IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 MACA.No. 626 of 2003(B) ----------------------------------- O.P(MV).NO.560/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM. .................... APPELLANT/PETITIONER IN THE O.P(MV)NO.560/2002: ------------------------------------------------------------------------------ GEORGE, S/O. KURIAN, KAKKANAD HOUSE, SHORNUR, OTTAPALAAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.SANTHEEP ANKARATH. RESPONDENTS/ RESPONDENTS IN O.P.(MV)NO.560/2002: ---------------------------------------------------------------------------------- 1. RAJESH, S/O. RAMAKRISHNAN, KIZHAKKE PARAKKAL HOUSE, CHETTUPUZHA, THRISSUR. 2. T.UNNIKRISHNAN, S/O. KRISHNA VARIER, THRICHAKRAPURAM, VARIAM, PUTHENCHIRA NORTH, THRISSUR. 3. THE NEW INDIA ASSURANCE COMPANY LTD., IRINJALAKKUDA, THRISSUR DISTRICT. ADV. SRI.E.R.VENKATESWARAN FOR R3. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05/08/2008 , THE COURT ON THE SAME DAY THE FOLLOWING: prv. J.B. Koshy & K.P.Balachandran, JJ. -------------------------------------- M.A.C.A. No. 626 of 2003 --------------------------------------- Dated this the 5th day of August, 2008 Judgment Koshy,J. Appellant/Claimant sustained serious injuries in an accident that occurred on 22.12.2001 while he was travelling in a bus. The tribunal found that the accident occurred due to the negligence of the first respondent driver of the bus owned by the second respondent and insured by the third respondent insurance company, but, against a claim of Rs.1,90,000/-, the tribunal has awarded only a compensation of Rs.50,000/- inclusive of medical expenses incurred. Out of Rs.50,000/-, Rs.21,500/- was awarded considering the actual medical bills produced. The only dispute is regarding the quantum of compensation. As far as the injuries are concerned, the tribunal considered the matter at paragraph 6 as follows: "Ext.A6 is the copy of wound certificate issued from Valluvanad Hospital, Ottappalam. As per the said document, the injuries noted are complaint of pain Rt. forearm, lacerated injury 8 x 3 x 0.5 c.m. sized on Rt. side of forehead, lacerated injury 1 x 1 x 0.5 c.m. sized over doral aspect of Rt. forearm. In the investigation col. it M.A.C.A.No. 626/2003 2 is noted as x-ray Rt.forearm shows fracture radius and ulna (middle 3rd). The date of admission is 22.12.2001 and the date of discharge is 29.12.2001. Ext.A7 is the treatment certificate issued from the same hospital which shows that the date of admission is 22.12.2001 and the date of discharge is 29.12.2001. The age of the patient is 63 years. In the col. of diagnosis it is noted as lacerated wound over forehead, Type-I compound and comminuted fracture radius and ulna (R). In the col. of treatment it is noted as treated with wound debridement and suturing of forehead wound and ORIF with plate and screw for fracture both bones (R) forearm. Ext.A8 is the discharge card issued from the same hospital which shows that the date of admission is 22.12.2001 and the date of discharge is 29.12.2001. In the col. of final diagnosis it is noted as lacerated wound over forehead, type-I compound and comminuted fracture radius and ulna (R). In the treatment it is stated that wound debridement and suturing of forehead wound and ORIF with plate and screw for fracture BB (R) forearm. The case is seen reviewed on 2.1.2002 thereafter on 8.1.2002 again on 26.2.2002 and finally on 4.3.2002. Petitioner also produced prescriptions and also bills for Rs.21,447/-. Ext.A11 is a certificate issued from Valluvanad Hospital, ottapalam and issued by Dr.C.K. Chandrasekharan who is examined before the tribunal. He deposed that on examination he found that the petitioner is having terminal limitation of 10 degree extension of (R) elbow, 10th limitation of supination and pronation with mild weakness in grip strength and pinch strength and he assessed the disability as 9%." But, tribunal did not award compensation for loss of earning power. Only Rs.5,000/- was awarded for disability apart from Rs.2,500/- granted for loss of amenities, extra nourishment, damage to clothing etc. In effect, for permanent disability and for loss of M.A.C.A.No. 626/2003 3 earning power, total amount granted was only Rs.5,000/-. It is stated that the claimant was aged 63 at the time of accident. He was stated to be a Bee Keeper and was getting Rs.3,000/- per month. He was maintaining a family. Considering the fact that the accident occurred in 2001 and considering the circumstances, we are of the opinion that since the disability certificate was proved by examining the doctor, the tribunal should have accepted the assessment made by the doctor. His both bones of the leg were fractured. The accident occurred at the age of 63. It will be very difficult to continue his work as a bee keeper. According to him, his earning capacity was completely lost. Therefore, we are of opinion that at least 9% disability as certified by the doctor ought to have been accepted by the tribunal. The tribunal did not assess the income of the claimant. Since the accident occurred in 2001, as a bee keeper, he would have received at least Rs.100/- per day and he would have got at least 25 days' work in a month. He was the sole earning member of the family. In these circumstances, we fix Rs.2,500/- as the monthly income. If that be so, for 9% disability, M.A.C.A.No. 626/2003 4 compensation payable will be Rs.2500 x 12 x 5 x 9 = Rs.13,500/-. 100 The tribunal has awarded Rs.5,000/- only. That has to be deducted. So, balance payable will be Rs.8,500/-. The tribunal has awarded Rs.4,000/- towards actual loss of earnings. For the fracture of weight bearing bones, he will not be able to do any work at least for three months. If that be so, at the rate of Rs.2,500/- he will be entitled to Rs.7,500/- towards actual loss of earnings. So, he will be entitled to Rs.3,500/- more under that head. Therefore, the appellant is entitled to an additional amount of Rs.12,000/-. It is submitted that compensation granted for pain and suffering and under other heads were very low. Considering the total amount granted, we are not enhancing the amounts granted under other heads. The above additional amount of Rs.12,000/- should be deposited by the third respondent with 7.5% interest from the date of application till its deposit. On deposit of the amount, appellant is allowed to withdraw the same. J.B.Koshy Judge K.P.Balachandran Judge vaa M.A.C.A.No. 626/2003 5 J.B. KOSHY AND K.P.BALACHANDRAN,JJ. ------------------------------------- M.A.C.A. No. 626 of 2003 ------------------------------------- Judgment Dated:5th August, 2008