IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 15TH DECEMBER 2008 / 24TH AGRAHAYANA 1930 MACA.No. 574 of 2007() --------------------------------- OPMV.947/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT(S): PETITIONER ----------------------- ASHOK KUMAR, S/O.VELUSWAMY, PAYYARKODE HOUSE, MUDAPPALUR P.O., ALATHUR TALUK,PALAKKAD DISTRICT. BY ADV. SRI.MILLU DANDAPANI RESPONDENT(S): RESPONDENTS -------------------------- 1. N.S.SAJI,S/O.SUDHAKARAN, RESIDING AT KOORKKANCHERRY P.O.,THIRSSUR, (RC OWNER OF MINI LORRY NO.KL-7D 1363). 2. T.BALAKRISHNAN, S/O.THEYELAN, MAMPAD HOUSE, NAINAN VEEDU, KIZHAKKEMCHERY P.O.,ALATHUR TALUK, PALAKKAD DISTRICT. 3. NEW INDIA ASSURANCE CO. LTD, BRANCH OFFICE, IIND FLOOR, KOLLANUR, BUILDING PLACE ROAD, THRISSUR. ADV. SRI.P.JAYASANKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. ================================ M.A.C.A.No.574 of 2007 - G =============================== Dated this the 15th day of December, 2008. J U D G M E N T KOSHY, J. Appellant at the age of 32 sustained injuries in a motor accident on 12.5.1999. He claimed a compensation of Rs.8,00,000/-. Tribunal found that accident occurred due to the negligence of the driver of the vehicle insured by the 3rd respondent/insurance company and awarded an amount of Rs.1,57,360/- with interest out of which Rs.1,17,360/- was for reimbursement of actual medical expenses covered by bills (A13). Only dispute raised in this appeal is regarding the quantum of compensation. As far as the injuries are concerned, he sustained the following injuries: “1. (R) LOWER LIMB - Lower third right leg externally rotated. A lacerated wound of 6 X ½" seen on the anterol teral aspect of upper third right leg. Tenderness & crepitus present. 2. Right heel avulsed with the avulsion of heel continuing up to midfoot plantar. Plantar fascia & intrinsic muscles of (R) foot avulsed with a fragment of calcanium. (R) calcanium fully exposed with abrasions. M.A.C.A.No.574 of 2007 - G 2 3. A laceration of 2 X ½" seen over the anteromedial aspect of lower third right leg with muscles bulging out. 4. A lacerated wound of 6 X ½" seen on the dorsal aspect of right foot just anterior to ankle joint”. 2. Doctor certified 20% disability. PW2 Doctor examined and proved the same. The disability certificate reads as follows: “This is to certify that Mr.Ashok Kumar.V, 29 years male, S/o. Mr. Veluswamy, Payyarkode House, Mudappallur, Palakkad sustained a major injury to his right leg with multiple fractures and skin loss in the foot on 12.5.1999. I have examined him today and found that he has a flap cover in the heel and ankle and multiple skin grafted areas in the leg. He was pain while walking and runs a risk of repeated recurrence of ulceration in the foot in the weight bearing area. In my opinion, the disability that he has is permanent and partial to that limb and the percentage of disability is 20% (twenty)”. 3. Tribunal assessed 2% disability for whole body. It can be seen that there was avulsion injury, compound fracture of both bones and flap injury on the heel and avulsion injury was deep up to calcenium right. PW2 Doctor who issued the medical certificate was examined. His evidence shows that his disability is permanent. considering the evidence of PW2, we are of the opinion that Tribunal ought to have fixed whole body disability at 10%. According to the appellant his monthly income was M.A.C.A.No.574 of 2007 - G 3 Rs.5,000/- per month. But Tribunal has taken Rs.1,500/- as monthly income. He was aged 32 years and was maintaining a family. He was an income tax assessee. Accident occurred in the year 1999. Even though he produced income tax assessment papers to show his income from other sources, that income will not be affected by the accident. According to him, he was the manager of a bus service. Since the accident occurred in the year 1999 and he was maintaining a family from his professional income, we are of the view that Tribunal ought to have fixed Rs.2,500/- as monthly income. Tribunal fixed 18 as multiplier. As per his application, appellant was aged 32 years at the relevant time and only 17 could be taken as the multiplier as per the guidelines in the 2nd schedule. If that be so, for 10% disability compensation payable will be Rs.51,000/- (2500 X 12 X 17 X 10/100). From that, Rs.6,500/- granted by the Tribunal has to be deducted. Therefore, additional compensation payable for disability and loss of earning power will be Rs.44,500/-. In view of the injury, he may not have been able to work for at least four months. He was in the hospital for 19 days. Again he had to be M.A.C.A.No.574 of 2007 - G 4 admitted in the hospital. In the above circumstances, Rs.10,000/- should be granted for loss of actual earnings for the for the period of actual treatment. It is contended that he has to carry the disability till the end of his life, no amount was awarded for incidental expenses due to inpatient treatment and for future medical expenses and that inspite of avulsion injury, no amount was granted for disfigurement. But considering the total amount granted, we are not enhancing the compensation on any other heads. Therefore, additional compensation payable will be Rs.54,500/-. The above amount should be deposited by the 3rd respondent /insurance company 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 THOMAS P. JOSEPH, JUDGE bkn/-