IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 MACA.No. 416 of 2003() --------------------------------- OPMV.1989/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT / PETITIONER: -------------------------------------- SUGUNAN PUTHANPURAYIL, S/O. KELU, KANHIRODE AMSOM DESOM, P.O. KOODALI, KANNUR DISTRICT. BY ADV. SRI.M.V.AMARESAN SRI.V.N.RAMESAN NAMBISAN RESPONDENTS/ RESPONDENTS: ----------------------------------------------- 1. K. RAJAN, KOROTH HOUSE, ATTADAPPA, KANNUR DISTRICT. 2. THOTTATHIL PUTHIYAPURAYIL GIREESHAN, S/O. KANNAN, VALIYANNUR AMSOM DESOM, KANNUR DISTRICT. 3. THE NEW INDIA ASSURANCE CO.LTD., NEAR MUNICIPAL BUS STAND, KANNUR-1. BY ADV. SRI.A.C.DEVY - R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & P.N. RAVINDRAN, JJ. ---------------------------------------------------- M.A.C.A.NO.416 OF 2003-D ---------------------------------------------------- Dated this the 12th day of June, 2008. JUDGMENT Koshy, J: The appellant/claimant at the age of 28, sustained serious injuries in a motor accident on 1.7.1996. He claimed a compensation of Rs.10 lakhs. Only Rs.1,79,600/= with interest including reimbursement of medical expenses awarded by the Tribunal. The quantum of compensation alone is disputed in this appeal. The Tribunal has considered the medical certificate and found that the appellant was having multiple soft tissue injuries of the right upper limb, open fracture of mid-third of the right humerus, fracture of right radius and ulna and radial nerve paralysis right. It is seen that he underwent inpatient treatment for 140 days in 11 spells. Ext.A2 is the wound certificate, which shows the following injuries: “Conscious, well oriented Deformity (Rt) arm. Lacerated wound 4 x 2 cm over the ® arm Lw 8 x 3 cm over the upper ® forearm Lw 6 x 2 cm over the lower ® forearm” MACA.NO.416/2003 . 2 He was taken to Kasthurba Hospital, Manipal. The treatments undergone were summarised in Ext.A8 treatment certificate issued by the same hospital which reads as follows: “1. Admission on 1.7.1996, appropriate medication started. -On 6.71996 under anesthesia open reduction, internal fixation of ® humerus done. -On 16.7.1996 above elbow cast application was done. -Discharged on 17.7.1996. 2. Readmitted on 13.9.1996. -Underwent intramedullary nailing of fractures of both bones forearm ® under anesthesia. discharged on 29.9.1996. 3. Readmitted on 13..1.1997. Discharged on 23..1.1997. 4. Readmitted on 21.3.1997. Underwent implant removal and external fixator application of ® humerus under anesthesia. -discharged on 14.4.1997. 5. Readmitted on 25.8.1997. Under anesthesia bone marrow injection was done for fracture humerus discharged on 29.8.1997. 6. Readmitted on 26.5.1997. Under anesthesia readjustment of external fixator was done. -Discharged on 2.6.1997. 7. Readmitted on 6.10.1997. under anesthesia external fixator and square nails were removed from ® upper limb. MACA.NO.416/2003 . 3 Cast application was done. -Discharged on 13.10.1997. 8. Readmitted on 5.12.1997. Brace fitting for ® upper limb was done. Discharged on 20.12.1997. 9. Readmitted on 29..5.1998. Under anesthesia open reduction and internal fixation, bone grafting of non union fracture ® humerus was done. Discharged on 19.6.1998. 10. He w as reviewed in the OPD on following days: 16.8.1996,13.9.1996,7.10.1996, 29.11.1996,3..1.1997,21.3.1997,26.5.1997,18.7. 1997,25.8.1997,6.10.1997,17.11.1997,4.5.1998, 18.5.1998,29.5.1998,6.7.1998,21.8.1998,21.9.1 998,23.11.1998,4.1.1999,18.3.1999,7.6.1999, 26.7.1999,8.11.1999 and 24.4.2000. 11. Readmitted on 5.7.2000. On 8.7.2000 under anesthesia, implant removal, seaquestrectomy and saucerization of ® humerus, tendon transfer for right thumb were done. He was discharged on 21.7.2000. 