IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 MACA.No. 339 of 2006() ---------------------- OPMV.362/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT-PETITIONER: ------------------------------ TOMY @ VINCENT, S/O.JOSEPH, PUNNOLIKUNNEL HOUSE, KUNTHALAMPARA KARA, KATTAPPANA SOUTH P.O., KATTAPPANA VILLAGE. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENTS-RESPONDENTS: ------------------------------------ 1. BOBAN.M, ACHANPARAMBIL, SANYSIODA. 2. THE NEW INDIA ASSURANCE CO. LTD., KOTTAYAM. BY ADV. SRI.P.G.GANAPPAN FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. ------------------------------- M.A.C.A.NO.339 OF 2006 (A) ----------------------------------- Dated this the 27th day of August, 2008 J U D G M E N T KOSHY,J. Appellant/claimant sustained injuries in a motor accident on 28.9.1999. He claimed a compensation of Rs.2,25,000/-. The Tribunal awarded only an amount of Rs.85,025/- including medical expenses and only dispute is regarding the quantum of compensation. 2. As far as the injuries are concerned, Ext.A3 is the wound certificate, Ext.A5 is the discharge card and Exts.A7 and A10 are the treatment certificate and discharge summary. It shows that there was crush injury on the right foot and triangular wound on the right heel exposing bones and tendon. The medical certificate and treatment certificate also shows that appellant was referred from St. John's Hospital, Kattappana to the Medical Trust Hospital and from the MACA.339/06 2 Medical Trust Hospital, after treatment, he was again send back to St. John's Hospital, Kattappana for further treatment. It also shows that he had multiple lacerations on the heel with deficiency of the posterior 1/3 rd of the calcaneum and distal end of Tendo-Achilles. He also had avulsion of the heel pad. He underwent wound debridment, reattachment of the Tendo-Achillis to the residual calcaneum. Thereafter he was referred for Plastic Surgery and that was done. He was under inpatient treatment for 28 days. He claimed the medical expenses amounting to Rs.37,746/- considering the actual medical bills produced by him. It is the contention of the appellant that after the award also, he continued treatment and produced medical bills and transportation expenses before this Court contending that, after the award, he incurred expenses amounting to Rs.16,700/- for medical and transportation expenses. The medical certificate produced before the Tribunal shows that for a period of 28 days, he was under treatment in a Hospital and only Rs.2,800/- was granted for bystander's expenses. It is submitted that for inpatient treatment there will be many expenses incurred which are not covered by the actual medical bills. Considering the MACA.339/06 3 treatment undergone, we are of the opinion that another Rs.5,000/- should be awarded for reimbursement of medical expenses. With regard to the monthly income, according to the appellant, he was an agriculturist and his monthly income is Rs.4,000/- per month. But Tribunal has taken only Rs.1,500/- as the monthly income. He was aged 34 years. He was maintaining a family out of the income earned by him. Considering these circumstances, we are of the opinion that the Tribunal ought have fixed atleast Rs.2,500/- as the monthly income taking Rs.100/- as the daily income for a period of 25 days work in a month. Considering the disability, the Medical Board certified 12% disability. But Tribunal has taken only 8% disability. It is the case of the appellant that he is unable to do agricultural operations because of the crush injury and he is under treatment. We are of the opinion that there is no reason for the Tribunal to reduce the disability certified by the Medical Board from 12% to 8%. Therefore, compensation should be granted for 12% disability. Tribunal has taken 17 as the multiplier taking the 2nd Schedule as the guideline. If that be so, compensation payable for permanent disability will be Rs.2,500 x 12 x 12/100 x 17 = Rs.61,200/-. MACA.339/06 4 Tribunal has awarded only Rs.24,480/- towards permanent disability and loss of earning power. Therefore, additional amount payable under these heads will be Rs.36,720/-. He was under inpatient treatment for 28 days. Medical certificate shows that he was not allowed to hang the leg or for normal walk for about three months and only one months' loss of earning was granted by the Tribunal. He cannot do any work at all for about three months. Therefore, we are of the opinion that atleast Rs.7,500/- ought have been allowed for actual loss of earnings for three months. The Tribunal has already granted Rs.1,500/- as loss of earnings. Therefore, additional amount payable will be Rs.6,000/-. Therefore, total additional compensation payable will be Rs.42,720/-. It is contended by the counsel for the Insurance company that the appellant was travelling as a pillion rider. But no appeal has been filed by the Insurance company. We also note that the vehicle was covered by a comprehensive policy. The entire conditions of the policy were not produced by the Insurance company, only Schedule alone was produced. It is contended by the counsel for the claimant that the Insurance policy covers occupants of the vehicle also under Section 2 of the MACA.339/06 5 policy conditions. In any event, no contention was raised before the Tribunal that, as a pillion rider, Insurance company is excluded from the liability. If Insurance relies on limitation or exclusion of liability after admitting coverage, it is for the Insurance company to plead and prove the same (See New India Assurance Co. Ltd. v. Kiran Singh and others (2004 AIR SCW 4212)). No such defence was made before the Tribunal. We are only concerned with the quantum of compensation awarded by the Tribunal in this case. The additional amount of Rs.42,720/- should be deposited by the 2nd respondent Insurance company with 7.5% interest from the date of application till its deposit and on deposit of the same, appellant is entitled to withdraw the same. Appeal is accordingly partly allowed. J.B.KOSHY, JUDGE THOMAS P. JOSEPH, JUDGE prp J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 4th August, 2008