IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 MACA.No. 248 of 2007() ---------------------- AGAINST THE ORDER DATED 08/03/2006 IN OPMV.516/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER ----------------------------------- TOM THOMAS, S/O. THOMAS, RESIDING AT CHIRAVELEL HOUSE, MEMURY P.O., KOTTAYAM. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.SUNIL J.CHAKKALACKAL RESPONDENT(S): RESPONDENTS --------------------------- 1. JOY JOSEPH, RESIDING AT THARAYIL HOUSE, PADINJATTIN KARA, MUTHOLI, PALA. 2. VIPIN, S/O. RAJAN, RESIDING AT THEKKEMADATHIL HOUSE, SURYAKALADYMANA BHAGOM, PERUMBAIKADU, NATTASSERY. 3. THE NEW INDIA ASSURANCE COMPANY LIMITED, KOTTAYAM. ADV. SRI.P.C.HARIDAS FOR R1 ADV. SMT.P.K.SANTHAMMA FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No. 248 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of August, 2009 JUDGMENT Joseph, J. The appellant is the petitioner in the claim petition filed under Section 166 of the Motor Vehicles Act. He has been awarded a sum of Rs.1,51,370/- as against the claim of Rs.4,18,000/- 2. Heard the learned counsel for the parties. 3. The learned counsel for the appellant would firstly contend that the appellant was an Engineering Graduate, aged 22 years at the time of the accident, which took place in 2002. The evidence shows that the appellant was receiving Rs.7,000/- as monthly salary. The Tribunal has taken the income of the appellant as Rs.3,000/- only. M.A.C.A.No. 248 of 2007 2 4. Secondly it is contended that there is evidence to show that the appellant had incurred Rs.7,500/- towards bystander's expenses. But the Tribunal has awarded only Rs.5,000/- under hat head. Thirdly it is contended that the Tribunal should have awarded loss of earnings for one year. But the Tribunal has granted loss of earnings for five months only. Fourthly it is contended that the disability of the appellant was calculated at 12%. This was certified by a doctor, vide Ext.A10 certificate. But the Tribunal has taken the disability only at 5%. Lastly, it is contended that the interest awarded is only at 6%. 5. The learned counsel for the Insurance Company supported the award. 6. The appellant was a Graduate in Mechanical Engineering. He has produced Ext.A14 salary certificate to show that he was employed. According to the Tribunal, no doubt, the person who issued the certificate was not examined. The M.A.C.A.No. 248 of 2007 3 appellant has given evidence. Having regard to the qualification of the appellant, we feel that the income can be fixed at Rs.3,500/- 7. The next question to be considered is the extent of disability. There are reasons given by the Tribunal to fix the disability at 5% instead of 12%, as certified. It is stated that the doctor, who issued the certificate, was not examined. The argument of the Insurance Company is that the calculation was not as per the mecbrides scale. The learned counsel for the appellant submitted that the certificate would show that the calculation was done as per the mecbrides scale. Going by the injuries, we feel that we can fix the percentage of disability at 8%. 8. On this basis, the appellant would be entitled to a further sum of Rs.29,880/-, after deducting the amount already awarded. On the basis of the enhanced income we have taken, the appellant would be entitled to Rs.2,500/- more for five months towards loss of earnings. The appellant relies on the receipt for Rs.7,500/- M.A.C.A.No. 248 of 2007 4 issued towards bystander expense. We feel that the appellant can be granted Rs.2,500/- more under the above head. 9. We feel that we can award an amount of Rs.3,500/- more for one month towards loss of earnings. Accordingly, the appellant is entitled to Rs.38,380/- more. We also accept the case of the appellant that interest should have been awarded at 7.5% instead of 6%. 10. Accordingly this appeal is allowed in part. The appellant is entitled to realise an amount of Rs.38,380/- more with interest at the rate of 7.5% from the date of the petition till the date of realisation from the respondents. The amount already awarded will also bear interest at the rate of 7.5%. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm