IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 22ND JANUARY 2008 / 2ND MAGHA 1929 MFA.No. 635 of 2002(C) ---------------------- OPMV.1799/1992 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA .................... APPELLANT: 3RD RESPONDENT: -------------------------- UNITED INDIA INSURANCE CO.LTD., REPRESENTED BY BRANCH MANAGER, ALLEPPEY. BY ADV. SRI.P.V.JYOTHI PRASAD RESPONDENTS: PETITIONER & RESPONDENTS 1 & 2: -------------------------------------------- 1. ASHARAF P.U., C.T.S. BUILDING, PERUNGALA (MUKKAVALA), KAYAMKULAM. 2. THAHARKUTTY, PANACHEMOOTIL VEEDU, PERINGALA, KAYAMKULAM. 3. O.NAZAR, PULIMOOTIL HOUSE, WARD NO.17, KAYAMKULAM. BY ADV. SRI.P.SREEKUMAR SRI.K.S.MANU (KOLLAM) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA,JJ. ----------------------------------------- M.F.A.No.635 of 2002 ----------------------------------------- Dated this the 22nd day of January, 2008 JUDGMENT Koshy, J. Insurance Company filed this appeal challenging the quantum of compensation awarded by the Tribunal. First respondent in this appeal met with an accident due to negligence of the driver of the vehicle insured by the Insurance Company. He claimed a compensation of Rs.3,00,000/-. The Tribunal found that he is entitled to a compensation of Rs.3,38,800/-. But, since he claimed only Rs.3,00,000/-, only Rs.3,00,000/- was awarded with interest. Only quantum of compensation is disputed in the appeal. Out of Rs.3,00,000/- awarded, Rs.1,75,000/- was awarded for treatment and by-standers expenses. Actual earning was Rs.20,000/-. For disability and loss of earning power, another Rs.1,00,000/- was awarded. These are the main grounds of attack. The injuries noted in Exhibit P11 wound certificate are as follows: “1.Compound fracture of the right leg involving both bones with bones stretching out. Extensive laceration of underlying muscles over an area 20cm x 12cm with bleeding. 2. Lacerated injury on the inner aspect or upper lip 0.5 cm x 0.5 cm muscle deep. 3. Abrasion on left elbow 1 cm x 1 cm.” M.F.A.635/02 2 The documents produced before the Tribunal show that immediately after the accident, he was taken to the Government Hospital, Kayamkulam. Thereafter he was referred to the Medical College Hospital for expert treatment. He was inpatient in the Thiruvananthapuram Medical College for ten days. Thereafter, he was treated in Cosmopolitan Hospital, Thiruvananthapuram as an inpatient for about 9 months. He was treated in the Appollo Hospital for about one year. Exhibit A5 series show that about nine months he was treated as an inpatient in the Cosmopolitan Hospital. Exhibit A10 series are two discharge summaries dated 17.1.1992 and 1.7.1992 issued from the Appollo Hospital, Madras. In Exhibit A10 discharge summary it was shown as follows: “Non-union of right tibia. He was treated at Cosmopolitan Hospital, Kerala with external fixation and cross flap. His right leg was in above knee back slab. Sinus was present on the dorsal aspect of right tibia.” It further shows that after investigations, petitioner was taken for surgery and ilizarov apparatus was fixed and post operative period was uneventful. He was admitted on 6.1.92 and discharged on 16.1.92 with the advice to continue dressing once in 3 days and to go for physiotherapy daily and for weight bearing and walking. The petitioner had, accordingly, attended the hospital from 21.1.92 to M.F.A.635/02 3 25.8.92. The following things are noted in Exhibit A10(a), discharge summary: Old case of fracture non-union for which segment transportation of tibia was going on by ilizarov apparatus fixation. The petitioner has again undergone a surgery of open realignment tibia on 24.6.1992. He was again an inpatient for six days. The certificate would show that he had undergone treatment for long period of about two years. The Tribunal fixed his monthly earning as Rs.2,500/-. According to the claimant, he was running Fathim Match Industries and due to the injuries, he was unable to continue his business. In the court he deposed that he was getting more than Rs.5,000/- per month. The Tribunal accepted only Rs.2,500/- as the monthly income and for 20 months treatment period Rs.30,000/- was allowed towards loss of actual earnings. It shows that he was granted only actual loss of earnings for 12 months, even though he continued under treatment for about two years. After the treatment for long period from Medical College Hospital, he was inpatient in Cosmopolitan Hospital and thereafter in Appollo Hospital, Madras. Operations were done, fractures were not united. Several modern techniques were used. In the above circumstances, compensation awarded for medical treatment and by-standers expenses cannot be stated as very high or arbitrary. The Tribunal noticed that even at M.F.A.635/02 4 the time of examination he was not able to stand or walk for long and while standing, there will be swelling in the lower portion of right knee. His ankle is stiff and he had limping. For grafting on the right leg, flesh was taken from the posterior portion below the left knee and due to which, disfigurement is there also. Skin was taken for grafting from his both thighs. According to the petitioner, even at the time of examination, he was under treatment. Exhibit A5 certificate issued by the Orthopaedic Surgeon, Appollo Hospital shows that there was 40% disability at that time. However, after physiotherapy and treatment there should be improvement. Considering all these facts, the Tribunal awarded Rs.1,00,000/-. Even if 20% disability is taken into account, taking monthly income as Rs.2,500/- compensation payable will be Rs.96,000/- taking 16 as the multiplier, considering his age as 36 at the time of accident. Therefore, Rs.1,00,000/- awarded by the Tribunal for disability and loss of earning capacity cannot be taken to be very high. In fact, the Tribunal has fixed Rs.3,38,800/- and then awarded only Rs.3,00,000/-. Therefore, no interference is needed in the fixation of award by the Tribunal. But, we note that even though the Tribunal awarded 12% interest from the date of filing of petition till realisation, considering the interest rate applicable in 2001, we M.F.A.635/02 5 reduce the interest rate from 12% to 9%. The Insurance Company shall deposit the balance amount after deducting the amount already deposited. Since the accident occurred more than one-and- a-half decade ago, on deposit of the amount, the claimant is allowed to withdraw the same. With the above modification of the award, the appeal is disposed of. J.B.KOSHY, JUDGE K.HEMA, JUDGE vgs. M.F.A.635/02 6 J.B.KOSHY & K.HEMA, JJ. ------------------------------ M.F.A.No.635 of 2002 ------------------------------ JUDGMENT 22.1.2008