IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 8TH AUGUST 2008 / 17TH SRAVANA 1930 MACA.No. 1152 of 2004() ----------------------- OPMV.1321/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER: -------------------------------------- SURESH PATTANI, S/O. ZACHARIAS, PATTANIYIL, KADAPLAMATTOM P.O., KOTTAYAM. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENTS/RESPONDENTS: ------------------------- 1. V.IBRAHIMKUTTY, S/O. V.C.MOIDEEN, VILLON HOUSE, PARASSIMOOCHIKKAL CHAPPANASALI, MALAPPURAM. 2. UNITED INDIA INSURANCE CO. LTD., MALAPPURAM BRANCH. 3. JOSEKUTTY ABRAHAM, S/O. ABRAHAM, MANNARATHU HOUSE, VELLIKULAM, TEEKOY. 4. V.J.SEBASTIAN, VADAKKAL HOUSE, MANARCADU. BY ADV. SRI.P.R.RAMACHANDRA MENON FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J.B.KOSHY & K.P.BALACHANDRAN, JJ. ------------------------------- M.A.C.A.NO.1152 OF 2004 (G) ----------------------------------- Dated this the 8th day of August, 2008 J U D G M E N T KOSHY,J. Appellant/claimant, while riding a motor cycle was knocked down by a jeep bearing Registration No.KL 10A/4896 driven by the 3rd respondent and the above jeep was owned by the 4th respondent and insured by the 2nd respondent Insurance company. He claimed a compensation of Rs.10,62,750/- including reimbursement of actual medical expenses incurred. Total compensation granted by the tribunal was only Rs.4,35,150/-. Only dispute is regarding the quantum of compensation. Hence we are only considering that question. 2. As a result of the accident, he sustained very serious injuries. The tribunal found as follows: MACA.1152/04 2 “As per the copy of the wound certificate produced as Ext.A4. The petitioner had fracture shaft of femur, right lower 3rd compounding through a lacerated wound 6 cm x 3 cm over the front of thigh (2) fracture of lower 3rd of right tibia compounding through lacerated wound (3) fracture of lower third of right fibula compounding through a lacerated wound over the outer side of right leg (4) lacerated wound 6 x 3 cm over the front of ankle and ankle joint is dislocated (5) lacerated wound over the inner side of foot right and base of ankle right with avulsion of the heel flap (7) posterior tibia artery cut (7) vascularity of right foot doubtful fracture of the middle third of humerus right compounding through a lacerated wound over lateral side of upper arm (8) Comminuted fracture lower end of right radius with dislocation of the head of ulna (9) Multiple contusions and abrasions all over body. He was treated at the Medical College Hospital as I.P. on six occasions and Exts.A6 to A12 are the discharge cards for such treatment.” Thereafter also he was treated several times. He was finally treated in the R.V.Clinic, Palakkad. Ext.A30 treatment and disability certificate reads as follows: “This is to certify that Mr.Suresh Pattani, MACA.1152/04 3 Pattani (H), Kadapplamattom, Kottayam, was treated at Kottayam with history of alleged R.T.A. from 26.3.1996 onwards for following injuries: 1. Type I open fracture (R) humerus 2. Fracture lower end of radius (R) wrist with inferior radio ulnar dislocation. 3. Type III open fracture (R) femur 4. Type II open fracture tibia/fibula (R) leg middle 3rd shaft 5. Closed fracture shaft of (L) femur 6. Posterior dislocation (R) elbow with radial head fracture 7. Radial nerve palsy (R) upper limb 8. Head flap avulsion (R) foot He was treated at Kottayam by external fixator application (R) lower limb and (R) humerus. Open reduction 'K' nailing done for (L) femur. Open reduction and fixation done for (R) elbow dislocation and head of (R) radius excised. Open reduction and 'K' wire fixation done for (R) wrist. Later external fixators were removed and hip spica cast put on (R) lower limb, 'U' slab for (R) humerus, skin grafting (R) foot and ankle was done. He came here in R.V.Clinic, Palakkad on 10.10.1999 with severe equinovarus deformity of (R) foot; unhealthy skin on the MACA.1152/04 4 (R) heel, malunited (R) femoral fracture, malunited (L) femoral fracture with implant in situ, post traumatic stiffness and deformity of (R) elbow and post traumatic urethral stenosis. Admitted on 11.11.1999 and underwent Ilizarow surgery under spinal anaesthesia for correction of Rt foot and ankle deformity on 14.11.1999; and discharged on 22.11.1999. Readmitted on 17.2.2000 and underwent implant removal from (L) femur, correction of clawing of toes of (R) foot, heel flap transposition and skin grafting on 18.2.2000 and discharged on 2.3.2000. Again admitted on 3.4.2000, SSG under local anesthesia was done on 