12. Readmitted on 7.8.2000 for mobilisation of right upper limb. Discharged on 11.8.2000 with advise to continue mobilisation exercises.” When the doctor was examined, he assessed the whole body disability at 25%. But, we notice that even though he had undergone a long treatment, there were fractures. The Tribunal fixed disability at 20%. Considering the nature of injuries and MACA.NO.416/2003 . 4 nature of fracture of tibia etc., tribunal ought to have accepted the certificate of disability. The appellant was 28 years at the time of the accident. He was earning Rs.2,000/= per month. He was also a Theyyam artist. Because of the disability, he cannot continuously do any work. PW2, his employer, was also examined to prove Ext.A6 certificate to show that he had given Rs.2,000/= as salary to the claimant. The Tribunal did not accept this and only fixed the notional income of a non-earning person as per the 2nd schedule, which was fixed in 1994. Considering the fact that he was 28 years old and was employed, we are of the view that the Tribunal ought to have fixed at least Rs.1,500/= as the monthly income. Taking the 2nd schedule for guidance, 18 is the apt multiplier {See APSRTC v. M. Pentaiah Chary (AIR 2007 SCW 5689)}. Tribunal has taken 18 as the apt multiplier. It needs no interference. Therefore compensation payable for disability and loss of earning capacity will be Rs.81,000/=. The Tribunal has granted only Rs.54,000/=. Therefore, he will be entitled an additional amount of Rs.27,000/= on this count. For loss of actual earnings for two years, the Tribunal granted Rs.30,000/= taking his yearly income as Rs.15,000/= (monthly income is Rs.1,250/=). Considering the MACA.NO.416/2003 . 5 medical records, the tribunal found that the appellant was under treatment for two years because of mal union of bones and infection and thereafter undergone a surgery. He was unable to get any employment for two years. Since we have fixed Rs.1,500/= as the monthly income, he will be entitled to get an additional amount of Rs.6,000/= under this head. It is stated that even after the inpatient treatment of 140 days he had to go to Manipal for check up and after two years also, he had undergone inpatient treatment. There will be many expenses which are not supported by bills when a patient is treated for 107 days as inpatient. The appellant had undergone 7 surgeries. Considering all these aspects, the Tribunal ought to have awarded Rs.45,000/= for medical and incidental expenses instead of Rs.31,100/= on the basis of medical bills produced. Hence, he is entitled to an amount of Rs.13,900/= under that head. He had claimed Rs.34,000/= for taxi bills and transportation expenses. He produced Ext.A13 series of taxi bills. He was a resident of Kannur district. The medical certificates produced would show that for expert inpatient treatment, he had to go to Manipal about 25 times. In the initial days, he cannot go by ordinary transport. There is no train facility to Manipal and only Rs.2,500 was granted under that head. MACA.NO.416/2003 . 6 We are of the view that at least Rs.10,000/= ought to have been granted for transportation expenses. The Tribunal granted only Rs.2,500/=. He had to go to Manipal 25 times for subsequent check up apart from the surgery undergone on 11 occasions. We are of the opinion that additional amount of Rs.7,500/= ought to have been granted under this head. The additional amount of Rs.54,400/= should be deposited by the 3rd respondent insurance company with 7.5% interest from the date of application till the deposit over and above the decreed amount. On deposit of the amount, the appellant is entitled to withdraw the amount. J.B. KOSHY, JUDGE. P.N. RAVINDRAN, JUDGE. cl MACA.NO.416/2003 . 7 J.B. KOSHY & P.N. RAVINDRAN, JJ. M.A.C.A.NO.416 OF 2003-D JUDGMENT 12th day of June, 2008.