IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 MACA.No. 1290 of 2004() ---------------------------------- (AGAINST THE JUDGMENT DATED 21.2.2004 IN OPMV.669/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA ) .................... APPELLANT(S):PETITIONER. ---------------------------------------- BABU, AGED 40 YEARS, S/O.GANGADHARAN, AYYANCHIRA HOUSE, KODUNGALLOOR. BY ADV. SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH RESPONDENT(S): RESPONDENTS. ------------------------------------------------- 1. BHASKARA MENON, MUNDEKKAL HOUSE, P.O.KUNDANNUR, ERNAKULAM. (DELETED) (THE NAME OF THE IST RESPONDNT IS DELETED FROM PARTY ARRAY AS PER ORDER DATED 18.9.2007 IN I.A.NO.2020/2007) 2. JEO, S/O.JOSEPH, THOTTAPILLY HOUSE, KALLETTUMKARA. 3. THE MANAGER, ORIENTAL INSURANCE CO.LTD., CHALAKUDY. R3 BY ADV. SRI.P.V.JYOTHI PRASAD. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ M.A.C.A.No.1290 of 2004 ---------------------------------------------- Dated, this the 23rd day of July, 2009 J U D G M E N T K.M.Joseph, J. Appellant is the claimant in a petition filed under Section 166 of the Motor Vehicles Act. The application has been partly allowed. The Tribunal has awarded Rs.22,640/- This appeal is directed against the quantum. 2. We heard the learned counsel for the appellant and learned counsel for the insurance company. 3. The learned counsel for the appellant pointed out that the Tribunal has erred in taking the income at Rs.1,500/-. There was evidence to show that the appellant was working as the manager of an ayurvedic company, he submits. It is pointed out that the person was examined to prove that the income is Rs.3,000/- but it is disregarded stating that the person who was examined was not working in the company any more. Secondly, the learned counsel would contend that this is a case where the appellant suffered MACA 1290/2004 -2- fracture of two bones. Though 12 percent disability is certified only 3 percent is taken by the Tribunal. 4. Learned counsel appearing for the insurance company supported the award. 5. The Ist question is what should be taken as the income. The accident took place on 5.2.1996. But, it is a case where the appellant has a definite case that he was working as manager in Augustya Ayurvedic Company Limited and was getting a salary of Rs.3,000/- per month. Pw2 is the Managing Director of the company. Appellant has produced A8 certificate also. We can safely fix the income at Rs.2,000/- per month. No doubt, the Tribunal found that the doctor has taken the present condition of the petitioner and there is chance for improvement. It is noted that the movements of left ankle and left knee were slightly reduced and that appellant can do office work. Petitioner has pain on the left leg and left ankle while climbing steps and squating. We feel that we can enhance the percentage of disability to 6. But, going by the certificate the appellant has rejoined duty. Therefore, the appellant would be entitled to disability MACA 1290/2004 -3- compensation only from retirement in which case the appellant will have a multiplier of only 8. On the said basis namely taking the income as Rs.2,000/- and multiplier as 8 and the percentage of disability as 6 percent the appellant would be entitled to Rs.11,520/- as disability compensation. After deducting the amount already granted the appellant would be entitled to Rs.2,880/- which is rounded off to Rs.3,000/-. We also feel that the appellant can be awarded Rs.7,000/- more towards pain and suffering. It is to be noted that the appellant had fractures of two bones. Further, we feel that the appellant must be awarded a further sum of Rs.3,000/- towards loss of amenities. The appellant is also entitled to Rs.1,500/- more towards loss of earning. Thus, the appellant is entitled to Rs.14,500/- more. Accordingly, the appeal is allowed in part and the appellant is allowed to realise Rs.14,500/- with interest at 7.5 percent from the date of the petition till the date of realisation from the third respondent. The appellant is also entitled to interest at 7.5 percent on the amount already awarded from the date of the petition till the date of realisation from the third MACA 1290/2004 -4- respondent. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS