IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 MFA.No. 1364 of 2001 D ------------------------------------------- OPMV.1527/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT(S): PETITIONERS: ------------------------------------------- P. LATHEEF, S/O. KOYAKUTTY, AGED 23 YEARS, PANHATTU HOUSE, EKAROOL PO, UNNIKULAM VIA., UNNIKULAM AMSOM DESOM, KOZHIKODE DIST. BY ADV. SRI.JACOB ABRAHAM SMT. KOCHUMOL KODUVATH. RESPONDENT(S): RESPONDENTS: ------------------------------------------------- 1. ISMAIL, S/O. MOIDHI, KOZHIMADATHIL HOUSE, KARUMALA PO, BALUSSERY (VIA), KOZHIKODE DISTRICT. 2. BASHEER, S/O. AMMODKOYA, AGED 21 YEARS, KOLLARUKANDY HOUSE, VALLIYETH, UNNIKULAM PO, KOZHIKODE DIST. 3. M/S. UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, KALLINGAL BUILDING, IIND FLOOR, MAIN ROAD, BADAGARA. 4. C.V. KUNHAMMED, S/O. C.V. KUNHALI HAJI, NERAVATH HOUSE, KUNNAMANGALAM PO, KOZHIKODE DISTRICT. 5. V. HUSSAIN, S/O. ABDURAHIMAN, AGED 33 YEARS, NHELIKUNNUMMAL HOUSE, KOORACHUNDU P.O., ATHOLI AMSOM DESOM, KOZHIKODE DIST. M.F.A. NO.1364 OF 2001 D 6. THE NEW INDIA ASSURANCE COMPANY LTD., BRANCH OFFICE, CHEROTTY ROAD, CALICUT. ADV. SRI.M.RAJAGOPALAN FOR R6 SRI.RAJIT FOR R6 SRI.SIBY MATHEW FOR R3 SRI.PHILIP J.VETTICKATTU FOR R3 SRI.P.K.BEHANAN FOR R4 SRI.BIJOY.K.ALIAS FOR R4 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- M.F.A. NO. 1364 OF 2001 D --------------------------------------------------- Dated this the 3rd July, 2009 JUDGMENT K.M. Joseph, J. Appellant is the claimant in a petition filed under Section 166 of the Motor Vehicles Act. Appellant claimed a total compensation of Rs.3 Lakhs. This Appeal is directed against the quantum of compensation. 2. We heard the learned counsel for the appellant, learned counsel for the third respondent as also the learned counsel appearing on behalf of the sixth respondent. Respondents 3 and 6 are the Insurance Companies, both of which are found liable in equal measure. Though notice was not served on respondents 2 and 5, they may not be necessary, as the insurance is admitted and the learned counsel appearing on behalf of the Insurance Companies also submit that the Insurance Companies are liable. 3. The tribunal has awarded a total compensation of MFA. NO.1364/01 D 2 Rs.43,300/=, the break of which is extracted hereunder: “1. Loss of earning Rs. 1,000/= 2. Transport to hospital Rs. 3,000/= 3. Extra nourishment Rs. 3,000/= 4. Damage to clothing and articles Rs. 300/= 5. Compensation for expenses incurred for treatment and purchase of medicine Rs. 5,000/= 6. Compensation for future treatment and medicines Rs. 6,000/= 7. Compensation for loss of inconvenience and enjoy- ment of life Rs. 10,000/= 8. Compensation for expenses to a bystander Rs. 1,000/= 9. Compensation for pain and sufferings. Rs. 12,000/= 10. Compensation for permanent disability Rs. 1,000/= 11. Compensation for loss of Earning power. Rs. 1,000/= ---------------------- Total: Rs. 43,300/=” ============= MFA. NO.1364/01 D 3 4. Learned counsel for the appellant would submit that here is a case where the tribunal has assigned no reasons whatsoever for awarding the amounts and what is more, the amounts awarded are meagre. We notice that the tribunal has referred to the facts and thereafter amounts were awarded as aforesaid. The injuries suffered by the appellant would appear to be as follows: “Compound fracture lower 1/3 of right femur with extansive commuration and loss of fragment, fracture right pattella, fracture base of 1st metatarsal right and base of 3rd metatarsal right with tarsus metatarsal dislocation of big toe right, lacerated injury 6 x 4 x 4 cms. over the right femur and other injuries all over the body.” The appellant underwent an operation on 20.4.1993 for old segmental fracture. The right lower limb is shortened. There is a wound over medial aspect right thigh and anterior aspect right 1/3rd thigh with with unhealthy granulation. Wasting of quadriceps muscles present. Mild tenderness over function of MFA. NO.1364/01 D 4 M/3rd and L./3rd with abnormal mobility. Swelling over the knee joint present. 5. Learned counsel for the appellant would submit that in fact the tribunal has not even fixed the annual income, not applied the multiplier and has awarded a meagre sum towards compensation for permanent disability. She would further submit that the amount awarded towards loss of earning is meagre. She would submit that the loss of earning should have been awarded for seven months. But, only Rs.1,000/= was granted. She would also contend that there was evidence before the tribunal warranting awarding of compensation under the head “expenses for treatment and purchase of medicines” for a sum of Rs.18,000/=, but only Rs.5,000/= was awarded. She also would contend that the amount awarded towards expenses to bystander and for pain and suffering are meagre. Learned counsel for the Insurance Companies supported the award. 