IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 MACA.No. 295 of 2004() ---------------------- OPMV.143/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, N.PARAVUR .................... APPELLANT/CLAIMANT: ------------------------- BINO BERNARD, S/O. BERNARD, AGED 25 YEARS, CHEMMASSERY HOUSE, PUTHENVELIKKARA P.O. BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SMT.SONIYA.M RESPONDENT(S): RESPONDENTS IN THE O.P: -------------------------------------- 1. ALIYAR, S/O. ABDULLA, PARAPRAM HOUSE, THAIKKATUKARA, ALUVA. 2. ABDULKAREEM K.N., KAROTHUKUDY HOUSE, VETTIKUNNU, VENGOLA. 3. THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, T.H. TOWERS, MARKET ROAD, MUVATTUPUZHA. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. ----------------------------------- M.A.C.A. No.295 of 2004 -------------------------------------- Dated this the 28th day of August, 2009 J U D G M E N T ---------------------- Abdul Rehim, J. Claimant before the tribunal is in appeal seeking enhancement of the compensation awarded. The accident occurred on 9.8.2000 when a Lorry hit against the Motor Cycle on which the appellant was travelling as a pillion rider. The appellant sustained lacerated wound over the anterior aspect of right leg with open comminuted subcondylar fracture of right tibia with inter condylar extension. The appellant claimed that he was a mason and the accident occurred when he was at the age of 21 years and he was earning daily income @ Rs.150/-. The Tribunal awarded a total compensation of Rs.1,02,000/-. 2. Heard the learned counsel appearing for the appellant and standing counsel for the 3rd respondent insurance company. The appellant contended that the amount awarded by the Tribunal towards loss of earning by adopting his income at Rs.1500/- is highly unrealistic and too inadequate. It is further contended that the Tribunal had failed to award any amount towards loss of earning power and the amount of Rs.10,000/- MACA.295/04 2 granted towards compensation for disability is highly on the lower side. 3. The standing counsel appearing for the respondent insurance company had vehemently opposed enhancement of the compensation. It is contended that there is lack of proof regarding nature of injuries sustained. It is pointed out that in Ext.A8 Wound Certificate there is no mention about any fracture sustained due to the accident. Ext.A7 Discharge Certificate shows admission of the claimant in the hospital on 11.12.2000 and inpatient treatment till 15.12.2000. Since the accident was on 9.8.2000 the inpatient treatment referred thereto has no correlation with the injuries noted in the Wound certificate, is the contention. But on a close scanning of the award we find that both Exts.A7 and A8 are issued form the very same hospital. Further it is revealed that there is medical records to show that the claimant was undergoing treatment continuously for a long period ever since the accident on 9.8.2000 onwards. It has also come out in evidence that he had undergone bone grafting surgery on 11.9.2000. Therefore the contention raised by the insurance company in this regard does not deserve merit. Further it is pertinent to note that the insurance company has not disputed correctness of Ext.A7 and A8 before the Tribunal MACA.295/04 3 nor they had opposed marking of those documents. No contra evidence is also adduced to disprove the genuineness of Ext.A7 and A8. Hence we are not inclined to accept the contentions of the insurance company in this regard. 4. Considering the quantum of compensation, is noticed that inspite of claim of wages @ Rs.150/- per day, no evidence is adduced apart from 'ipsi dixit' to prove his employment or income. Therefore we are not adopting the income claimed by the appellant for the purpose of computation. However in our moderate estimate the income for the purpose of calculation can reasonably be adopted as Rs.2000/-, and the temporary loss of earning for 6 months need be re-fixed at Rs.12,000/-, instead of Rs.9,000/-. This will entitle the appellant for an enhancement of Rs.3000/-. It is noticed that the Tribunal had awarded only an amount of Rs.10,000/- as compensation for disability. Considering the fact that there was serious injuries sustained to the appellant and there was continued treatment for considerably long period, we are inclined to re-fix compensation for permanent disability and loss of earning power at Rs.20,000/-. We do not think any interference is called for in compensation granted under any other heads. In the result the appellant is entitled for a total enhancement of Rs.13,000/-. MACA.295/04 4 Under the above circumstances the appeal is partly allowed enhancing total compensation of Rs.1,02,000/- awarded by the Tribunal by a further sum of Rs.13,000/- which will carry interest @ 9% per annum from the date of the claim petition till payment. The 3rd respondent insurance company is directed to make payment of the amount within a period of three months. C.N.RAMACHANDRAN NAIR, JUDGE. C.K.ABDUL REHIM, JUDGE. okb