IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 M.A.C.A.No.8 of 2003 (B) ----------------------------- OPMV.1382/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT/PETITIONER IN O.P.(MV) NO.1382/97: ------------------------------------------------------------- THATTARATHODI VENUGOPALAN, S/O. KUTTAN, AGED 36 YEARS, RESIDING AT POONTHOTTAM, PATHIRIYAL P.O., THIRUVALI VIA., MALAPPURAM DISTRICT. BY ADV. SRI.P.GOPAKUMARAN NAIR RESPONDENTS: RESPONDENTS IN O.P.(MV)NO.1382/1997: --------------------------------------------------------------------- 1. T. SUBRAMANNIAN, THANNIGOTTUNGAMAL- HOUSE, PUTHENCHERUPARAMBA, AREACODE P.O., MALAPPURAM DISTRICT. 2. K.K. ABDU, S/O. MOHAMMED, KUNNAMKULAM HOUSE, URANGATTIRI P.O., AREACODE (VIA), MALAPPURAM DISTRICT. 3. M/S. NATIONAL INSURANCE COMPANY LTD., MANJERI P.O., MALAPPURAM DISTRICT. ADV. SRI.P.SAMSUDIN FOR R2 SRI.MATHEWS JACOB (SR.) FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. B. KOSHY & K. P. BALACHANDRAN, JJ. ------------------------------------------------ M. A. C. A. No.8 of 2003 ------------------------------------------------ Dated this the 17th day of October, 2008 JUDGMENT Koshy, J Appellant/claimant sustained injury in a motor accident due to the negligence of the first respondent/driver of the vehicle insured by the third respondent/Insurance Company. Against a claim of Rs.2,88,000/-, the Tribunal awarded Rs.80,000/- and directed the third respondent/Insurance Company to deposit the same with 9% interest. Only dispute is regarding the quantum of compensation. 2. The appellant was a Goldsmith by profession. According to him, he was getting Rs.3,000/- per month as monthly income. Ext.A5 certificate issued by M/s A.B.Bangles stating that he was working in the concern for daily wages of Rs.250/-. But that certificate was M. A. C. A. No.8 of 2003 -2- not properly proved. The Tribunal fixed Rs.1,800/- as the monthly income. The accident occurred in the year 1995. Considering the earnings of a Goldsmith and considering the fact that he was maintaining a family, we are of the opinion that at least Rs.2,500/- ought to have been taken as the monthly income. The Medical Board certified 7% disability. He had a fracture of shaft of right humerus with radial nerve injury. Even though fracture was treated by open reduction and plate and screw fixation, he has to undergo tendon transfer operation as the radial nerve palsy did not recover. Finally fracture of the humerus was united with leteral angulation. Ext.A2 is the wound certificate issued by a private orthopaedics Surgeon, a retired Professor, showing that the appellant has 25% disability. But that Doctor was not examined. Hence, the M. A. C. A. No.8 of 2003 -3- Tribunal did not accept the same. Tribunal only accepted 7% disability assessed by the Medical Board as per Ext.X1. We see no ground to change the assessment made by the Tribunal based on Ext.X1 Medical Board's certificate. Considering the age of the claimant taking guidelines from the Second Schedule, Tribunal fixed 17 as the multiplier. We see no ground to enhance the same. If that be so, compensation payable will be Rs.35,700/- (Rs.2,500/- x 12 x 7/100 x 17) instead of Rs.25,700/- awarded by the Tribunal. Therefore, he will get Rs.10,000/- (Rs.35,700 - 25,700) more for disability and loss of earning power. The Tribunal has awarded Rs.10,800/- for loss of earnings. The medical certificate shows that he had to undergo a very long treatment. Accident occurred on 04/10/1995. The open reduction and screw M. A. C. A. No.8 of 2003 -4- fixation was done on 16/01/1996. He has to undergo again operation as the radial nerve palsy did not recover and treatment has to continue for about six months. Tribunal has awarded compensation for loss of actual earnings for six months. Since we have increased the monthly income to Rs.2,500/- appellant will be entitled for an additional amount of Rs.4,200/-. Thus, the total additional amount payable will be Rs.14,200/-. It is submitted that compensation granted for pain and suffering and on all other heads are very meagre. Considering the total compensation awarded we are not enhancing the same. The additional amount of Rs.14,200/- should be deposited by the third respondent/ Insurance Company with 7.5% interest from the date of application till the date of deposit over and above the amount decreed by the M. A. C. A. No.8 of 2003 -5- Tribunal. On deposit of the same, the appellant is allowed to withdraw the same. 3. This appeal is thus, allowed in part. J. B. KOSHY JUDGE K.P.BALACHANDRAN, JUDGE kns/-