IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 4TH AUGUST 2008 / 13TH SRAVANA 1930 MACA.No. 2386 of 2007 ----------------------- OPMV.617/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT ------------ SYED ABDUL RASHEED, S/O SYED MOIDHEEN, RESIDING AT ELLATHUPARAMBIL HOUSE, CHERANALLOR, KOCHI-34. BY ADV. SMT.ANEY PAUL SRI.PHILIP J.VETTICKATTU RESPONDENTS: ---------------- 1. SULAIMAN @ ABBAS, S/O ABOOBAKER, KAROTHUKUDY HOUSE, KANDANTHARA, VENGOLA KARA, PERUMBAVOOR VILLAGE. 2. ASHRAF, S/O KUNJU MUHAMMED, KOTTANGERIYIL HOUSE, VENNALA KARA, EDAPPALLY VILLAGE, ERNAKULAM DIST. 3. THE BRANCH MANAGER, THE UNITED INDIA INSURANCE CO. LTD., PRIVATE BUS STAND ROAD, PERUMBAVOOR. BY ADV. SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & K.P. BALACHANDRAN, JJ. ------------------------------------------------------------------------ M.A.C.A. No 2386 of 2007 ------------------------------------------------------------------------ Dated this the 4th August 2008 JUDGMENT Koshy,J. The appellant, an autorickshaw driver by profession, sustained serious injuries in an accident occurred on 01.12.2002. He claimed compensation of Rs 5 lakhs contending that the accident occurred due to the negligence of the driver of the vehicle insured with the third respondent Insurance Company. The Tribunal found that second respondent driver of the mini lorry was negligent and passed an award for Rs 2,88,900/- and directed the Insurance Company to deposit the amount with 7% interest from the date of application till deposit. 2. The only dispute is regarding the quantum of compensation awarded by the Tribunal. It was contended by the appellant that the amount awarded by the Tribunal is inadequate. The main dispute relates to the compensation awarded for permanent disability. Appellant was aged 42 years and was earning Rs 5,000/- per month. Following the guidelines in the MACA 2386/07 2 second schedule the Tribunal has taken 15 as the multiplier. We see no ground to enhance the same even though it is argued that in view of the increase in the life span of people a higher multiplier should be taken. Tribunal has taken Rs 2,500/- as the monthly income. According to the claimant, he was getting Rs 5,000/- per month. He was a professional autorickshaw driver aged 42 and maintaining a family. Accident occurred in 2002. Even if he was getting an amount of Rs 150/- per day, it was argued, that he will get more than Rs 4,500/- per month. Appellant is maintaining a family. We are of the opinion that at least Rs 3,000/- can be taken as the monthly income. With regard to the injuries the Tribunal considered the matter in detail and opined as follows: “Ext. A14 is the wound certificate issued by the Medical Trust Hospital, Ernakulam stating that the petitioner was admitted in the hospital on 1.12.2002 with the following injuries. 1. Lacerated wound on the left fronto parietal region. 2. Lacerated wound on the occipital region. 3. Lacerated wound over the nose. 4. Lacerated wound above the right eye brow. MACA 2386/07 3 5. Clinically compound fracture of right and left knee. C.T Scan of brain was normal. X-ray of left knee showed comminuted fracture of patella. He was discharged on 22.1.2003 in a satisfactory condition. Ext A15 is the discharge summary dated 13.3.2003. As per the discharge summary the petitioner had posterior dislocation of left hip with fracture acetabulam left with sciatic nerve palsy left and comminuted fractrure to left patella. He has got 5 x 3 lacerated wound over the medial aspect of left knee. Wound debridement, patellectomy left and CMR left hip, lower femoral skeletal traction application was done on 2.12.2002 under G.A. Ext A16 is the scan report of brain. Ext. A17 is the disability certificate dated 10.1.2004 wherein it was certified that the petitioner sustained posterior dislocation (L) hip with sciatic nerve palsy of (L) lower limb and thus he has got temporary total disability of left lower limb. He needs reassessment for permanent disability of left lower limb, at later date. Ext. A18 series are medical bills for a total sum of Rs 97,131.53. Ext A19 is attested copy of the driving licence. Ext A20 is the disability certificate issued by the Medical Board of General Hospital, Ernakulam. As per the disability certificate the petitioner has sustained posterior dislocation of left hip with fracture acetabulam and sciatic nerve palsy and fracture to left patella. He has complaint of left lower limb weakness, loss of sensation over left lower limb, loss of left patella and inability to extend left knee. He has got a 17 cms long scar postero lateral to left hip, 5 x 8 cms scar anterior to left knee. Left lower limb - MACA 2386/07 4 30o externally rotated. Left hip movements - from 180o - 70o flexion. Ir-10 ER - 20, no adduction, abduction - 39%. Left knee- from 160o to 70o flexion. Anterior drawer test positive and left knee is unstable. No active extension possible showing quadriceps weakness. Left ankle - foot drop present. No active movements. No sensation over posterior aspect of left thigh and over left leg and foot. Left sciatic nerve palsy shows only partial recovery. Based on the above clinical and radiological findings his total permanent physical disability was assessed to be 40% as per McBride's scale. The Orthopaedic Surgeon, who signed in the disability certificate was examined as PW2. According to PW2, it is very difficult to drive vehicles with his left foot as it was dropped. He cannot lift it and his patella was removed and his sciatic nerve was palsy. In cross-examination he has stated that the disability of lower limb amputation was 50% and according to him, he has issued the certificate with respect to disability of hip and removal of left patella. The disability is assessed to whole body.' But the Tribunal stating that he has got palsy to left lower limb and he has not stated that his left limb has become useless, reduced the percentage of disability from 40% to 30%. According to the claimant, because of the palsy to the left lower limb he is unable to use his left lower limb and because of that he was unable to drive autorickshaw and the compensation MACA 2386/07 5 should be granted for 100% loss of earning capacity and at the age of 45 he will not be able to get any other job. We are of the view that the Tribunal at least ought to have accepted the disability assessed by the Medical Board. Therefore compensation payable for permanent disability and loss of earning capacity is Rs 2,16,000/- (3000 x 12 x 40/100 x 15). Tribunal has awarded Rs 1,35,000/-. We award an additional amount of Rs 81,000/- under the above head. Compensation awarded under other heads is just and reasonable. The amount of Rs 81,000/- should be deposited by the third respondent Insurance Company over and above the amount decreed by the Tribunal with 7% interest from the date of application till date of deposit. On depositing the amount, appellant is allowed to withdraw the same. The appeal is partly allowed as above. Sd/- J.B.KOSHY Judge Sd/- K.P. BALACHANDRAN Judge 04/08/2008 en [true copy]