IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 MACA.No. 2788 of 2008() ----------------------- OPMV.468/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT(S): -------------- SUKUMARAN, AGED 52 YEARS, S/O. KESAVAN NAIR, CHERANGOPADATHU VEETIL HOUSE, P.O. MULANJAR, OTTAPPALAM. BY ADV. SRI.C.CHANDRASEKHARAN RESPONDENT(S): --------------- 1. ROSY CHAKKORU CHALAKKAL HOUSE, P.O. PURANTTUKARA, THRISSUR DISTRICT, (RC OWNER OF KL - 8F 5666 BUS). 2. SATHYAN, S/O. KUTTAN, CHONKULANGARA HOUSE, KOZHUKULLY P.O., THRISSUR DISTRICT. 3. THE ORIENTAL INSURANCE CO. LTD. DIVISIONAL OFICER, 3RD FLOOR, MAHESWARI BUILDING, M.G. ROAD, THRISSUR. ADV. SRI.TITUS MANI FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. ```````````````````````````````````````````````````` M.A.C.A. No. 2788 OF 2008 G ```````````````````````````````````````````````````` Dated this the 15th day of June, 2009 J U D G M E N T Joseph, J. Appellant is the claimant. He has filed the appeal feeling aggrieved by the quantum of compensation awarded. 2. We heard learned counsel for the appellant and learned counsel for the Insurance company. Learned counsel for the appellant would point out the following points. The date of accident is 30.3.2005. The appellant was a cook. His income is taken as Rs.2,000/-. It should have been Rs.4,000/-, he complains. Secondly, he contends that the doctor has certified the disability at 17% and only 7% was taken. It is pointed out that the doctor was examined though the appellant was not examined. Thirdly, he would contend that the appellant was in hospital for 25 days but only Rs.15,000/- is granted towards pain and suffering. Lastly, he would contend that loss of earning granted is for 4 months while he had loss of earning for 6 months. Learned counsel for the appellant relies on the apex court decision in New MACA.2788/08 : 2 : India Assurance Co. Ltd. Vs. Kalpana and others [2007 (3) SCC 538]. Learned counsel for the respondent would submit that the decision of the apex court relied on by the appellant may not apply in this case. There is absolutely no evidence to warrant any increase in income. 3. After having considered the facts of the case, we feel that the appellant is entitled to enhanced compensation. Going by the certificate, we notice that there is non-union of ulna and stiffness of joints. It is accordingly the Tribunal has arrived at the disability at 7%. No doubt, the appellant was not examined. But this is a case where the doctor himself was examined. Accordingly, we feel that we can safely take the percentage of disability as 9%. If that be so, the appellant would be entitled to enhanced compensation of Rs.6,240/-. We feel that the appellant can be awarded a sum of Rs.5,000/- more towards pain and suffering. It is to be noted that the appellant was in hospital for 25 days on account of the fracture. The claim of the appellant regarding loss of earning is rejected because there is no evidence in support of the claim. Accordingly, the appellant is entitled to MACA.2788/08 : 3 : enhanced compensation in a sum of Rs.11,500/- (Rs.11,240/- rounded to Rs.11,500/-). The appeal is allowed in part and the appellant is allowed to realise a sum of Rs.11,500/- with 7.5% interest from the date of the petition till the date of realisation. (K.M.JOSEPH, JUDGE) (M.L. JOSEPH FRANCIS, JUDGE) aks