IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 MACA.No.1858 of 2005 (C) ------------------------------- OPMV.1423/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR .................... APPELLANT/PETITIONER ----------------------------- KOSHY ALIAS KUNJUMON, S/O.GEEVARGHESE KURIYAN, CHANDANAKAVIL VEEDU, EDAMULAKKAL.P.O, THOLLOORMURI, PATHANAPURAM TALUK. BY ADV. SRI.ANCHAL C.VIJAYAN SRI.S.ARUN SRI.V.GOPIKRISHNA RESPONDENTS/RESPONDENTS ------------------------------------ 1. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. 2. PEETHAMBHARAN, S/O.LEKSHMANAN, NIRMALAVILASOM, ADAYAM.P.O, PAZHAYAKUNNUMAL VILLAGE, CHIRAYINKEEZHU TALUK. ADV. SRI.S.SUDHEESHKAR FOR R2 SHRI.JOHNSON P.JOHN, SC, KSRTC FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. B. KOSHY & K. P. BALACHANDRAN, JJ. ------------------------------------------------ M. A. C. A. No.1858 of 2005 ------------------------------------------------ Dated this the 28th day of October, 2008 JUDGMENT Balachandran, J The appellant/claimant sustained injuries in a motor vehicle accident on 24/04/96 as the jeep driven by him bearing registration No.KLW/3128 collided with K.S.R.T.C bus bearing registration No.KLX 5967 driven by the second respondent. He claimed a total compensation of Rs.2 lakhs as against which the Tribunal awarded an amount of Rs.56,871/- with 6% interest and cost. What is claimed in the appeal filed by the claimant is only enhancement in compensation and hence, we are considering only that question in this appeal. 2. The appellant/petitioner claimed that he was driver earning a monthly income of Rs.3,500/-. The Tribunal has accepted his notional income as Rs.2,000/- only for the M. A. C. A. No.1858 of 2005 -2- purpose of assessing loss of income as well as for assessing disability and loss of earning power. The accident has taken place in 1996. Even for a non earning person, the notional income to be fixed as per second schedule to the M.V. Act is Rs.15,000/- per annum viz. Rs.1,250/- per month. In the instant case, the appellant admittedly is a driver and in 1996 the income of a driver can reasonably be estimated at the bare minimum of Rs.2,500/- and we fix his income accordingly. Ext.A5 disability certificate is certifying that the appellant has sustained permanent disability of 30%, but the Tribunal has accepted only 10% for the reason that the Doctor who issued the certificate is not examined. The details of treatment given to the appellant stated in Ext.A5 and extracted in the award by the Tribunal are as follows:- M. A. C. A. No.1858 of 2005 -3- “In Ext.A5 disability certificate, the permanent disability of the petitioner is noted as 30%. It is stated in Ext.A5 disability certificate that the petitioner sustained closed fracture of the neck of right humerus, type II compound fracture of the middle third of both bones right forearm, type III compound fracture of lower third of both bones of left forearm and laceration of right pinna. He was managed by primary wound, closed manipulative reduction and bilateral long arm slab. The laceration of the right pinna was managed by primary suturing. Later he underwent open reduction and internal fixation of right humerus by butress plating and both bone right forearm by intramedullary nailing. He was discharged on 05/06/96. On 19/06/96 patient was readmitted. He underwent open reduction and internal fixation for fracture both bones left forearm on 21/06/96. He was discharged on bilateral long arm cast on 30/06/96. Later he was followed up as outpatient. The plaster was removed on 17/08/96 and he was referred to Physical Medicine department for physiotherapy. Clinical and radiological examination of the patient revealed that, (i) The patient has packered and adherent surgical scar 30 cms long over left radius with multiple discharging sinuses. (ii) The left radius is irregularly thickened due to chronic osteomyelitis. (iii) He has puckered 10 cm long scar on left ulna. (iv) There is 10 degrees of fixed flexion deformity of left elbow. (v) Movements of left wrist is restricted with no dorsi - flexion 60 degrees of palmar flexion; 20 degrees of abduction and no adduction. (vi) Movements of left forearm is restricted to 30 degrees pronation from mid pronepsition and there is no supination. M. A. C. A. No.1858 of 2005 -4- (vii) Gross weakness in the grip strength of left hand. (viii) There is 30 degrees of fixed flexion deformity of right elbow with further flexion up to 150 degrees. (ix) Puckered scar 5 x 3 cms over the right radius. (x) Dorsiflexion of right wrist is limited to 30 degrees with weakness of grip strength of right hand. (xi) There is an ugly scar 30 cms long over the front of right arm with gross wasting of the right deltoid. (xii) 30 degrees fixed internal rotation deformity of right shoulder with total loss of external rotation. (xiii) Free abduction of right shoulder is limited to 40 degrees with an additional of 30 degrees of scapulothoracic movement. (iv) Shortening of right arm by one centimeter.” 3. The appellant was aged only 25 years at the time of the accident. The details of the injuries sustained along with the duration and nature of treatment suggests that the disability is certainly above 10% though however, it may not be proper to accept disability at 30% as certified in Ext.A5. 4. Considering the entire circumstances of the case, we are of the view that the disability which affects the income and loss M. A. C. A. No.1858 of 2005 -5- of earning capacity of the appellant can be fixed at 20%. Though the apt multiplier as per the Second Schedule to the M.V. Act for a person aged 25 years is 18, the Tribunal has adopted only 17 as the multiplier. We are of the view that the multiplier adopted by the Tribunal does not require to be altered as he has only just completed 25 years. Towards loss of income for one month the Tribunal has awarded an amount of Rs.2,000/-. Considering the injuries sustained to the appellant and the duration of the treatment undergone by him, we are of the view that the loss of earning at least for a period of six months has to be awarded to him. As we have raised the notional income to Rs.2,500/-, the additional amount due to the appellant towards loss of income will be Rs.13,000/- after deducting Rs.2,000/- awarded by the Tribunal. M. A. C. A. No.1858 of 2005 -6- Towards disability and loss of earning power, the Tribunal has awarded only an amount of Rs.40,800/-. As we have raised the notional income to Rs.2,500/- and the percentage of disability to 20% the compensation due on that count to the appellant will be Rs.1,02,000/- (Rs.2,500/- x 12 x 20/100 x 17). Deducting the amount already awarded under that head by the Tribunal, the balance amount due to the appellant will be Rs.61,200/-. The appellant was inpatient for a period of about two months in two spells viz. from 24/04/96 to 05/06/96 and from 19/06/96 to 30/06/96. Hence, towards expenses for bystander we award an additional amount of Rs.1,500/- over and above Rs.1,500/- awarded by the Tribunal. Considering the duration of treatment, nature of injury etc. we are of the view that towards pain and sufferings the amount of Rs.5,000/- awarded by M. A. C. A. No.1858 of 2005 -7- the Tribunal is very low. We award a further amount of Rs.10,000/- on that count. Thus, the appellant will be entitled to an additional compensation of Rs.85,700/- (61200 + 13000 + 1500 + 10000). The above amount with 7.5% from the date of application till the date of deposit shall be deposited by the first respondent/KSRTC within three months from today. On deposit, the appellant is allowed to withdraw the same. J. B. KOSHY JUDGE K.P.BALACHANDRAN, JUDGE kns/-