IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 MACA.No. 409 of 2005() --------------------------------- (AGAINST THE AWARD DATED 24.9.2004 IN OPMV.675/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR) .................... APPELLANT(S):/PETITIONER: ----------------------------------------- JODANIEL S/O. DANIEL, EBANEZOR HOUSE, POCHEMKONAM, EZHUKONE P.O., KOTTARAKKARA. BY ADV. SRI.B.RADHAKRISHNA PILLAI SMT.S.AMBIKA DEVI SMT.BABY JOSE SRI.C.V.MANUVILSAN SRI.R.JYOTHIKRISHNAN SRI.G.SUDHEER (THURAVOOR) RESPONDENT(S): RESPONDENTS: ------------------------------------------------- 1. DEEPA VINAYAN W/O. VINAYAN PARAMBIL VADEKKATHIL VEEDU, KATTATHY KOKKATHODU PO KONNY. 2. SURESH J., SURESH BHAVAN, KOKKATHODU P.O., KONNY. 3. NATIONAL INSURANCE CO.LTD., PATHANAMTHITTA BRANCH OFFICE KALUMKATHARA BUILDING, REPRESENTED BY THE MANAGER, KOLLAM. R3 BY ADV. SRI.E.M.JOSEPH. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ M.A.C.A.No.409 of 2005-B ---------------------------------------------- Dated, this the 30th day of June, 2009 J U D G M E N T K.M.Joseph, J. The appellant is the petitioner in a petition filed under Section 166 of the Motor Vehicles Act. The Tribunal has awarded a total sum of Rs.65,017/-. This is against his claim for Rs.5 lakhs. This appeal is directed against the quantum. 2. We heard the learned counsel for the appellant and also the learned counsel for the Insurance Company. 3. Learned counsel for the appellant would point out that having regard to the percentage of disability certified in A14 the Tribunal has erred in fixing the percentage of disability at 6 as against 16 certified therein. Further, it is pointed out that the income of the appellant was fixed at Rs.1,500/- when there was evidence indicating that the appellant was receiving Rs.4,500/- per month. The appellant relied on A18 service certificate. It is contended that the appellant should have been awarded compensation for loss of MACA 409/2005 -2- earning for four months instead of awarding for three months. Fourthly, it is pointed out that no amount is awarded towards loss of amenity. It is also pointed out that the appellant was a unmarried young man. Fifthly, it is contended that compensation has not been granted in keeping with the medical bills produced by the appellant. Sixthly, it is contended that the Tribunal should have also granted compensation towards partial loss of earning. It is next contended that the compensation granted in a sum of Rs.3,000/- transport charges is inadequate as grant of further sum is warranted by the terms of way bills produced. It is contended that an amount Rs.1,500/- alone was granted towards by-stander expenses. 4. Learned counsel appearing for the Insurance Company supported the award. 5. Having heard the learned counsel appearing for the parties and having perused the order and the documents produced, we are of the view that the appellant is entitled to enhanced compensation. This is a case where certificate is issued by the doctor. The doctor has certified interalia that MACA 409/2005 -3- the fracture has united with excessive callus, the right leg is shortened by one and a half centimeter and there is two centimeter of wasting of right calf, stiffness of right ankle with loss of terminal 10% of dorsiflexion and 20 % of plantar flexion, he is unable to squat normally and is unable to run and to lift weights. The doctor has assessed permanent disability at 16% as per the Mc Bride's scale. No doubt, the Tribunal has taken the percentage of disability at 6% essentially for the reason that the doctor was not examined. Having regard also to the nature of injuries which included compound comminutted fracture of the both bones of right leg we would be justified in enhancing the percentage of disability to 10%. We feel that the Tribunal erred in fixing the income at Rs.1,500/-. The accident took place in 2002. It may be true that the employer was not examined. But, having regard to the year of the accident and the nature of work, we think that we can safely fix the income at Rs.2,000/- per month. Consequently, we find that after providing for the amount already awarded the appellant would be entitled to Rs.22,440/-. The appellant was treated for 26 days and MACA 409/2005 -4- having regard to the nature of injuries we feel that the Tribunal should have granted Rs.10,000/- towards pain and suffering. Accordingly, we award Rs.6,000/- more towards pain and suffering. The appellant would be entitled to Rs.1,500/- more for three months towards loss of earning. Learned counsel for the appellant would point out that the appellant was disabled for four months completely. This is sought to be proved by A14 certificate. Thus, we award Rs.3,500/- more under the head loss of earning. We are not inclined to grant any amount towards partial loss of earning as we feel that it is essentially included in the award of compensation towards disability. In view of the nature of the injuries we feel that the Tribunal ought to have awarded compensation towards loss of amenity. We find that the appellant is entitled to Rs.7,000/- toward loss of amenity. Appellant submits that though medical bills amounting to more than Rs.40,000/- were produced but only Rs.32,357/- has been awarded. Learned counsel for the Insurance Company points out that it is for the reason that some of the medical bills were not signed by the doctor. We feel that we MACA 409/2005 -5- can safely award Rs.2,000/- more towards medical bills. We are not inclined to grant more amount towards transport charges since the appellant was already awarded Rs.3,000/- under this head. Accordingly, the appeal is partly allowed and the appellant is entitled to realise Rs.41,000/- (rounded figure) with interest at 7.5 percentage from the date of the petition till realisation from the third respondent. The amount already awarded will bear interest at 7.5 percent from the date of the petition till date of realisation. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS