IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 MFA.No. 315 of 2003(B) ---------------------- OPMV.1164/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT: PETITIONER --------------------- VISWANATHAN, S/O.NARAYANAN, KIZHAKKEKARAYINMEL HOUSE, (THOPPIL), PALLIKKAL PANNIDI, P.O.NEDUMPARA, VIA-CHERUTHURUTHY, THRISSUR DT.679 531. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENTS: RESPONDENTS ------------------------ 1. M.N.ABOOBACKER, MAMBULLINNALIL HOUSE, THRITHALA. 2. BEERANKUTTY, S/O.MOHAMMED, MADAPPATTU PARAMBIL, THIRUMATTAKOTTUVILL., EZHUMAGAD. 3. THE ORIENTAL INSURANCE CO.LTD, BRANCH OFFICE, PRANAYAM BUILDGS, MELEPATTAMBI.PO,PATTAMBI (RESPONDENTS NOS. 1, 4 & 5 IN THE TRIBUNAL ARE NOT MADE PARTIES IN THIS APPEAL SINCE THEY ARE UNNECESSARY PARTIES FOR THIS APPEAL AND NO RELIEF IS SOUGHT AGAINST THEM). BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA,JJ. ----------------------------------------- M.F.A.No.315 of 2003 ----------------------------------------- Dated this the 4th day of April, 2008 JUDGMENT Koshy, J. Appellant-petitioner sustained injuries on 9.5.1998 in a motor accident. While he was travelling with goods in a lorry, another lorry hit the same. He claimed a compensation of Rs.4,44,000/- under various heads. The Tribunal found that the accident occurred due to the rash and negligent driving of the lorry by the second respondent. 6th respondent was the owner of the lorry and the lorry was covered by insurance policy issued by the third respondent. The Tribunal awarded only total compensation of Rs.1,80,300/-, out of which Rs.53,000/- was awarded for actual expenses for treatment etc. The question in this appeal is regarding the quantum of compensation. With regard to the injuries, the Tribunal considered the evidences as follows: “The petitioner was taken to the Westfort Hospital, Thrissur after the accident. Exhibit A2 is a copy of the wound certificate. Contusion on both the legs and on the right foot and lacerated wound, 4 x 1 x 1 cm, at the base of right big toe are noted in this document. Fracture of both the bones of right leg (fibula two places), fracture of left fibula and 2 fracture of 1st and 2nd metatarsals of right foot are noted as the result of investigation. He was discharged, at request, on 10.5.1998. He was admitted to Ganga Hospital, Coimbatore on 10.5.1998 itself. Exhibit A6 is the Discharge Summary. The following facts are noted as the findings on examination: Right leg was grossly swollen and tense. Blebs were seen over the leg. Tenderness and abnormal mobility over the right elg were present. Right foot was grossly swollen. There was a sutured wound over the base of great tow. Left leg was grossly swollen. There was an area of friction burn of 15 x 8 cm over the antero-medial aspect of middle 1/3 of the leg. Tenderness over the left medial malleolus was present. Fracture of the neck of left fibula, fracture of both the bones of right leg with fracture of lateral malleolus and deep abrasions over both the legs are noted as the diagnosis. Debridement of left leg and external fixation of right leg were done on 16.5.1998. Skin graft was done for the right and left legs on 21.5.1998. The fracture of right elg was manipulated and correction attempted. But, the medio lateral correction could not be achieved. He was discharged on 8.6.1998. He was again admitted to that hospital on 24.6.1998. He was again admitted to that hospital on 24.6.1998 for the follow up. Exhibit A6(a) is the follow up summary. External fixator was removed from the right leg and above knee POP cast was applied. He was discharged on 26.6.1998. His further follow up treatments on 4.8.1998, 2.9.1998, 19.11.1998 and 22.1.1999 are also evident from Exhibit A6 series. Exhibit A7 is an O.P ticket issued from the Medical College Hospital, Thrissur. Exhibit A8 is a letter dated 6.6.1998 issued from Hospital, Coimbatore referring the petitioner to Dr.K.C.Basu, Cheruthuruthy Hospital. From these facts, it is evident that the petitioner had sustained serious injuries in the accident for which he is entitled to compensation.” 3 2. With regard to the disability, the Tribunal considered the disability certificate and observed as follows: “The disabilities deposed by the petitioner are as follows: The strength of his legs often reduce while walking. The right leg has become shortened. The movements of the right ankle are restricted. The fracture of the right leg is not properly united. The movements of the right toes are restricted. There is disfigurement, due to the loss of flesh, at the posterior side below the left knee. Exhibit A9 is a certificate dated 19.2.2001 issued by Dr.J.R.Jagajeev., Lecturer in Orthopedics, Medical College, Thrissur. It is certified in this document that the petitioner has permanent disability of 16% as per Mc Bride Scale. The injuries sustained by the petitioner, the treatments given and the reasons for the disability have been stated in Exhibit A9. The disability certified in Exhibit A9 was not seriously disputed. The only suggestion made, during cross- examination was that the petitioner did not have that much disability as certified in Exhibit A9. It is the case of the petitioner that, due to financial difficulties after the accident, he could not continue the manufacturing of bricks and ow he is purchasing bricks from brick yards and supplying them to the customers. Considering the injuries, Exhibit A9 and the deposition of the petitioner, I am of the view that he would have sustained some permanent disability affecting his efficiency and earning power and also amenities of life. There is some disfigurement also.” 3. But the Tribunal did not grant any compensation on a multiplier method. But for permanent disability and disfigurement, the Tribunal awarded Rs.65,000/-. The disability certificate was not seriously disputed and the Tribunal himself found that there was 4 disfigurement and permanent disability and there was mal- union of fracture and shortening of the leg, the Tribunal should have awarded compensation on multiplier method on the basis of the disability certificate. The petitioner was 39 years old. 16 is the multiplier, taking second schedule as the guidelines. According to the petitioner, he was getting monthly income of Rs.5,000/-. He was doing the business of country bricks. The accident occurred while selling the same. He also produced various documents to prove that he has taken a housing loan and he was regularly paying the monthly instalments from the income earned by him. According to him, he was undergoing business of manufacturing bricks and for that purpose he has purchased properties. He deposed that due to the accident he had to stop his business of manufacturing bricks. The Tribunal fixed Rs.3,000/- as monthly income. We see no ground to change the monthly income fixed by the Tribunal. Therefore, compensation payable for disability and loss of earning power will be: 3000 x 12 x 16 x 16 100 = Rs.92,160 The compensation awarded by the Tribunal was Rs.65,000/-. Therefore, additional amount payable is Rs.27,160/-. It is submitted 5 that no amount was awarded for loss of amenities. But we see that the Tribunal has granted 9 months' earning for loss of actual earning during the period of treatment and also awarded Rs.30,000/- for pain and suffering and we are not changing the compensation awarded on other heads. The additional amount of Rs.27,160/- should be deposited by the third respondent Insurance Company with 7.5% interest from the date of application till the date of deposit. On deposit of the amount, the appellant is allowed to withdraw the same. The appeal is allowed, partly. J.B.KOSHY, JUDGE K.HEMA, JUDGE vgs. 6 J.B.KOSHY & K.HEMA, JJ. ------------------------------ M.F.A.No. 315 of 2003 ------------------------------ JUDGMENT 2.4.2008