3.4.2000. On 13.4.2000, he underwent urethroscopy and dilatation of urethra and implant removal of (R) foot under spinal anesthesia, discharged on 19.4.2000. Readmitted on 25.6.2001 and underwent second stage rotation plasty of (R) heel flap on 27.6.2001. Discharged on 8.7.2001. Admitted on 30.9.2001 and underwent lengthening and deformity correction of (R) femur using Ilizarov ring fixator on 3.10.2001. Discharged on 15.10.2001. Admitted on 15.1.2002, underwent excision of posterior bone block of (R) elbow and (R) femoral frame removal discharged on 19.1.2002. He has improved well. His disability was MACA.1152/04 5 assessed on 25.4.2002 and was found to be about 70% of (R) lower limb and 48% of (R) upper limb.” He was referred to the Medical Board. The Medical Board certified that there is 38% disability. According to the claimants, he has got 100% loss of earning capacity. He was employed as an Inspector in Peerless General Finance and Investment Company and he was getting more than Rs.5,000/- per month and his employment was lost. He was bed ridden for about six years. He was under inpatient treatment in various hospitals, and therefore, his employment is lost and he is entitled to compensation for 100% loss of earning capacity. But tribunal assessed compensation on the basis of the physical disability. Considering the medical certificate issued by the Medical Board, we are not enhancing the percentage of disability. He has produced Ext.A34 certificates to show that he was getting commission of Rs.63,602/- in 1995. Though he was getting more than Rs.5,000/- as monthly income, certificates will show that apart from the income, his commission may differ from month to month. According to MACA.1152/04 6 the petitioner, it will be on the income he was getting every year and his income will not go below Rs.60,000/- in any year. Tribunal only fixed Rs.2,500/- as the monthly income. It is the case of the petitioner that his earnings and commission will increase and he will also get promotion and future prospects also should be taken into account. Considering Ext.A34 certificates and the nature of work he was doing, we fix Rs.4,000/- as the monthly income. He was aged 27 years old and Tribunal has taken 17 as the multiplier. It is contended that he was aged 27 and a higher multiplier should be taken and going by the 2nd schedule, 18 is the apt multiplier. But 2nd schedule is taken only as a guideline and we are not changing the multiplier of 17 fixed by the tribunal. If that be so, compensation payable will be Rs.4,000 x 12 x 17 x 38/100 = Rs.3,10,080/-. Tribunal has awarded only Rs.1,93,800/-. Hence, additional amount payable will be Rs.1,16,280/-. Another Rs.50,000/- was also granted for loss of earning power. So, that is to be deducted. Hence, balance compensation payable for loss of earning power and disability will be Rs.66,280/-. Claimant was bed ridden for 350 days. MACA.1152/04 7 The initial period of treatment was only for 250 days. Tribunal has taken that only for calculating actual loss of earning power for the treatment period. Tribunal has found as follows: “The nature of injuries as disclosed by the various medical records show that the petitioner had very serious injuries and had a prolonged course of treatment at the Medical College Hospital for nearly 2 1 / 2 years.” For loss of actual earnings, only Rs.21,000/- was granted. We are of the view that atleast one years' income should be allowed for actual loss of earnings. If that be so, during the period he was completely laid up, he will be entitled to Rs.48,000/- for actual loss of earnings taking Rs.4,000/- as the monthly income. After deducting the amount of Rs.21,000/- actually granted for loss of earnings, he will be entitled to Rs.27,000/- more for loss of earnings. Tribunal disallowed various medical bills and the original bills from R.V.Clinic, Palakkad, amounting to Rs.97,132/- was rejected for no valid reasons. We are of the view that an amount of Rs.12,000/- MACA.1152/04 8 should be granted for additional medical bills. Hence, additional compensation payable will be Rs.1,05,280/-. The above amount of Rs.1,05,280/- should be deposited by the 2nd respondent Insurance company with 7.5% interest from the date of application till its deposit over and above the decreed amount by the tribunal. On deposit of the above amount, appellant is allowed to withdraw the same. Appeal is accordingly partly allowed. J.B.KOSHY, JUDGE K.P.BALACHANDRAN, JUDGE prp J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 4th August, 2008