IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 3RD JUNE 2008 / 13TH JYAISHTA 1930 MFA.No. 996 of 2000() ------------------------------- OPMV.1486/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT: PETITIONER ------------------ P.K.AJAYAN, S/O. KARAPPAN, PAINOOR HOUSE, PADIYAM VILLAGE, KANDASSANKADAVU P.O. BY ADV. SRI.T.A.RAJAGOPALAN RESPONDENTS: RESPONDENTS ----------------------- 1. A.GOPINATHAN, ARACKAL HOUSE, VELUTHUR P.O., THRISSUR 2. FENNY R.CHUNGATH S/O. REPHY, CHUNGATH, VADAKKUMMURI. 3. UNITED INDIA INSURANCE CO. LTD., KUNNAMKULAM. BY ADV. SRI.K.PADMANABHAN - R1 SRI.N.S.MOHAMMED USMAN - R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & P.N. RAVINDRAN, JJ. ---------------------------------------------------- M.F.A.NO.996 OF 2000-D ---------------------------------------------------- Dated this the 3rd day of June, 2008. JUDGMENT Koshy, J: The appellant sustained injuries in an accident on 14.4.1994. The Tribunal found that the accident occurred due to the negligence of the driver of the autorickshaw which was duly insured by the 3rd respondent insurance company. Against a compensation claim of Rs.Four lakhs, the compensation awarded was only Rs.1,24,000/=. The dispute is only regarding the quantum of compensation. Ext.A3 is the wound certificate. Following are the injuries sustained by the appellant: “Closed fracture shrat femur ® lower 3rd. Abrasion anterior aspect ® knee Closed fracture ® tibia lower end. Heel flap avulsion ® with distally based flap. Lacerated would of 3x2x2cms plantar aspect on 1st MT.LW of 2x2cms base of Nail Bigtoe Incised wound 2x1x1cm anterior aspect ® Leg Middle 3rd. Contused abrasion chest (front)”. He was treated for 109 days in a hospital. The Tribunal considered the certificates and found as follows: MFA.NO.996/2000 . 2 “The petitioner, who was thrown down sustained injuries and he was taken to Medical College Hospital, Thrissur for treatment. Ext.A3 is the copy of the wound certificate which would reveal that he had sustained a closed fracture to the shaft of right femure, closed fracture to right tibia at lower end with flap avulsion of the right heel. He had other lacerated wounds also. Ext.A6 is the copy of the reference card issued by the Medical College Hospital, Thrissur which would reveal that he was treated as in-patient till 26..7.1994. The degloving injury was treated with repeated skin grafting over the sole. The displaced malleolus fracture at the ankle region could not be fixed with implants because of the poor skin condition and adjacent inflection on the site. Femur fracture was initially treated by plating and bone grafting. He was also in traction for a considerable period. I had occasion to see the petitioner while he gave evidence before me and the degloving injury at the heel is not yet healed in spite of repeated skin grafting. The graft for the raw area of right foot was taken from both thighs and the wound at the thigh is not yet healed which shows that he has chronic infection of the right femur with discharging femur formation over the right thigh.” The Tribunal awarded Rs.20,000/= for pain and sufferings and Rs.20,000/= for loss of amenities. The Tribunal found that for the long period of treatment for 105 days in the hospital, the appellant might have been forced to take rest for six months' period. The Tribunal has awarded Rs.9,000/= taking Rs.1,500/= per month on MFA.NO.996/2000 . 3 that count. Medical expenses incurred for the bill showing Rs.45,861/=, the Tribunal has awarded Rs.40,000/= disbelieving certain taxi bills. Even though the appellant produced disability certificate assessing 50% disability, the Tribunal did not calculate the compensation for permanent disability in a scientific way and only Rs.30,000/= was awarded. We are of the opinion that the Tribunal ought to have calculated the compensation in a scientific way. 2. The first question is what is the income of the appellant. According to the claimant, he was earning Rs.4,000/= per month and he was a business executive. The Tribunal noticed in F.I. Statement that he was a merchant by profession but there is no convincing evidence regarding the nature of business he was doing. He was aged 42 years. He was maintaining a family. The incident occurred in 1994. It is true that the oral evidence was adduced to show that he was getting Rs.4,000/= per month. In the absence of clear evidence, the Tribunal ought to have fixed at least Rs.2,500/= as his monthly income. The Tribunal noticed that his wounds were not healed. The injury was only to the right leg. In the medical certificate, there is 50% disability. We assume that the above MFA.NO.996/2000 . 4 disability is to the limb i.e., to the right leg. If that be so, whole body disability can be fixed as 20%. Since he was 42 years of age and the multiplier taking 2nd schedule for guidance 15, the compensation payable for permanent disability and loss of earning capacity will be (2500x12x20/100x15) Rs.90,000/=instead of Rs.30,000/= awarded by the Tribunal. Therefore, the appellant will be entitled to Rs.60,000/= more on that count. The Tribunal has granted for loss of earnings Rs.9000/= taking note of the fact that he was six months under bed rest. Since we have increased monthly income, he will be entitled to Rs.6,000/= more on that count. For future medical expenses only Rs.5,000/= was granted. Further we know that he has produced medical and taxi bills for Rs.45,861/=.The Tribunal awarded Rs.40,000/=. He was in continuous treatment. Many of the expenses incurred are not reflected in the bills. We award Rs.4,000/= more for medical and incidental expenses. The additional compensation to be paid to the appellant was Rs.70,000/=. The above mentioned Rs.70,000/= should be deposited by the insurance company with 7.5% interest from the date of application till the deposit over and above the decreed amount by the Tribunal. Since the accident occurred a decade ago, on depositing the amount, the appellant is allowed to MFA.NO.996/2000 . 5 withdraw the same. The appeal is partly allowed. J.B. KOSHY, JUDGE P.N. RAVINDRAN, JUDGE. cl