IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 MACA.No. 1150 of 2008() ----------------------- OPMV.1054/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT/3RD RESPONDENT: ------------------------------------------------ THE ORIENTAL INSURANCE COMPANY LTD., KOTTAYAM NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT/PETITIONER: ------------------------------------------ PREM SAGAR, S/O. SREEDHARAN NAIR, VIDYA BHAVAN, KARIMPANIPADY BHAGOM, KADAYANIKKAD KARA, VELLAVOOR VILLAGE. ADV. SRI.R.GIREESH VARMA FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.1375/2008 IN M.A.C.A.NO.1150/2008 DISMISSED 4/12/2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 1150 OF 2008 --------------------------------- Dated this the 4th day of December, 2008 JUDGMENT This appeal is preferred against the award of the Motor Accident Claims Tribunal, Pala in O.P.(MV) No.1054/2004. The claimant sustained injuries in a road accident, resulting in a fracture on the clavicle. The tribunal awarded a compensation of Rs. 49,100/- by fixing the disability at 6%. The Insurance Company has contested the matter under Section 170 of the Motor Vehicles Act and now in appeal challenges the quantum of compensation awarded. 2. The learned counsel for the Insurance Company would contend that the tribunal directed the claimant to appear before the medical board but he never presented himself before the board. The tribunal found that there was a mal-union of the fracture and also there is angulation and rigidity. One has to state that the courts are not medical experts and when things are to be established by medical evidence, that to by radiological examination and other tests, it was not proper for the court to assess the disability and decide the compensation. But it has to be stated that M.A.C.A. No. 1150/2008 -2- a person can see about the mal-union because when the clavicle fracture joints unless it join in that line there will be a protruding or projection and therefore it is normally called as mal-union. One may be able to see the mal-union with naked eye but that does not mean that the mal-union has caused disability to a person. Therefore the tribunal's conclusion that 6% disability was there is not proper. This court is also helpless for the reason that there is no medical evidence to show the disability. But when the person has been directed to appear before a medical board and has declined to appear before the same, he may have to face the consequences of the same. Considering the factum of mal-union, I do not want to reduce the total disability compensation. I reduce it to 3%. Similarly for this clavicle fracture the tribunal awarded excess compensation for pain and suffering. After awarding a permanent disability compensation that to without much materials it again awarded Rs. 5,000/- for loss of amenities. So these are all matters which requires consideration. I reduce the compensation for pain and suffering by Rs. 3,000/- and loss of amenities by Rs. 2,000/- when the disability is reduced to 3%, then compensation would come to Rs. 10,800/-. Therefore a reduction of Rs. 10,800/-. M.A.C.A. No. 1150/2008 -3- When it is so ,the total compensation to be deducted would be Rs. 15,800/- and so the entitlement will be only Rs. 33,300/-. To this extend the award has to be modified. Similarly I find that the interest awarded is also on the higher side. 7.5% would be sufficient. Therefore revised award is passed and the claimant is awarded a compensation of Rs. 33,300/- with 7.5 % interest on the said sum from 18.10.04 till realisation with the cost ordered by the tribunal. The third respondent Insurance Company is directed to deposit the amount. If any amount is deposited, that can be adjusted and balance need be deposited. The amount may be deposited within 60 days from the date of receipt of the copy of the judgment. M.N. KRISHNAN,JUDGE vkm