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 6TH JULY 2009 / 15TH ASHADHA 1931 MACA.No. 1683 of 2005() ---------------------------------- (AGAINST THE AWARD DATED 15.3.2004 IN OPMV.884/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY ) .................... APPELLANT(S): PETITIONER: ----------------------------------------- JACOB BABY, AGED 48 YEARS, S/O.BABY, FAITHLY NIVAS, ETTUKUDUKKA, P.O.ETTUKUDUKKA. BY ADV. SRI.M.V.AMARESAN SRI.V.N.RAMESAN NAMBISAN RESPONDENT(S): RESPONDENT NO.3: ------------------------------------------------------- UNITED INDIA INSURANMCE CO LTD., KASARAGOD. R1 BY ADV. SRI.N.S.MOHAMMED USMAN. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ M.A.C.A.No.1683 of 2005-C ---------------------------------------------- Dated, this the 6th day of July, 2009 J U D G M E N T K.M.Joseph, J. Appellant is the claimant. The Tribunal has awarded a total sum of R.98,400/-. This appeal is directed against the quantum. 2. We heard the learned counsel for the appellant and learned counsel for the Insurance Company. 3. Learned counsel for the appellant would submit that the Tribunal has erred in fixing the disability at 13%. He points out that there is evidence in the form of X1 certificate to show that the Medical Board has certified 36% disability. In fact, he would submit that having regard to the vocation of the appellant, namely as a driver the appellant should have been awarded 100%. In this regard he referred the decision of this court in Jayaprasad v. Rejimon Philip (2007 (4) KLT 623). Further, the second contention of the learned counsel for the appellant is that more amount is warranted under loss of earning. The income taken at Rs.1,500/- is on the lower side, he contends. His contention is that the income taken should have been on the higher side and also MACA 1683/2005 -2- the loss of earning should have been for a longer period than six months which has been taken. The appellant has been granted Rs.9,000/- towards compensation for loss of income. He further submits that he had to incur further treatment. He also submits that he had to incur expenses for transport and just amount has not been granted in this regard. He further submits that the appellant should have been granted more amounts towards pain and suffering in view of the injury/treatment undergone. 4. Learned counsel for the Insurance Company supported the award. 5. The Ist question to be considered is the income to be fixed. The Tribunal has fixed the income as Rs.1,500/- per month. The accident took place on 1.2.1998. The appellant was a driver. The appellant has given evidence as PW1. Having regard to the date of the accident we feel that we can safely fix the income of the appellant at Rs.1,800/- per month. The next main ground of complaint the appellant persists before us is the calculation of the compensation towards disability. The appellant underwent MACA 1683/2005 -3- treatment about 88 days in hospitals in different spells. The nature of the injuries involved inter alia are fracture to humerus ® and femur ® and fracture to pelvis. He had to undergo operations. 6. Having regard to the nature of the vocation and having regard to the disability we feel that certainly the percentage of disability arrived at by the Tribunal is erroneous and is liable to be interfered with. The Medical Board has noted partial ankylosis of the right elbow with 160 degree to 90 degree flexion constituting 11% disability, one inch shortening of shaft of right humerus constituting 8% disability, 20 degree angulation torsion of the lower end of shaft of right fumerus constituting 10% disability, 15 degree internal rotation to 25 degree external rotation of the restriction of movements of the right hip constituting 3% disability and 1 inch shortening of the right femur segment constituting 4% disability. Thus, the Medical Board has arrived at 36% total disability. All that the Tribunal says is that the way of assessment is not fully acceptable and then proceeded to take the whole body disability for the purpose of MACA 1683/2005 -4- assessing compensation and thus 13% is taken as the whole body disability. The appellant was produced before us. The appellant was stated to be a driver. In the nature of injuries which are seen proved and having regard to the vocation, we would think that we would be justified in fixing 30% as the disability in the wake of the certification of the Medical Board as 36%. We have already enhanced the income as Rs.1,800/- On the said basis the appellant would be entitled to Rs.97,200/-. Deducting Rs.35,100/- already granted the appellant would be entitled to Rs.62,100/- more under the head compensation for disability. The appellant is also entitled to Rs.1,800/- more towards loss of earning at the rate of Rs.300/- for six months. The learned counsel for the appellant submits that the appellant has incurred nearly Rs.18,000/- towards future medical treatment. He further submits that documents are there. 7. We feel that instead of remitting the matter we can safely award Rs.15,000/- more towards future medical bills. We feel that having regard to the treatment undergone in different spells a sum of Rs.1,000/- can be MACA 1683/2005 -5- granted towards transport. Still further as against the sum of Rs.17,000/- towards pain and suffering, having regard to the injury/treatment we award Rs.8,000/- more. Thus, the appellant is entitled to Rs.87,900/- which is rounded of as Rs.88,000/- Accordingly, the appeal is allowed in part and the appellant is entitled to realise Rs.88,000/- more with 7.5 % interest from the date of the petition till the date of realisation from the respondent. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS