 2. ABOOBACKER, S/O. POKER, MANJESWARAM, UDYAVAR, KASARAGOD-670 121. 3. THE ORIENTAL INSURANCE CO. LTD., CITY BRANCH NO.11, P.M. RAO ROAD, P.B.NO.16, MANGALORE-575 001. ADV. SRI.SHIRAJ ABDULLA FOR R2 SRI.MATHEWS JACOB (SR.) FOR R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ J.B. Koshy & P.N.Ravindran, JJ. -------------------------------------- M.F.A. No. 484 of 2003 --------------------------------------- Dated this the 7th day of July, 2008 Judgment Koshy,J. Appellant/Claimant sustained injuries in an accident on 7.6.1995. He claimed a compensation of Rupees Two lakhs. It was later amended to Rs.3,77,000/-. The tribunal found that the accident occurred due to the negligence of the driver of the vehicle insured by the third respondent insurance company, but, compensation awarded was only Rs.15,750/-. Only quantum of compensation is disputed in this appeal. 2. As a result of the accident, he had segmented fracture of fibula and tibia. He was treated at St. James' Hospital, Chalakudy and thereafter at Ernakulam Medical Centre immediately after the accident. He was discharged after internal fixation was given. Thereafter, there was infection and he was admitted in Trucros Hospital, Bangalore. He was referred by them to Hosmat Hospital, Bangalore for removal of implants and after removal of implants, he was again admitted due to infection of primary wounds. Ext.A7 certificate issued by Trucros Hospital reads as follows: M.F.A.No.484/2003 2 "Road traffic accident, motor cycle verses lorry, happened on 7.6.1995 near Chalakudy, now comes after the removal of steel pins which was done in Hosmat Hospital on 22.12.1996. He has been admitted in our hospital for 66 days in the month of August, 1995 due to excessive bleeding and complications due to infection in the spots of steel implants and the primary wounds. The patient was highly febrile with signs of infection at the incision made for the removal of the steel pin implants. His fractured bone was weak and he was showing signs of internal injuries. The patient was started on injection cifran 100 ml. BD land injection flagyl IV Q8 H. After two days the patient was taken to the theatre and the wounds irrigated with H2 O2 and brought back. This procedure was repeated on a 5th day basis. The patient's general condition improved after 55 days. His body temperature started behaving with in normal limits with the ESR and the total counts almost back to near normal. The patient was referred back to Hosmat Hospital for OP reviews. Since the patient feels that Hosmat is expensive he will have the pin removal done at Hosmat and shall be readmitted for full recovery in this hospital." He was a Software Engineer employed in Benchmark Labs, Bangalore. He was treated at Ernakulam and Bangalore and he produced bills for the same. He amended the claim petition also. The Apex Court in Nagappa v. Gurudayal Singh and others (2002 AIR SCW 5348) held that the tribunal shall consider the expenses M.F.A.No.484/2003 3 incurred after filing of the application regarding medical treatment and compensation can be awarded taking into account that also. Here, the amendment application was filed inclusive of the medical expenses incurred at Bangalore. The tribunal has granted only Rs.3,440/- towards reimbursement of medical expenses. Bills produced from Bangalore hospital was not allowed. For inpatient treatment for three months at Trucros Hospital at Bangalore and Hosmat Hospital, Bangalore were not considered. According to the claimant, he spent more than Rupees Two lakhs for medical expenses already. Considering the medical expenses, we are of the opinion that Rs.1,00,000/- more should be awarded for the treatment at Ernakulam and Bangalore. The tribunal found that he was under treatment for two months and awarded an amount of Rs.4,000/- towards loss of earnings. According to the claimant, his monthly income was Rs.20,000/- at Bangalore. Ext.A6 is the salary certificate to prove the same. The certificates produced show that he was again admitted as an inpatient for about three months in Trucros Hospital and Hosmat Hospital, Bangalore due to infection and removal of implants and for other treatment. Tribunal has awarded only Rs.4,000/- for loss of actual earnings assessing his monthly wages at Rs.2,000/- and he was under treatment for two M.F.A.No.484/2003 4 months. For completion of treatment of both bones which are weight bearing, at least, minimum three months' time is necessary. Taking all these facts into account, at least Rs.30,000/- more should be awarded for actual loss of earnings. It is true that the claimant did not produce any certificate for permanent disability. We are of opinion that since he was a Software Engineer, we are of the opinion that no compensation shall be awarded for permanent disability as he can continue the job after treatment without any reduction in salary. Therefore, additional compensation payable will be Rs.1,30,000/- with 7.5% interest from the date of amendment of the application till the date of deposit. On deposit of the amount, appellant is allowed to withdraw the same. J.B.Koshy Judge P.N.Ravindran Judge vaa M.F.A.No.484/2003 5 J.B. KOSHY AND P.N.RAVINDRAN,JJ. ------------------------------------- M.F.A. No. 484 of 2003 ------------------------------------- Judgment Dated:7th July, 2008