IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930 MFA.No. 742 of 2002(E) --------------------------------- O.P(MV).NO.85/1994 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,WAYANAD, KALPETTA. .................... APPELLANT/ PETITIONER: -------------------------------------- C.S.BENNY, S/O.SEEMON, AGED 21 YEARS CHITTOLIL HOUSE, ARIMALI, P.O.NENMENI, S. BATHERY TALUK, WAYANAD DISTRICT. BY ADV. SRI.E.S.M.KABEER, ADV. SRI.E.S. MOOSA. RESPONDENTS/ RESPONDENTS: ------------------------------------------------ 1. K.P.NAZER, S/O. AHAMMED, AGED 27 YEARS, KUNHIPARAMBATH HOUSE, NAZEERA MANZIL, NAZEERA FLOUR MILL, PANAMARAM, P.O. PANAMARAM, WAYANAD DISTRICT, (OWNER OF JEEP KL-12/1847). 2. M.K.NAZER, S/O.KUNHAMMED, AGED 24 YEARS, MUYYARIKANDI HOUSE, CHALIL BAGAM, P.O.PANAMARAM, WAYANAD DISTRICT, (DRIVER OF JEEP KL-12/11847, D/L.NO.1090/89 W). 3. THE NEW INDIA ASSURANCE CO.LTD., KALPETTA BRANCH, P.O.KALPETTA, WAYANAD DISTRICT, (POLICY NO.3176060403259). BY ADV. SRI.M.RAJAGOPALAN - R3, ADV. SRI.RAJIT - R3. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & P.N. RAVINDRAN, JJ. ---------------------------------------------------- M.F.A.NO.742 OF 2002-E ---------------------------------------------------- Dated this the 6th day of June, 2008. JUDGMENT Koshy, J: The appellant/claimant sustained injuries in an accident on 25.12.1993. The Tribunal found that the accident occurred due to the negligence of the 2nd respondent, driver of the jeep owned by the 1st respondent and insured by the 3rd respondent, the insurance company. The compensation awarded was only Rs.26,000/= The dispute is regarding quantum of compensation. With regard to the injury suffered, the Tribunal has discussed the evidence as follows: “To prove that in the accident, the petitioner sustained injuries, the petitioner has relied on Ext.A2 copy of the wound certificate, Exts.A4 to A6 operation index cards and Ext.X1 case sheet from the Medical College Hospital, Thiruvananthapuram. A perusal of the said documents would show that in the accident, the petitioner has sustained the following injuries: “Compound fracture near the middle of left tibia”. Ext.A2 would further go to show that immediately after the accident, the petitioner was taken to the Govt. Hospital, Sulthanbathery and from where, he was referred to the Medical College Hospital, Calicut. Ext.A5 would show that the petitioner was admitted in the Medical College Hospital, on the same day and treated there as inpatient. Ext.A4 would further go to show that the petitioner was admitted in the Medical College MFA.NO.742/2002 . 2 Hospital, Calicut as inpatient for a period of two days. Ext.A6 would go to show that the petitioner w as again admitted in the Medical College Hospital, Calicut and treated there as inpatient for a period of nine days for the purpose of removing Ilizarove. Ext. XI would show that the petitioner w as treated in the medical College Hospital, Thiruvananthapuram and he was admitted there as inpatient for a period of one day.” Ext.A3 disability certificate was produced but compensation was not awarded for permanent disability and loss of earning power. Considering the compound fracture near the middle of left tibia, We are of the view that the Tribunal ought to have accepted the medical certificate and calculated the compensation at least for 10% disability. The appellant had undergone various treatments, operations etc. According to the claimant, he was getting Rs.2,000/= per month and he was earning the above amount by way of working as a mechanic in a workshop. The Tribunal did not accept the same and fixed his monthly income as Rs.700/=. As per 2nd schedule, monthly income of a non-earning member is Rs.1,250/=. He was a earning person. We are of the opinion that at least Rs.1,000/= can be fixed as his monthly income. He was aged 21 years at the time of the accident. Taking 2nd schedule for guidance, 17 is the apt multiplier. If that be so, the compensation for permanent disability and loss of earning power is Rs.30,600/= (1500x12x10/100x17). From this Rs.5,000/= has to be deducted. MFA.NO.742/2002 . 3 The balance amount payable will be Rs.25,600/=. The Tribunal has awarded Rs.1,400/= for loss of earnings for three months. We have fixed Rs.1,500/= as the monthly income, he would get Rs,1,400/= more on that count. Considering the compound fracture near the middle of left tibia, we are of the opinion that at least for three months he was not able to do any work. So total compensation for loss of actual earnings during the period of treatment and inability is Rs.4,500/=. Deducting Rs.1,400/= awarded by the Tribunal, the balance payable will be Rs.3,100/=. Therefore, the additional compensation payable will be Rs.28,700/=. It is contended that compensation granted for pain and sufferings, treatment, other expenses etc are inadequate. Considering the total compensation, we are not enhancing the compensation under other counts. The additional amount of Rs.28,700/= is ordered to be deposited by the 3rd respondent insurance company with 7.5% interest from the date of the application till the date of deposit over and above the decreed amount. On deposit of the same, the appellant is allowed to withdraw the same. The appeal is allowed as above. J.B. KOSHY, JUDGE. P.N. RAVINDRAN, JUDGE. MFA.NO.742/2002 . 4 cl J.B. KOSHY & P.N. RAVINDRAN, JJ. M.F.A.NO.742 OF 2002-E JUDGMENT 6th day of June, 2008. MFA.NO.742/2002 . 5