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 18TH JULY 2008 / 27TH ASHADHA 1930 MACA.No. 2142 of 2005(D) ------------------------------------- O.P.M.V.1331/1996 OF IST ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE. .................... APPELLANT/PETITIONER: ------------------------------------- RAJI THOMAS, S/O.THOMAS, AGED 49 YEARS, KONDOOPARAMBIL HOUSE, A6, GIRINAGAR COLONY, VENGERI, KOZHIKODE. BY ADV. SRI.GEORGE KURUVILLA (ALAPPUZHA). RESPONDENTS/ RESPONDENTS: ------------------------------------------------ 1. E.C.MUHAMMED IQBAL, S/O.E.C.CHERIYAMMED HAJI, ELAVANCHAL HOUSE, KODUVALLI, KOZHIKODE. 2. THOTTUNKARA BASHEER, S/O.AHAMMED KUTTY, NADAMAL POYIL, PUTHUR AMSOM, KODIYATHUR DESOM, KOZHIKODE TALUK. 3. M/S.NEW INDIA ASSURANCE COMPANY LTD., TRIPURI BUILDINGS, EAST NADAKKAVU, KOZHIKODE-673 011. ADV. SRI.JOY GEORGE FOR R3. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- M.A.C.A.No.2142 OF 2005 ------------------------------------- Dated 18th July, 2008 JUDGMENT Koshy,J . The appellant/claimant sustained injuries in a motor accident. While he was driving a Maruti Van, a bus hit the same. The Tribunal found that the accident occurred due to the negligence of the driver of the bus insured by the third respondent insurance company. Against a claim of Rs.3,00,000/=, the total amount of compensation awarded by the Tribunal was only Rs.57,514/=. The monthly income of the claimant was not assessed by the Tribunal. According to the claimant, he was a planter by profession. The accident occurred while he was proceeding to cardamom plantation at Puthuppadi. According to him, he was getting Rs.3,000/= per month from the plantation. No data was produced regarding the income received by him. But, he was owning a Maruthi Van and he was having driving licence. He was maintaining a family. He was having cardamom plantation. The accident occurred in 1995. Taking into account all these circumstances, we take Rs.2,500/= as the monthly income. He was aged 39 at the time of the accident. As per the second schedule, if the age of the accident victim is between 30 and 40, the apt multiplier is 16. A three member bench of the Hon'ble Supreme Court in MFA.2142/2005 2 Smt.Supe Dei and others v. M/s.National Insurance Company Ltd. and another (JT 2002 (Suppl.1) SC 451) and recently in A.P.S.R.T.C. v. M. Pentaiah Chary (2007 AIR SCW 5689) held that second schedule can be taken for guidance for calculating compensation even in claims under section 166 of the Motor Vehicles Act also. Therefore, 16 can be taken as the multiplier. With regard to the disability, Ext.A3 is the accident register-cum-wound certificate issued from the Medical College Hospital, Calicut. Ext.A5 is the C.T. Report issued from the Medical College Hospital. Exts.A6 and A9 are also medical certificates. Ext.A8 is the reference card issued from the Medical College Hospital and Ext.X1 is the treatment records from Medical College Hospital. As per Ext.A11 the claimant has difficulty in opening the mouth and chewing. The medical certificates would show that he had fracture of nasal bone both sides, fracture anterior wall of left antrum, fracture of lateral orbital bony wall (left) and fracture with slight depression of fronto-ethmoid complex resulting in stacked bone appearance noted with some extracranial soft tissue swelling in the anterior frontal areas and some subcutaneous soft tissue swelling anterior to both antra, both eyes and in the anterior nasal region. As per Ext.A5 he had multiple fractures also. After seeing the claimant, the Tribunal also found that even at the time of MFA.2142/2005 3 examination before the court, he has disability and he was not fully recovered. Ext.A4 certificate shows that he had 5% disability due to fracture of patella. As far as the patella fracture is concerned, even if united, it will cause life time disturbances. Considering these facts, the Tribunal ought to have fixed compensation for 5% disability. If that be so, compensation payable for permanent disability and loss of earning capacity will be Rs.24,000/= (2,500 x 12 x 5 x 100 16). Tribunal has granted Rs.6,000/= towards the permanent disability. So, the claimant will be entitled to an additional amount of Rs.18,000/= for disability and loss of earning power. Due to the patella fracture and other fractures, he was immobilized for three months. The Tribunal has granted Rs.6,000/= towards loss of actual earnings. Since we have assessed monthly income as Rs.2,500/=, he is entitled to an additional amount of Rs.1,500/= on this count. He was hospitalized for 22 days. He had severe facial injuries also. The doctor has certified that he was unable to chew anything for four weeks and he had difficulty in opening the mouth. We are of the opinion that Rs.2,500/= ought to have been awarded for loss of amenities. So, the additional compensation payable will be Rs.22,000/=. The above additional amount of Rs.22,000/= should be deposited by the third respondent insurance company with 7.5% MFA.2142/2005 4 interest from the date of application till its deposit, over and above the amount decreed by the Tribunal. On deposit of the amount, the appellant is allowed to withdraw the same. The appeal is partly allowed. J.B.KOSHY JUDGE P.N.RAVINDRAN JUDGE tks