IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 MACA.No. 23 of 2004() ------------------------------ OPMV.114/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER. -------------------------------------- SIVADAS, S/O.SREEDHARAN NAIR, AGED 42, MUNDAPUZHA HOUSE, KUDAMALLOOR, AYMANAM VILLAGE, KOTTAYAM, NOW RESIDING AT KUNNELPUTHENPURA HOUSE, RAMAMANGALAM KARA, MARADY VILLAGE, MUVATTUPUZHA. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.M.V.BIPIN RESPONDENTS/RESPONDENTS. ---------------------------------------------- 1. RAJKUMAR BHALKE, S/O.PANDURANGA BHALKE, (A/P.NAYGAN, TALUK SIMMAR) SANTHARAM LANE, KATHRIGE VILLAGE, PUNA NAKKA, NASIK DISTRICT, MAHARASHTRA. 2. THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, MERCHANT CHAMBER, THILAK PATH, NAZIK, MAHARASHTRA. ADV. SRI.MATHEWS JACOB (SR.) FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ J.B. Koshy & Thomas P.Joseph, JJ. -------------------------------------- M.A.C.A. No. 23 of 2004 --------------------------------------- Dated this the 12th day of November, 2008 Judgment Koshy,J. Appellanat/Claimant sustained injuries in a motor accident due to the negligence of the driver of the vehicle insured by the second respondent insurance company. The insurance company contested the case after getting permission from the Tribunal. The Tribunal awarded a total compensation of Rs.1,09,800/- inclusive of medical reimbursement against a claim of Rs.3,50,000/- and directed the insurance company to deposit the same as there was valid insurance coverage for the offending vehicle. The only dispute is regarding the quantum of compensation. 2. Ext.A6 is the wound certificate. Ext.A7 is the wound certificate issued from the Specialists' Hospital, Ernakulam. He was first admitted to Medical Mission Hospital at Kollam. Thereafter, he was taken to Specialist Hospital, Ernakulam as can be seen from Ext.A7. Ext.A7 Medical Certificate shows that the claimant was M.A.C.A. No. 23/2004 2 treated as an inpatient there from 15.11.1996 to 26.12.1996. The condition at the time of discharge of the patient is that the 3rd and 4th toes were amputated. Ext.A8 is the disability certificate issued by an Orthopaedic Surgeon to the effect that the appellant has sustained permanent disability of 18%. He deposed that apart from injuries, 2nd, 3rd and 4th toes on the left foot were amputated and there was absence of active movements of big toe and little toe. It is further stated that there is numbness on the left foot. The Tribunal noticed that for amputation of three toes of the foot as per the schedule to the Workmen's Compensation Act, there is only 6% loss of earning capacity. Therefore, 6% was taken as the percentage of disability. It is settled law that provisions of the Workmen's Compensation Act are incorporated in section 163-A of the Motor Vehicles Act only and not in applications under section 166. Here, apart from the amputation of three toes, there were numbness and absence of active movements of big toe and little toe. According to the appellant, he lost the employment due to the disability. There is no necessity to discard the certificate issued by the doctor. The doctor was examined as PW3 and he proved the certificate. Therefore, compensation ought to have been allowed for M.A.C.A. No. 23/2004 3 18% disability. It has come out in evidence that he was employed as Rubber Grader and Ext.A10 is the salary certificate issued from Modi Rubber Limited, Ernakulam. The certificate shows that his basic pay was Rs.4,660/-, HRA Rs.1,031/- and conveyance allowance was Rs.140/- and gross salary was Rs.5,831/-. The Tribunal did not rely on the certificate as the person who issued the same was not examined and only Rs.2,000/- was taken as the monthly income. We are of the opinion that at least Rs.3,000/- ought to have been taken as the monthly income. He was aged 35 years at the time of accident and 15 was taken as the multiplier. We see no ground to enhance the same. If that be so, compensation payable for disability and loss of earning power will be Rs.3000 x 12 x 15 x 18 100 = Rs.97,200/-. The Tribunal calculated compensation of Rs.27,000/- under this head. So, additional compensation payable will be Rs.70,200/-. It is contended that compensation granted under other heads are very inadequate, but,considering the total amount granted, we are not enhancing the compensation granted under other heads. The above additional amount of Rs.70,200/- ;should be deposited by the second respondent insurance company with 7.5% M.A.C.A. No. 23/2004 4 interest from the date of application till its deposit. On deposit of the amount, appellant is allowed to withdraw the same. Appeal is allowed partly. J.B.Koshy Judge Thomas P. Joseph Judge vaa M.A.C.A. No. 23/2004 5 J.B. KOSHY AND THOMAS P.JOSEPH,JJ. ------------------------------------- M.A.C.A.No.23/2004 ------------------------------------- Judgment Date:12th November,2008