IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 MFA.No. 1197 of 2002(D) ----------------------- OPMV.1603/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/PETITIONER: ------------------------------ A.B.JALEEL, S/O. LATE A.M.BEERANKUTTY, `SHEEBA' MAHAL, PULIMUGAL ROAD, CHANGAMPUZHA NAGAR P.O., COCHIN-33. BY ADV. SRI.M.M.SAIDU MUHAMMED SRI.P.A.SHAJI SAMAD SRI.ALI. T.A. RESPONDENTS/RESPONDENTS: ------------------------------------ 1. MARY SEBASTIAN, SRAMBIKKAL HOUSE, CHANGAMPUZHA NAGAR, CHANGAMPUZHA NAGAR P.O., COCHIN-33. 2. KUNJUKUNJU, S/O. ANTONY, SRAMBIKKAL HOUSE, UNIT ROAD, NEAR PATHADIPALAM, EDAPPALLY, CHANGAMPUZHA NAGAR P.O., COCHIN-33. (REMOVED FROM PARTY ARRAY IN THE TRIBUNAL). 3. M/S. UNITED INDIA INSURANCE CO.LIMITED, BRANCH OFFICE, HOSPITAL ROAD, ERNAKULAM. R1 BY ADV. SRI.T.I.DANIEL R3 BY ADV. SRI.MATHEWS JACOB THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.F.A.NO.1197 OF 2002 () ----------------------------------- Dated this the 17th day of January, 2008 J U D G M E N T KOSHY,J. A 47 year old Advocate suffered serious injuries in a motor accident. Against a claim for compensation of Rs.10 lakhs, tribunal has awarded only Rs.3,52,250/- after holding that driver of the vehicle insured by the 3rd respondent Insurance company was responsible for the accident. Only quantum of compensation is disputed in this appeal. 2. The disability certificate shows that there is 45% disability. Ext.A3 discharge certificate shows the following injuries: “Incomplete avulsion of dorsum of left foot with loss of 2, 3, 4 and 5th toe avulsed not viable. Fracture of 2nd, 3rd, 4th and 5th metatarsals left foot.” MFA.1197/2002 2 Ext.A6 is the discharge summary issued by the Specialists Hospital which shows that SSG donor site was repaired by layers one absent and small transfer of left wound was done. He was asked to take nine months rest in the house. Ext.A6 shows the treatment records in the Specialists hospital. Ext.A7 discharge certificate reads as follows: “Skin and soft tissue 19 x 20 cms. Bare 4th and 5th Metatarsal stumps. Distal 1/4th of 2,3,4,5 Metatarsal absent. D.P.A. & V.C. Exposed as recepient vessels. Lt. L.D Muscle harvested. Flap inset. Anastomosis: 1 artery, 1 vein – End to end. All anastomosis were done under Microscope 10/0 Ethilon Immediate pink up. Muscle flap was covered with SSG. Donor site was repaired in layers. Post operative period was unevenful. Advice: Keep the foot elevated. Tab. Disprin ½ daily after food. Coconut oil application over the grafted and MFA.1197/2002 3 donor site after bath. Attended OP till 06.11.1997. Now Severe Limitation of motion with pain (L) foot. Now the total loss of earning capacity is found as 45% (Forty five percentage only) 45% (Forty five percentage total loss of earning capacity). The tribunal did not accept 45% disability because the doctor of the Specialist hospital who issued the certificate was a casualty doctor who has only MBBS Degree. But we note that considering the injuries, under the Schedule of the Workmen's Compensation Act, loss of earning capacity can be fixed as 20%. Here the 2nd, 3rd, 4th and 5th metatarsals left foot were amputated, and there was crush injury and 5th metatarsal was also affected though not amputated. Even though 45% disability cannot be accepted, 20% disability ought have been granted by the tribunal. Tribunal has fixed Rs.8,000/- as the monthly income and calculated 10% disability. Since we have assessed 20% disability, he is entitled to Rs.1,24,800/- more. MFA.1197/2002 4 Even though it was argued that compensation for loss of earning power and other grounds are very low, considering the total amount granted, we are of the view that compensation granted under other heads are just and reasonable. The above amount of Rs.1,24,800/- should be deposited by the 3rd respondent Insurance company with 7.5% interest from the date of application till the date of deposit over and above the decreed amount by the tribunal. On deposit of the above, he is entitled to withdraw the same. With the above observations this appeal is partly allowed. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NO.1197 OF 2002 (D) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 17th January, 2008