IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 MACA.No. 1852 of 2007() ----------------------- OPMV.2340/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANT/PETITINER --------------------------------- KOCHUMON VARGHESE @ KOCHUMON, CHENGALAKATTU HOUSE,VILLOONNI.P.O. ARPOOKARA VILLAGE, KOTTAYAM. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S): RESPONDENTS -------------------------- 1. JOSE,PULICKAL HOUSE, PIRAYAR KARA, KIDANGOOR P.O. 2. THE KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. ADV. SRI.K.PRABHAKARAN, SC, K.S.R.T.C. FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON / / , THE COURT ON 15/06/2009 PASSED THE FOLLOWING: K.M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. ```````````````````````````````````````````````````` M.A.C.A. No. 1852 OF 2007 B ```````````````````````````````````````````````````` Dated this the 15th day of June, 2009 J U D G M E N T Joseph, J. Appellant is the claimant. He met with an accident on 10.5.2004. The Tribunal has awarded a total sum of Rs.91,500/-. Aggrieved by the quantum, this appeal is filed. 2. We heard learned counsel for the appellant and learned counsel for the 2nd respondent. Learned counsel for the appellant would point out that the appellant suffered fracture to the tibia and fibula of the right leg. He was taken to the Medical College Hospital, Kottayam from where he was discharged on 17.5.2004. It is further submitted that he was a construction worker and his income is proved by Ext.A12. Ext.A12 is the salary certificate issued by the proprietor of one R.K. Construction dated 22.6.2006. It is produced to show that the appellant is his employee earning Rs.4,500/- per month. In the certificate, it is stated that the appellant has been working as steel bar bender cum concrete worker and was drawing Rs.4,500/- per month and MACA.1852/07 : 2 : that he was on leave from 15.5.2004 to 18.6.2006 due to a road accident occurred on 10.5.2004. Learned counsel for the appellant submits that the income taken as Rs.2,500/- is inadequate. He would further contend that the medical certificate shows the disability as 12% but the Tribunal has erred in taking disability at 7%. He would submit that only Rs.1,000/- is awarded towards transportation expenses and that he had to go to hospital nearly 24 times. Further it is pointed out that only Rs.2,000/- was awarded towards bystander's expenses and having regard to the length of the period he was under treatment the amount is low. He submits that the interest should be awarded at 9%. He relied on the judgment of the Supreme Court in Mohan Singh Vs. Kashi Bai and others [2009 (4) SCC 507]. Learned standing counsel would submit that there is no evidence for higher income. He supports the award. 3. As far as the income is concerned, it is to be noted that the employer was not examined. Therefore, we think that the amount of income arrived at need not be interfered with. Learned counsel for the appellant has produced the medical records and MACA.1852/07 : 3 : submitted that the appellant was disabled to go for work for a period of 9 months. Accordingly, we award Rs.7,500/- more towards loss of earning. We also think that the amount of Rs.1,000/- awarded towards transportation is on the lower side. We award a further sum of Rs.1,000/- more towards under the said head. We feel that the appellant is entitled to a sum of Rs.1,500/- more towards the bystander's expenses. Further question which arises is regarding percentage of disability. No doubt, the appellant has produced the disability certificate issued from Medical College Hospital, Kottayam. Learned standing counsel points out that it is not issued by the Medical Board as such and the doctor was not examined. The appellant is also granted 7% disability. We notice that the amounts awarded towards loss of earning power and loss of amenities in life is Rs.38,000/-. We think that having regard to the nature of the injuries and going by the records produced there is reference to malunited fracture also and deformity. We think that the Tribunal should have awarded appropriate compensation under the head loss of amenities in life. In such circumstances, we award MACA.1852/07 : 4 : Rs.5,000/- towards the loss of amenities in life. We reject the contention based on increase in percentage of disability. It is true that the appellant has relied on the judgment of the apex court to claim 9% interest. Having regard to the state of financial condition of KSRTC we feel that the appellant can be awarded interest at 7.5% from the date of the petition till the date of realisation. Accordingly, the appeal is allowed in part and the appellant is allowed to realise Rs.15,000/- more with interest at 7.5% from the date of the petition till the date of realisation. The amount awarded shall be deposited by the 2nd respondent within six weeks from today. (K.M.JOSEPH, JUDGE) (M.L. JOSEPH FRANCIS, JUDGE) aks