IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 2ND JUNE 2008 / 12TH JYAISHTA 1930 MFA.No. 474 of 2002(E) ----------------------- OPMV.54/1998 of ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT/PETITIONER :- -------------------------- MR.P.B.SELVARAJ S/O.BHARATHAN, VADAKKEPARAMBU HOUSE, PAZHAVEEDU P.O., ALAPPUZHA BY ADV. SRI.P.VIJAYARAGHAVAN RESPONDENTS/RESPONDENTS 1 TO 3 : ------------------------------------------ 1. MR.T.S.BIJU S/O.SATHYAN,THOMPAYIL HOUSE, OKKAL P.O.,PERUMBAVOOR P.O. * 2. MR.M.K.NAZAR S/O.KHADAR,MUNDATH VEEDU, MALAYATTOOR P.O. (DELETED) 3. THE BRANCH MANAGER,NATIONAL INSURANCE CO.LTD.,NEAR Y.M.C.A. BRIDGE,ALAPPUZHA. (RESPONDENTS 4 & 5 IN O.P.(MV)54/O98 WER FOUND NOT LIABLE BY THE MACT,ALAPPUZHA AND THEREFORE THEY WERE NOT IMPLEADED IN THE APPEAL AS THEY ARE NOT NECESSARY PARTIES) * THE NAME OF THE 2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 22.01.2008 IN I.A.1122/03 BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) - R1 SRI.GEORGE VARGHESE KIZHAKKAMBALAM - R1 SRI.MATHEWS JACOB (SR.) - R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & P.N.Ravindran, JJ. ===================== M.F.A.No.474 of 2002 ===================== Dated this the 2nd day of June, 2008. JUDGMENT Koshy,J. The appellant sustained injuries in a motor accident. The Tribunal found that the accident occurred due to the negligence of the second respondent - driver of the offending vehicle owned by the first respondent and insured by the third respondent. Against a claim of compensation of Rs.2 lakhs, only Rs.66,700 was awarded by the Tribunal. The major dispute is regarding the compensation for permanent disability and loss of earning power. 2. The appellant sustained the following injuries: "1. Superficial lacerated wound 3 cm over the left eye with oadima. 2. Crush injury left foot with swelling around left ankle and Degloving of skin over the dorsum of the left foot and lateral 4 toes. 3. Traumatic amputation tin of little toe, entire dorsum of foot bones exposed markedly contaminated with mud end profuse bleeding." MFA 474/02 -: 2 :- After considering the certificates produced, the Tribunal found as follows: "X-ray examination revealed fracture of both medial and lateral malleoli (minimal displacement) and fracture of the 5th metatarsal, neck of 2nd, 3rd and 4th metatarsal and middle cuniform. Ext.A5 would show that the petitioner was inpatient at the Medical College Hospital till 15.11.97. The injuries mentioned earlier were also mentioned in Ext.A15. It is seen that skin grafting was done and below knee Plaster of Paris slab was applied. Skin grafting was done and 90% graft was well taken and the petitioner was conservatively treated with medicines. It would also show that petitioner had been undergoing treatment till 19/12. Ext.A16, an outpatient ticket would show that the petitioner had also been undergoing treatment till 13.2.98. Ext.A17 is a treatment certificate wherein it is mentioned that the petitioner had:- 1. Crush injury to his left foot with degloving injury of skin from dorsum of foot. 2. Fracture medial and lateral malleolus. 3. Fracture base of 5th metatarsal bone. 4. Traumatic amputation of 5th toe and the petitioner was subjected to skin grafting and as MFA 474/02 -: 3 :- on 18.12.97 he had been continuing treatment and required further rest and treatment for about 2 months. Ext.A18 is a disability certificate where the injuries mentioned above were recorded and further certified that the petitioner had malunited fracture of the 4th metatarsal with shortening of the 4th toe and overriding of the toe, mal union of the fracture of the base of the 5th metatarsal, post traumatic stiffness of the ankle joint with limitation of dorsiflexion movements and had difficulty in squatting, sitting cross legged and climbing stairs and the permanent disability was assessed at 15%." The Tribunal found 12% disability. We see no ground for reduction of the percentage of disability. The contention of the appellant is that in view of the injury he is not able to do the work which he was doing and there is 100% disability and compensation ought to have been granted for permanent disability. In view of the medical certificate the Tribunal ought to have awarded compensation for 15% disability. 3. According to the appellant, he was getting Rs.175/- per day as a design stencilor of coir mats. Ext.A19 is the certificate for proving the same. The Tribunal did not accept the same as MFA 474/02 -: 4 :- the person who issued Ext.A19 was not examined and only Rs.2000/- was fixed as the monthly income. The appellant was maintaining a family. He was employed in a coir factory. In these circumstances merely because Ext.A19 was not proved, it should not have been discarded. In these circumstances, we fixed Rs.3,000/- as his monthly income. The Tribunal has taken 15 as the multiplier. Even though the second Schedule provides 16 as the multiplier for a person aged 32, we are not changing the multiplier fixed by the Tribunal as 2nd Schedule can be used only for guidance. If that be so, the compensation payable will be Rs.3000x12x15/100x15. If that be so, the compensation payable will be Rs.81,000/-. The Tribunal has fixed only Rs.43,200/- for permanent disability and loss of earning capacity. So, the claimant is entitled to Rs.37,800/- on this ground. For treatment, the Tribunal has fixed Rs.5,000/-. For three and a half months he was unable to do any work. Since we have increased his monthly income to Rs.3,000/-, for loss of actual earning during the period of treatment, he is entitled to an additional amount of Rs.3,000/-. We see no ground to change the compensation granted under other grounds. MFA 474/02 -: 5 :- 4. The additional amount of Rs.40,800/- should be deposited by the third respondent - Insurance Company with 7% interest from the date of application till its deposit over and above the compensation awarded by the Tribunal. On deposit of the amount, the claimant is allowed to withdraw the same. The appeal is partly allowed. J.B.Koshy, Judge. P.N.Ravindran, Judge. ess 2/6