IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 MACA.No.124 of 2003 (D) ------------------------------ OPMV.572/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/PETITIONER ------------------------------ PARAYI RENIL KUMAR, S/O. NARAYANAN, AGED 25 YEARS, SARNAS, KEEZHALLUR, PERAVOOR P.O., KARA PERAVOOR, (VIA) MATTANNUR. BY ADV. SRI.M.K.DAMODARAN (SR.) RESPONDENTS: RESPONDENTS ------------------------------------ 1. A.G.ARJUN S/O. GOPAL,ASWATHI, P.O.EDAKKAD, KANNUR DISTRICT, OWNER OF SCOOTER KL.13/5690. 2. K.R.RADHAKRISHNAN, S/O. GOVINDAN, MADHAVI NIVAS, P.O.AZHIKKAL, KANNUR. 3. M/S. ORIENTAL INSURANCE CO.LTD., KANNUR. ADV. SRI.MATHEWS JACOB (SR.) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.A.C.A.No.124 of 2003 --------------------------------- JUDGMENT Balachandran, J. Appellant, a bus conductor by occupation, sustained injuries in a motor accident on 1.1.1997, he having been hit down by a scooter ridden by the second respondent while he was walking along the public road at Kannur. The first respondent is the registered owner of the said scooter and is insured with the third respondent Insurance Company. He claimed a total compensation of Rupees Three lakhs for the injuries sustained to him and the Tribunal awarded only an amount of Rs.95,200/- by way of damages. Hence this appeal by the claimant claiming enhancement in compensation. Apart from the sufficiency of quantum of compensation awarded, no other dispute arises for consideration in this appeal and hence we are considering that aspect alone. MACA 124.03 2 2. According to the appellant, he was earning a monthly income of Rs.4,000/- as conductor of a bus. But the Tribunal accepted only a notional income of Rs.1,500/- per month. Exhibit A2 series discharge certificates issued from A.K.G.Hospital, Kannur and City Hospital Research & Diagnostic Centre, Mangalore show that he underwent inpatient treatment for nine days in the local hospital and continued the treatment for thirty days in the City Hospital. He had fracture of both bones of left leg middle 1/3 and fracture of ulna upper 1/3, apart from other external injuries. Reduction of fractured bone was done at the A.K.G. Hospital, Kannur and in City Hospital, inter locking of tibia and ulna plating were done under general anesthesia. Exhibit A3 wound certificate and Exhibit A4 treatment certificate confirm the correctness of the details of the injuries recorded in Exhibit A2 series. It is also submitted that apart from the treatment expenses, an approximate MACA 124.03 3 amount of Rs.15,000/- will be required for removal of the implant. Exhibit A6 is the disability certificate issued by two Orthopaedicians of City Hospital, Mangalore. Exhibit A7 salary certificate allegedly issued by the employer, however, showed that he was drawing a monthly salary of Rs.4,620/-. Exhibit A6 disability certificate certifies permanent disability of 10%. The Tribunal has accepted only 5% disability, as according to it, it is not discernible as to whether 10% disability was of the particular limb or the whole body disability. Exhibit A6 shows that there was restriction of the movement of the left forearm. Fracture was also there for both bones of the left leg. Considering the serious nature of the injuries sustained to the appellant, we are of the view that disability of 10% certified jointly by two Orthopaedicians should have been accepted by the Tribunal and that there was no reason to estimate the disability at a lesser percentage. Although it MACA 124.03 4 is contended by the counsel for the appellant that the monthly income of the appellant should have been accepted at least as Rs.4,000/-, we are of the view that in the absence of proof of income earned by the appellant, the Tribunal was justified in accepting Rs.1,500/- as the notional income of the appellant. The Tribunal has taken the apt multiplier of 17 in awarding the compensation. Hence the compensation due for permanent disability and loss of earning power will be Rs.30,600/- (1500 x 12 x 10/100 x 17). The Tribunal has awarded only Rs.15,300/- towards permanent disability and loss of earning power. The appellant will, therefore, be entitled to an additional amount of Rs.15,300/- by way of compensation for permanent disability and loss of earning power. Though it is contended that enhancement deserves to be made in compensation awarded under other heads as well, we are of the view that considering the total compensation awarded, no further enhancement deserves to be made MACA 124.03 5 in the compensation awarded under other heads. The enhanced compensation of Rs.15,300/- should be deposited by the third respondent Insurance Company within two months from today with 7% interest per annum from the date of application till its deposit. On such deposit, the appellant is allowed to withdraw the same. Appeal is allowed in part. (J.B.Koshy, Judge) 16th October, 2008 (K.P.Balachandran, Judge) tkv MACA 124.03 6 J.B.Koshy & K.P.Balachandran, JJ. -------------------------- M.A.C.A.No.124 of 2003 -------------------------- JUDGMENT 16th October, 2008