IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 MACA.No. 833 of 2006 ------------------------------------ OPMV.137/1999 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/PETITIONER: PRASANTH U., S/O. KUNHAPPAN, UKKANDIL HOUSE, CHERUPUZHA, P.O. EDAVARAMBA, KANNUR DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENTS/RESPONDENT NO.3: NATIONAL INSURANCE CO. LTD., ANAND BUILDING, 1ST FLOOR, KULAI, MANGALORE. ADV. SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.A.C.A.No.833 of 2006 --------------------------------- JUDGMENT Balachandran, J. Appellant was the cleaner of lorry bearing Reg. No.KL-7/F 6649. While returning from Bombay to Kannur along with one Annesh, who was driving the lorry, on 17.7.1998, after unloading the goods at Bombay, bus bearing Reg.No. KL-19/A 472, driven by the second respondent in a rash and negligent manner through the wrong side dashed against the lorry, in which the appellant was travelling at Poppilangadi in Karnataka State. Appellant sustained serious injuries in the accident. He was taken to Government Hospital, Uduppi and after giving first aid he was referred to Kasturba Medical College Hospital, Manipal, where he continued treatment as an inpatient till 4.8.1998. Against the claim of Rs.2,50,000/-, the Tribunal awarded only an amount of Rs.78,200/-. This appeal MACA 833/06 2 is filed by the claimant seeking enhancement in compensation. As the liability to pay compensation is not in dispute, we are considering only the question of sufficiency of compensation awarded. 2. It is contended by the learned counsel for the appellant that the appellant sustained very serious injuries in the accident; that he was undergoing treatment as an inpatient for forty days and after discharge, he had appeared for six reviews as an out patient and that considering the serious nature of the injuries sustained to the appellant, pain and suffering undergone by him and the disability suffered by him, the quantum of compensation awarded is very meagre and deserves enhancement. 3. Exhibit A2 is the wound certificate issued from the Government Hospital, Uduppi. The injuries noted therein are lacerated wound on the forehead 6cm x 1cm x 1cm, lacerated wound on upper lip 2cm x ½cm x ½cm, contused abrasion on the dorsal aspect MACA 833/06 3 of the right hand and lacerated wound on the shin of the left lower leg. Exhibit A4 is the wound certificate issued from the Kasturba Medical College Hospital, Manipal. It shows that the appellant was admitted in the hospital on 17.7.1998 and was discharged on 3.8.1998. The injuries found on the body of the appellant, on examination and noted in Exhibit A4 are the following: “1. Abrasion 1 x 5cm over dorsum of right hand. 2. Laceration 1.5 x 2cm over anterior aspect of right leg. 3. Lacerated wound 1 x 1.5cm over anterior aspect of left leg. 4. Multiple abrasions over the face. 5. Multiple sutured wounds over the face. 6. Contusion both cycloids. 7. Wedge compression fracture of T12 vertebra. 8. Fracture of the mandible right and zygomatic complex fracture MACA 833/06 4 left.” Open reduction and internal fixation of fractures were done by Maxillofacial and Oral Surgeons on 28.7.1998 and the appellant was discharged with advice to take bed rest. Exhibit A3 is the disability certificate issued by Dr.Kiran Kumar Acharya, Associated Professor of Orthopaedics, Kasturba Medical College Hospital, Manipal. 4. Appellant was aged 21 at the time of the accident, as his date of birth, as evidenced from Exhibit A9 extract of school admission register, is 21.1.1978. He was a lorry cleaner. His monthly income was Rs.3,000/-, according to him. But the Tribunal accepted only Rs.1,500/- as the notional income, in the absence of proof regarding the income of the appellant. PW2, who treated the appellant, deposed that at the time of discharge appellant was advised to take bed rest for three months; that he was subjected to review on four MACA 833/06 5 occasions; that he examined the appellant on 12.4.2004 and issued Exhibit A3 disability certificate; that there is restriction of movement to his trunk, though it is not mentioned in Exhibit A3; that at present there is restriction of movement to thorasic spine; that there was malunion of fracture; that 25% of the height of the vertebra of the appellant has been collapsed and that the appellant is having 25% whole body disability. For the reason that all the disabilities made mention of by PW2 had not been recorded in Exhibit A3 disability certificate, the Tribunal was of the view that the whole body disability of the appellant could only be 15% and that 25% disability is an exaggerated figure. The Tribunal, therefore, calculated the compensation for loss of earning power and permanent disability taking the income of the appellant as Rs.1,500/- per month, accepting disability as 15% and adopting the apt multiplier 17. Appellant was cleaner of a lorry. Naturally, MACA 833/06 6 he will have to undertake long journeys and over and above his monthly salary, he will be getting bata as well. Even the income of a non earning person has to be taken as Rs.15,000/- per annum going by the second schedule to the Motor Vehicles act. Hence, considering the job of the appellant as cleaner of a lorry, we are of the view that at least Rs.2,500/- should have been taken as the monthly income of the appellant. Hence, loss of earnings for four months assessed at Rs.6,000/- by the Tribunal has to be enhanced to Rs.10,000/-. Thus, appellant would be entitled to an additional amount of Rs.4,000/- on that count. The compensation that is to be awarded to the appellant towards permanent disability and loss of earning power will be Rs.76,500/- (2500 x 12 x 15/100 x 17) in the place of Rs.45,900/- awarded by the Tribunal. Hence, the appellant would be entitled to an additional amount of Rs.30,600/- under that head. Thus, the total compensation due under those MACA 833/06 7 heads will be Rs.34,600/-. Though it is contended by the counsel for the appellant that the amounts awarded under various other heads are also very meagre, we are of the view that compensation awarded under those heads are just and reasonable and does not deserve to be interfered with. Hence, the additional compensation to which the appellant would be entitled is Rs.34,600/-. The third respondent Insurance Company shall deposit the said amount within two months from today with interest at 7% per annum from the date of application till its deposit. On such deposit, the appellant is allowed to withdraw the same. Appeal is, thus, allowed in part. (J.B.Koshy, Judge) 17th October, 2008 (K.P.Balachandran, Judge) tkv