IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 MACA.No. 809 of 2007 F ------------------------------------------- OPMV.1048/2002 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S):PETITIONER --------------------------------------- MATHAI PAILY, S/O.PAILY, PARAYIL HOUSE, KARIMUGAL NOW RESIDING AT PUTHIYAMADOM HOUSE, VILANGU P.O., KUNNATHUNADU TALUK. BY ADV. SRI.T.K.KOSHY SRI.T.V.ELDHO RESPONDENT(S): RESPONDENTS 2 AND 3 ------------------------------------------------------------ 1. ROY SEBASTINE, S/O.SEBASTINE, KARIMBANIYIL HOUSE, KODIKULAM P.O., THODUPUZHA. 2. ORIENTAL INSURANCE CO.LTD., P.B.NO.50, CHURCH VIEW JUCTION, KOTHAMANGALAM- 686 691. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R2 SRI.P.JACOB MATHEW FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ------------------------------------------ M.A.C.A. NO. 809 OF 2007 F ------------------------------------------ Dated this the 3rd July, 2009 JUDGMENT K.M. Joseph, J. Appellant is the claimant in a petition filed under Section 166 of the Motor Vehicles Act. The appellant is awarded a total sum of Rs.97,900/= by the tribunal. The break up is as follows: “Loss of earning 8,000/= Transportation charges 1,000/= Extra nourishment 1,000/= Nursing and attendant charges 2,000/= Damage to clothings 250/= Medical expenses 39,500/= Pain and suffering 15,000/= Loss of amenities 8,000/= Compensation for disability 21,120/= Compensation for disfiguration 2,000/= ----------------- Total: 97,870/= ========== 2. We heard the learned counsel for the appellant and also the learned senior counsel appearing on behalf of the second M.A.C.A.NO.809/07 2 respondent, Insurance Company. 3. Learned counsel for the appellant would firstly submit that the income should not have been fixed at merely Rs.2,000/=. The accident took place in the year 2001. Secondly, he would contend that going by the records, the appellant ought to have been awarded compensation towards loss of earning for six months instead of four months. Thirdly, he would contend that the compensation for disability has been calculated on the basis that the appellant has disability only for 8 per cent. This is a case where, he points out, the Doctor has certified the disability at 20 per cent. What is more, he points out, that the Doctor was examined and he has also given evidence. He also submits that the amount awarded towards loss of amenities is only Rs.8,000/=. He also submits that under Ext.A8, the appellant was entitled to Rs.2,600/= towards transport charges, but the appellant is awarded only Rs.1,000/=. M.A.C.A.NO.809/07 3 He finally submits that interest is awarded only at 7 per cent. He submits that 9 per cent should be granted. 4. Learned senior counsel for the second respondent Insurance Company would submit that the compensation is just. In fact, he points out that in its discussion, the tribunal speaks about awarding Rs.10,000/= towards pain and suffering, but Rs.15,000/= was awarded. Secondly, he points out that the reasoning of the tribunal in reducing the per centage of disability from 20 per cent to 8 per cent is to be justified. This is because, he points out, that as the Doctor who was examined has opined that the fracture is united and the main argument was that the appellant was having Ostecarthritis. He supports the finding of the tribunal that Ostecarthritis has an age based etiology and the appellant was 53 years of age at the time of the accident. 5. This is a case where the Medical Board consisted of three Doctors have certified that the appellant's permanent orthopaedic disability with respect to his whole body is assessed M.A.C.A.NO.809/07 4 at 20 per cent as per MC brides scale. We also notice that one of the Doctors has been examined also. No doubt, there is reason given for not awarding at the rate of 20 per cent. We cannot also ignore the fact that the appellant's vocation appears to be that of a worker. We notice the complaints mentioned in the disability certificate which are as follows: “1. Open ankle injury (L) with loss of soft tissue. 2. # talus (L) 3. # inferior pole of patella. 4. Patellar tender injury both ends of (L). 5. Lacerated wound (R) patella with soft tissue loss. He was treated surgically. Now he complaints of: 1. Can't do any work due to weakness of legs. 2. Can't squat and climb stairs. 3. Can't bend (L) ankle. 4. Pain and swelling both knee and (L) ankle while walking or climbing. On Examination: - He walks with a short step. M.A.C.A.NO.809/07 5 - Ugly scar (L) ankle dorsum with contracture. - Ankle movements - No extension. flexion only 5 degree and painful. - (L) Knee flexion 90 degree only and extension 160 degree. (R) Knee flexion 100 degree and extension 160 degrees only. - Knee movements painful. -(x) Crepitus on (L) knee movements. X-ray (L) knee - #patella united. ends of IF arthritis and osteoarthritis of (L) knee. X-ray (L) ankle - subtalar arthritis.” Based on the above findings his permanent orthopaedic disability with respect to his whole body is assessed to be 20% (Twenty) as per Mcbrides scale.” 6. In such circumstances, we feel that the per centage of disability assessed by the tribunal is on the lower side and we fix the disability at 12 per cent. On the said basis, the appellant would be entitled to Rs.10,580/= more as compensation for M.A.C.A.NO.809/07 6 disability. Still further, we feel that the appellant has to be awarded the amount sought for under Ext.A8 towards transportation and thus we award Rs.1,600/= more under the said head. Having regard to the nature of the after-effect of the injuries which we have already noted, we feel that we should award Rs.2,000/= more towards loss of amenities. Thus, the appellant will be entitled to Rs.14,180/= which is rounded off to Rs.14,000/=. As far as the claim of the appellant regarding loss of earning for six months, we do not see any reason to enhance the claim for loss of earning. We also note that there was absolutely no evidence warranting any increase in the income of Rs.2,000/=. Appellant is entitled to interest at 7.5 per cent instead of 7 per cent on the amount awarded as also on the enhanced compensation. In such circumstances, the Appeal is allowed in part and the appellant is allowed to realise an amount of Rs.14,000/= with interest at 7.5 per cent from the date of the petition till the date of realisation fom the second respondent. M.A.C.A.NO.809/07 7 The appellant is also entitled to 7.5 per cent interest on the amount already awarded, instead of 7 per cent, from the date of the petition till the date of realisation. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge