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. 2114 of 2007(A) ------------------------ OPMV.134/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT(S): APPELLANT - PETITIONER ------------------------------------ RAJESH JOSEPH, KAKKATTIL HOUSE, PULIYANNOR P.O., KOTTAYAM. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S): --------------- 1. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRIVANDRUM. 2. SHAJUMON, S/O.RAMAN PILLAI, KOTTARATHIL HOUSE, THALAPPALAM VILLAGE, MELAMPARA KARA. ADV. SHRI.JOHNSON P.JOHN, SC, KSRTC FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.6.2009 , THE COURT ON 15/06/2009 PASSED THE FOLLOWING: K.M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. ```````````````````````````````````````````````````` M.A.C.A. No. 2114 OF 2007 A ```````````````````````````````````````````````````` Dated this the 15th day of June, 2009 J U D G M E N T Joseph, J. The appellant suffered injuries. The appellant is the claimant in a petition filed under section 166 of the Motor Vehicles Act. He is aggrieved by the inadequacy of the quantum. 2. We heard learned counsel for the appellant and learned counsel for the KSRTC. 3. Learned counsel for the appellant would point out that while computing the compensation towards disability after finding the income at Rs.3,000/- the Tribunal has erred in taking the net income by providing one third deduction towards personal expenses. He would point out that the appellant had passed the intermediate examination as proved by Ext.A5. He was working in the Plantation Corporation as a trainee and it is while so the accident occurred resulting in the appellant not getting a permanent job with the Plantation Corporation and if he had got such employment he would have earned Rs.10,000/- per month, it MACA.2114/07 : 2 : is stated in his chief examination. He further contends that if he had got such employment, at the present stage he would have received Rs.20,000/-. He further submits that the Tribunal has erred in taking the disability percentage at 50% and this is a case where there was an amputation just above the knee. He would submit that the Tribunal has erred in computing the disability at 50%. According to him, the Tribunal has proceeded as if it is the case of amputation below the knee. He would submit that actually the disability should have been taken at 70%. Of course, there is a claim for loss of marriage prospectus as a result of the injury. 4. Learned standing counsel points out that there is no evidence for increased income. He would further submit that there is no basis for taking 70% as disability. 5. As far as the income is concerned, admittedly the appellant was earning Rs.2,500/- at the time of training. The Tribunal has taken Rs.3,000/- as income. It may not be appropriate to further enhance the amount. As far as the income is concerned, there is only testimony of the appellant. As pointed out by the learned standing counsel, the appellant had passed the MACA.2114/07 : 3 : intermediate in 1999 when he was nearly 27 years of age and that he has no case that he has even attempted to pass the final examination. At the present stage even before us there is no case that he has passed the final examination. Therefore, he may not be justified in enhancing the income on the basis of testimony of the appellant. But, the Tribunal was certainly wrong in deducting one third from Rs.3,000/-. It is not a case of death and this is the amount which the appellant would have received and there is no basis for reducing one third. Accordingly, we set aside the finding that the one third has to be deducted. We award Rs.1,02,000/- more towards disability. We feel that the appellant should be granted Rs.15,000/- more towards loss of amenities taking into consideration the fact that the appellant did have a claim under the head loss of amenities and the appellant's leg was amputated above the knee as pointed out. The appellant referred us to the Workmen's Compensation Act to enhance the disability percentage to 70%. On a perusal of the entries in Part II of the Schedule we do not think that the appellant would come under Serial No.18 of Part II Schedule I of the Workmen's Compensation MACA.2114/07 : 4 : Act as claimed. It reads as follows: “ 18. Amputation below hip with stump exceeding 12.70 cm in length measured from tip of great trenchanter but not beyond middle thigh.” The appellant has not made out a case of amputation contemplated as against Entry 18. Thus, the appeal is allowed in part and the appellant is allowed to realise Rs.1,17,000/- more with interest at the rate of 7.5% from the date of the petition till the date of realisation. The first respondent shall deposit this amount within two months from today. (K.M.JOSEPH, JUDGE) (M.L. JOSEPH FRANCIS, JUDGE) aks