IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 14TH JANUARY 2008 / 24TH POUSHA 1929 MFA.No. 870 of 2002 OPMV.4092/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM APPELLANT: PETITIONER --------------------- JAMSON, AGED 36 YEARS, SON OF ALEXANDER, PARAPPILLY HOUSE, EDAYAKKUNNAM, S.CHITTOOR P.O., COCHIN - 27. BY ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. RESPONDENTS: RESPONDENTS ------------------------ 1. DOMINIC VARGHESE, S/O.K.J.VARGHESE, KANACHIERIL HOUSE, ANCHAL, CHITHIRAPURAM P.O., MUNNAR, IDUKKI DISTRICT. 2. C.RAVI, S/O.CHELLAPPAN, ELAMKUTTU HOUSE, ANCHAL KARA, VALLATHOOVAL VILLAGE, IDUKKI DISTRICT. 3. THE ORIENTAL INSURANCE CO.LTD., COCHIN-35. R1 BY ADV. SRI.JOHNSON ABRAHAM THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.T.SANKARAN, JJ. ---------------------------------------------------- M.F.A. NO. 870 OF 2002 C ---------------------------------------------------- Dated this the 14th January, 2008 JUDGMENT J.B.KOSHY, J. The appellant/claimant suffered serious injuries in a motor accident and he claimed a total compensation of Rs.1,82,750/-. The Tribunal, though found that the accident occurred due to the negligence of the driver of the vehicle insured by the third respondent insurance company, awarded only Rs.40,500/- as compensation. Only the quantum of compensation is disputed in the appeal. 2. The appellant was an Interior Decorator. He claimed Rs.3,500/- as his monthly income. In the absence of evidence, the Tribunal has fixed Rs.1,500/- as his monthly income. He was maintaining a family and, according to him, he was the sole bread winner of the family. The accident occurred in 1996. Even a manual labourer in Kerala State will get more than Rs.100/- per day and will get 25 to 26 days work in a month. We are of the opinion that at least Rs.2,500/- can be fixed as his monthly income. As far as the injuries are concerned, the wound certificate shows the following injuries: “1. Fracture head of 2nd metatarsal (R) 2. Comminuted fracture shaft of 3rd and 4th (R) metatarsal M.F.A. NO.870 OF 2002 C :: 2 :: with displacement. 3. Fracture head of 5th metatarsal (R) 4. Fracture head of proximal phalanx of (R) little toe. 5. Dislocation of metatarso phalangeal joint (R) hig toe. 6. Fracture (R) medial malleolus. 7. Abrasion proximal 1/3 (R) leg. 8. Lacerated wound 5 x 2 cm above and posterior to lateral melleolus (R). Fractures reduced and stabilised using K wires. Dislocation MTP joint reduced and stabilised using K wires wound debridement and irrigation done followed by suturing and dressing. Treated with antibiotics, analgesics and anti inflamatory medicines and POP slab. Dislocation of (R) MTP big toe (R) foot and ankle fractrure head of 5th MT. 2nd MT fracture displacement shaft, 3rd and 4th MT, fracture proximal phalanx (R) little toe and fracture (R) medial malleolus.” The Medical Board certified 15% disability. One of the members of the Medical Board was examined as PW3 to prove the medical certificate. The Tribunal has fixed the disability only at 5% and without taking any specific calculation, the Tribunal awarded Rs.5,000/- only towards compensation for disability. No valid reasons are stated by the Tribunal to differ from the opinion expressed by the Medical Board in Ext.A9 certificate, proved by PW3 doctor. Appellant was 30 years old. Taking guidance from the second schedule, 17 is the multiplier. If compensation M.F.A. NO.870 OF 2002 C :: 3 :: is calculated for 15% disability, the compensation will be Rs.76,500/-. After deducting Rs.5,000/- granted by the Tribunal, the balance will be Rs.71,500/-. The Tribunal found that the appellant was completely laid up for two months and awarded Rs.3,000/- as loss of wages. Since we have increased his monthly income by Rs.1,000/-, he is entitled to Rs.2,000/- more for loss of actual earnings. We are of the view that the compensation granted by the Tribunal under other heads are just and reasonable. The appellant will be entitled to an additional amount of Rs.73,500/- over and above the amount decreed by the Tribunal. The additional amount of Rs.73,500/- should be deposited by the third respondent insurance company with 7.5% interest from the date of application till deposit. On deposit of the amount, the appellant is allowed to withdraw the same. The Miscellaneous First Appeal is partly allowed as indicated above. (J.B.KOSHY) Judge (K.T.SANKARAN) Judge ahz/ J.B.KOSHY & K.T.SANKARAN, JJ. ------------------------------------------- ------------------------------------------- M.F.A.NO. 870 OF 2002 JUDGMENT 14th January, 2008 -------------------------------------------