IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 MACA.No. 942 of 2006() ---------------------- OPMV.3512/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): PETITIONER: ----------------------------------- KUTTAPPAN, S/O. PONJAN, CHIRAKKAL HOUSE, AANIKKADU, AVOLY P.O., (VIA) MUVATTUPUZHA. BY ADV. SRI.VIVEK VARGHESE P.J. RESPONDENT(S): RESPONDENTS IN OP(MV): ------------------------------------- 1. MR.SIBI JOSEPH, S/O. JOSEPH, ATTUPURATH HOUSE, VAZHITHALA, THODUPUZHA. 2. MR.SUNIKUMAR, KUNNEL PUTHENPURAYIL HOUSE, KAPPU KARA, MANJALLOOR VILLAGE. 3. THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, COCHIN-35. ADV. SRI.S.MAMMU FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.A.C.A.No.942 of 2006 -------------------------------------- Dated this the 4th day of December, 2008. JUDGMENT Thomas P.Joseph, J. Grievance of the appellant is that compensation awarded to him is low. He sustained injuries on 24.12.1997 when the motor cycle which the second respondent was riding allegedly in a rash and negligent manner, hit him. Tribunal found that the accident occurred as alleged by the appellant and awarded compensation of Rs.43,750/- to be realised from the respondents with interest at the rate of 7.5% per annum from the date of application till realisation. 2. Heard counsel for the appellant and contesting respondent. 3. Point for decision is whether appellant is entitled to get enhanced compensation. 4. The Point. Tribunal fixed the monthly income of the appellant at Rs.1,500/-. It is contended that it is low. Considering the age and occupation of the appellant and also taking into account the fact that even unskilled labourers in Kerala used to get more than Rs.100/- per day during the relevant time, we are inclined to MACA No.942/2006 2 think that Tribunal ought to have fixed monthly income of the appellant at Rs.2,500/- taking that he would have earned atleast Rs.100/- per day for 25 days in a month. 5. As revealed by Ext.A5, wound certificate issued from the Government Hospital, Muvattupuzha appellant suffered the following injuries:- “1. Multiple abrasions over (L) shoulder swollen and tender. 2. Abrasions over aspect of (L) elbow (L) side of abdomen, (L) chest and (L) knee. X-ray shoulder - fracture neck of humerus (L) with gross displacement.” Appellant underwent inpatient treatment at Government Hospitals. He was treated with open reduction and internal fixation. According to the counsel, compensation awarded to the appellant is meagre. 6. Tribunal awarded compensation for loss of earnings for a period of three months at the rate of Rs.1,500/- per month. While considering the claim of the appellant regarding monthly income, we found that it should be fixed as MACA No.942/2006 3 Rs.2,500/-. He is entitled to get compensation for loss of earnings at that rate for three months which comes to Rs.7,500/- as against Rs.4,500/- awarded by the Tribunal. Additional compensation payable on that count is Rs.3,000/-. 7. Though it is contended by the learned counsel that fracture has resulted in disability and consequent loss of earning power, no evidence in that line was adduced. We cannot presume that the appellant is affected by any disability on account of fracture . At the same time, since due to the fracture of neck of left humerus and the appellant was treated with internal fixation, it is possible that there is some weakness on account of the fracture even if it is assumed that the fracture has united, that weakness is likely to cause discomfort and inconvenience to the appellant. Taking these aspects into account, we are inclined to award Rs.5,000/- as compensation for such weakness and discomfort. Though Tribunal awarded Rs.500/- for transportation charges, we are inclined to award Rs.500/- more for transportation charges considering the number of appellant's visit to the hospitals. Appellant is entitled to get Rs.500/- as additional compensation for transportation charges. 8. Though counsel requested us to interfere with the compensation awarded on other counts as well, on giving an anxious consideration of that request and considering the amount awarded on those counts and also considering all relevant factors, we are not persuaded to accept that request as we are satisfied that compensation awarded on other counts are just and fair. MACA No.942/2006 4 Thus, the additional compensation payable to the appellant is Rs.8,500/-. Appellant will get interest at the rate of 7.5% per annum from the date of application till realization. Resultantly, this appeal is allowed in part. Over and above the compensation awarded by the Tribunal, appellant is allowed to realize a further sum of Rs.8,500/- (Rupees Eight thousand and Five hundred only) with 7.5% interest per annum from the date of application till realization from respondents 1 to 3, jointly and severally. Third respondent being the insurer of the vehicle is directed to deposit the said amount in the Tribunal. On such deposit, appellant is permitted to withdraw the same. J.B.KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. cks