IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930 MACA.No. 193 of 2004() ---------------------------------- OPMV.623/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): PETITIONER: ------------------------ N.K.VIJAYAN, NAMBILLY HOUSE, P.O. NADARAVAMBA, THRISSUR DIST. BY ADV. SRI.P.VIJAYAKUMAR SRI.C.G.SHISHEER RESPONDENT(S): RESPONDENTS: --------------------------- 1. K.P.VINCENT, KOONAN HOUSE, P.O. OLLUR, THRISSUR DISTRICT. 2. VARGHESE, S/O. OUSEPH, EDAPPULLY HOUSE, PULPARAKUNNU, KODAKARA VILLAGE, THRISSUR DISTRICT. 3. THE MANAGER, UNITED INDIA ASSURANCE CO. LTD., KUNNAMKULAM BRANCH. ADV. SRI.PMM.NAJEEB KHAN FOR R3 SRI.V.BINOY RAM FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. ================================ M.A.C.A.No.193 of 2004 =============================== Dated this the 18th day of November, 2008. J U D G M E N T KOSHY, J. The claimant sustained injuries in an accident on 13.5.1994. He claimed compensation of Rs.5,00,000/-. But Tribunal awarded an amount of Rs.1,32,000/- inclusive of medical expenses. The only dispute in this case is regarding the quantum of compensation. Insurance coverage is admitted by the 3rd respondent. As reagrds the injury sustained by the appellant is concerned, the Tribunal considered the same in detail as follows; “Ext.A6 is the wound certificate issued from Aswini Hospital, Thrissur and Ext.A6 series are the discharge summaries 3 in number. Exts.A6 and A7 proved that the petitioner has sustained the following injuries:- “1) Fracture shaft of right femur. 2) Fracture upper part of left femur. 3) Fracture shaft of left femur. 4) Abrasions on the left elbow, right knee, chest and left hand. 5) Lacerated wound right big toe. 6) Lacerated wound 1 c.m. X 0.5 c.m. between III and IV toe(Rt.) 7) Lacerated wound 2nd toe left foot. 8) Lacerated wound on the left cheek.” M.A.C.A.No.193 of 2004 2 Initial inpatient treatment in the Aswini Hospital was from 13.5.1994 to 31.5.1994. During this period the treatment given was open reduction and internal fixation under general anesthesia for the fractures. The petitioner was again hospitalised on 1.11.1995, during this time he had an inpatient treatment till 14.11.1995. The admission in the hospital was for the removal of internal fixation, and it was removed on 2.11.1995. This fact is evident from Ext.A9(1) discharge summary. He was again hospitalised on 22.7.1996, during this time the hospitalisation was for 7 days and he was discharged on 29.7.1996. This time also the inpatient treatment was for the purpose of removal of a part of the implant. Ext.A8 is the disability certificate issued by an orthopedic surgeon attached to the Taluk Hospital, Irinjalakkuda. The Doctor found out shortening of left lower limb by 1 inch. There was limitation of hip flexion from 90˚ and abduction from 35˚. He had wasting of glutal muscle of left side with weakness of Grade IV, quadriceps tightness of both sides was noted. The petitioner has difficulty for squating. He has difficulty for prolonged standing and climbing. His permanent disability was assessed as 31%. The available evidence establish that the petitioner has sustained severe injuries and fractures to the main weight bearing bones of both lower limbs. The right and left femur were fractured at two places. The fracture had to be treated by open reduction and internal fixation. He was on impatient treatment for a considerably long period. The follow up treatment continued till 29.7.1996.” 2. The leave certificate produced from the KSRTC states that he was on leave from 30.5.1994 to 31.1.1997. Leave salary for the period will come to an amount of Rs.1,13,839/-. The evidence also states that after his treatment, he was not able to work as a conductor and he was advised light duty. The Tribunal has granted Rs.66,196/- for loss of leave. The Tribunal M.A.C.A.No.193 of 2004 3 was of the view that part of the leave period will be covered by eligible leave and there is no evidence regarding the same. It is also not discernible from the certificate whether the amount mentioned includes duty allowance, travelling allowance, dearness allowance etc., as the certificate only shows total pay and allowances for the period covered by leave. Hence, we are not enhancing the compensation for actual loss of earning during the long leave. But considering the injuries it can be seen that he will not be able to work anywhere after his retirement. It is true that KSRTC being a public sector undertaking, retains him by giving light duty. Ext.A8 disability certificate shows 50% disability. Considering the mal-union of the fractures, compensation for at least 30% disability and loss of earning power ought to have granted. Since he did not loose employment, and as he has to retire at the age of 60, Tribunal had taken 5 as multiplier. As per the 2nd schedule, considering his age, the multiplier is 5. Since he continued in employment we are not changing the multiplier. He has to live with this disability till the end of his life. The monthly income taken as Rs.1,500/- has to M.A.C.A.No.193 of 2004 4 be changed because only 5 is taken as multiplier and the actual salary received by him at the time of accident. We are not taking into account the subsequent increase in salary for the purpose of calculation of compensation but Rs.3,000/- can be taken as monthly income for the purpose of calculation of compensation and taking 5 as multiplier compensation for 30% disability and loss of earning power will be Rs.54,000/- (3000 X 12 X 13/100 X 5). The Tribunal has granted only Rs.13,500/-. Hence, additional compensation payable for loss of earnings will be Rs.40,500/-. For pain and suffering, Tribunal has granted only Rs.8,000/- even though he was on inpatient treatment for 39 days and several fractures and more than two operations were conducted on him. Taking into consideration these facts, another Rs.4,000/- should be awarded for pain and suffering. Since he has to suffer the difficulties till the end of his life, we are awarding another Rs.2,000/- for loss of amenities in life. Therefore, the additional compensation payable will be Rs.46,500/-. The 3rd respondent is directed to deposit an amount of Rs.46,500/- over and above M.A.C.A.No.193 of 2004 5 the compensation decreed by the Tribunal with 7.5% interest from the date of application till the date of deposit. On deposit of the same, the appellant is allowed to withdraw the same. J.B.KOSHY, JUDGE THOMAS P. JOSEPH, JUDGE bkn/-