IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 MACA.No. 976 of 2007(B) ---------------------- OPMV.1021/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- BIJU, S/O PADAYATTIL KOCHOUSEPH, VADAKKUMKARA VELLANGALLORE DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.V.BABY SRI. A. N. SANTHOSH RESPONDENT(S): RESPONDENTS -------------------------- 1. C.M.JOY, CHERIYAKKARA HOUSE, NORTH CHALAKUDY P.O. 2. SHIBU, S/O VALAPPAN MATHUNNY, VIJAYARAGHAVAPURAM P.O. 3. MANAGER, ORIENTAL INSURANCE CO. LTD., CHALAKUDY. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/07/2009, THE COURT ON 20/07/2009 PASSED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. `````````````````````````````````````````````` M.A.C.A. NO: 976 OF 2007 ```````````````````````````````````````````````` Dated this the 20th Day of July, 2009. JUDGMENT K. M. Joseph J. The appellant is the claimant in a petition filed under Section 166 of the Motor Vehicles Act. The appellant stands awarded a sum of Rs. 76,847/- . The break up of the amount awarded is shown as below: 1. Cost of extra nourishment and wages to attendants : 1,000.00 2. Medical bills : 30,507.00 3. Transportation charges : 300.00 4. Loss of earnings : 4,500.00 5. Pain and sufferings : 10,000.00 6. Loss of amenities and happiness in life : 3,000.00 7. Permanent disability : 27,540.00 -------------------- TOTAL : Rs.76,847.00 = = = = = = = = Aggrieved by the quantum awarded, the appellant filed this appeal. 2. Heard the learned counsel for the appellant. Though served there is no appearance for the respondents. M.A.C.A . NO: 976 OF 2007 :2: 3. The accident took place on 6.5.2000. The appellant was a contractor. The evidence consists of PW1 and PW2 by way of oral evidence, PW1 is the appellant himself. Exts. A1 to Exts. 11 were marked, and Ext.B1 is the copy of Insurance Policy. 4. According to the learned counsel for the appellant, Ext.A11 disability certificate would show that the appellant has a permanent disability of 17%. The nature of injuries are fracture tibia right, fracture right clavicle, abrasion above zygomatic process on left side. The Tribunal has taken percentage of disability at 8 and awarded a sum of Rs.27,540/- towards disability. According to the learned counsel for the appellant the income taken is low. There is oral evidence by the appellant that he was earning higher income, it is contended. The appellant was 27 years of age. Learned counsel for the appellant further contended that the amount awarded towards loss of amenity is only Rs.3,000/-. He further contended that the interest awarded only at 6%. 5. The first question to be considered is, what is the income. The appellant was 27 years of age, and unmarried. There is evidence of the appellant himself, no doubt, as PW1. Having regard to the date M.A.C.A . NO: 976 OF 2007 :3: of accident and vocation chosen by the appellant, we can fix the income of the appellant at Rs.1,800/- per month. 6. The next question to be considered is percentage of disability. In this case, the Doctor is examined. In the certificate it is inter alia, stated as follows: He sustained the following injuries: “1.Fracture middle 3rd of (Rt.) clavicle 2.Communiated fracture middle 3rd of (Rt.) Tibia 3.Multiple aberations He is orthopaedically disabled person. His disabilities are due to: 1.Clinically 1. Waisting of (Rt) Quadriceps's muscle 2. Bony swelling on a) middle of (Rt) clavicle b) middle of (Rt) leg 3. Partial an Kylosis of (a) (Rt.) shoulder (b) knee motion limited to an arc from 1800 to 1100 flexion (c) (Rt) ankle flexion and extension motion limited to an arc from 900 to 1240 flexion. Radiologically I. (Rt) clavicle : a . Fracture limited. b.. Excess callus formation at the site of fracture. 2. (Rt.) leg :a. Fracture of (Rt) Tibia limited . b. Excess callus formation at the side of fracture of (Rt) Tibia. M.A.C.A . NO: 976 OF 2007 :4: Functionally he is having difficulty: (a) to squat properly (b) to climb up and getting down steps (c) for brisk walking and to take quick steps (d) for prolonged standing and liability (e) to carry objects with (Rt) upper limb (f) to raise objects above the head with his (Rt) upper limb (g) to do usual labour (h) to drive any sort of vehicles. All these above findings contribute to a permanent disability and he is assessed to have a permanent disability of 17% and a whole body ratio of 14.92% as per MC - Brides scale, the split which is noted below: Split of Disability Whole body Ratio 1.(Rt) shoulder due to fracture (Rt) clavicle 8% 8% 2. (Rt) knee due to fracture(Rt) tibia 4% 2.27% 3. (Rt) ankle due to fracture Rt) tibia 5% 4.65% -------------------------------------------------- TOTAL 17% 14.92%” ============================ 7. In view of the facts, we can safely fix the percentage at 10%. In such circumstances, the appellant would be entitled to Rs.38,880/- towards disability, after deducting the amount already awarded, the appellant is entitled to Rs.11,340/- more, under the head compensation towards disability. M.A.C.A . NO: 976 OF 2007 :5: 8. We feel that the appellant should be awarded Rs.5,000/- more towards loss of amenities, having regard to the nature of injuries and the after effects of the accident. The appellant is entitled to a further sum of Rs.16,340/- (rounded of to Rs.16,500/-). The appellant is justified in demanding interest at 7.5%, on the amount awarded. Accordingly, this appeal is allowed in part and the appellant is allowed to realise an amount of Rs.16,500/- from the date of petition till the date of realisation along with interest at 7.5% from the respondents. The amount already awarded by the Tribunal will also bear the interest at the rate of 7.5% instead of 6%. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/