6. We find some merit in the contentions of the appellant. Even though arriving at the compensation may involve some MFA. NO.1364/01 D 5 guess work, but it does not mean that in places where reasons are necessary, reasons need not be given. For instance, we notice that the appellant had a case that there is permanent disability. The appellant produced Exts.A6, A7 and X3. Ext.X3 was a Certificate of physically handicapped, issued from the Medical College Hospital. The appellant was aged 23 years at the time of the accident. He was, going by the evidence tendered in the case by himself, a driver by profession. He has tendered evidence that he was earning Rs.1,500/= per month. In such circumstances, we would think that it was necessary for the tribunal to first consider the question as to what is the income which has been derived by the appellant and thereafter the appropriate multiplier should have been applied to arrive at the compensation. This is in a case where there is evidence warranting rendering a finding on the income as also the per centage of disability. There were Exts. A6 and A7 Certificates and as already noted, Ext.X3, Ext.X3 is issued by the Medical College Hospital, Calicut. MFA. NO.1364/01 D 6 7. First of all, we have to consider as to what was the income that can be taken. The accident took place in 1993. The appellant was a driver. There is evidence, of course, to show that the appellant was deriving Rs.1,500/= per month. But, having regard to the year of the accident, we think we can take the income at Rs.1,200/= per month. The multiplier applicable for a person having 23 years of age is 17 going by the Schedule. Even though the learned counsel for the appellant submits that the multiplier 18 may be taken, by virtue of the decision of the Apex court in Smt. Sarla Vewrma & Ors. v. Delhi Transport Corporation & anr. (JT 2009 (6) SC 495), we feel that, in the facts of this case, we can take 17 as the multiplier. 8. The next question which arises for consideration is as to what is to be the per centage of disability to be taken. Going by Ext.A7, the disability is fixed at 30 per cent. It is stated in Ext.A7 dated 27.6.1994 as follows: “This is to certify that Mr. Latheef (Hospital No.0762252) came to Ortho O.P.D. on 31.3.1993 with the following injuries: MFA. NO.1364/01 D 7 1. Old open fracture femur (R) with segmental loss - infected non-union femur (R). Treatment given: Admitted on 31.3.1993 sequestrectomy and skin grafting done on 20.4.1993. He was discharged on 4.5.93. Review on 22.6.1994. He is walking with an alkathine shell support to the (R) lower limb. Check X-ray showed consolidation of the fracture (R) femur. occurred. He was advised to walk with the alkathine support and review to the Ortho OPD after 2 months. His range of movements of the (R) knee is absent. Disability: His permanent disability of the locomotor system is around 30%.” But, in Ext. X3 issued by the Medical Board of the Medical College Hospital, Kozhikode, the disability is certified at 20 per cent. Therein, it is stated as follows: “We after careful examination of Sri. P. Latheef, S/o. Koyakutty, Panhattu House, Unnikulam, MM Parambu, via. Balussery, whose signature is given above, certify that he united supracondylar fracture (R) femur, Patellectomy MFA. NO.1364/01 D 8 (R), 80 degree flexiar of (R) knee and is physically handicapped. His percentage of permanent/partial disability is 20% (Twenty per cent).” 9. We see no reason to accept the contention of the learned counsel for the appellant that the per centage of disability should be fixed at thirty per cent. In the first place, Ext.A7 was issued in the year 1994. Even in Ext.A7, what is stated is the per centage of disability is around thirty per cent. After three years of issuing Ext.A7, no doubt, Ext.X3 was issued and if we accept Ext.X3, necessarily we cannot accept Ext.A7. Therefore, we reject the case of the appellant based on Ext.A7. But, we feel that we can accept the per centage of disability at twenty per cent. On the said basis, we find that the appellant will be entitled to Rs.48,960/= which is rounded off to Rs.49,000/= in place of Rs.1000/= towards disability. 10. On the basis of the income which we have ascertained, we feel that the appellant is entitled to Rs.3,600/= towards loss MFA. NO.1364/01 D 9 of earning which we fix as three months. We also feel that the appellant should be awarded Rs.10,000/= more towards medical expenses, as there is evidence as Ext.A8 series for even more amounts having been spent by the appellant and we can safely award Rs.10,000/= more. As already noticed, no reasons were given by the tribunal for rejecting or accepting the amount. Still further, the appellant points out that he was hospitalised as I.P. for 88 days in different spells. Accordingly, we award Rs.3,000/= more towards pain and suffering. Therefore, the appellant will be entitled to realise Rs.65,600/=. But, we have to necessarily reduce an amount of Rs.1,000/= as Rs.1,000/= was awarded by the tribunal towards loss of earning power. Another Rs.1,000/= also has to be deducted from this as it has already been awarded towards disability by the tribunal. Thus, the Appeal is allowed in part and the appellant is allowed to realise Rs.63,600/= which is rounded off to Rs.64,000/= from MFA. NO.1364/01 D 10 respondents 3 and 6 in equal proportion with interest at 7.5 per cent from the date of the petition till the date of realisation. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge MFA. NO.1364/01 D 11 K.M. JOSEPH & M.L.JOSEPH FRANCIS,JJ. M.F.A.NO.1364 OF 2001 D JUDGMENT 3rd JULY, 2009