IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 20TH AUGUST 2008 / 29TH SRAVANA 1930 MACA.No. 470 of 2004() --------------------------------- OPMV.1103/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT/CLAIMANT ----------------- VISALAKSHY, W/O. DAMODARA PANICKER, PANNIKUZHI PUTHEN VEEDU, MEENAMKAL P.O., (VIA) ARYANADU, THIRUVANANTHAPURAM. BY ADV. SRI.NAGARAJ NARAYANAN SRI.NAIR AJAY KRISHNAN SRI.SAIJO HASSAN SRI.A.S.SABU RESPONDENTS: RESPONDENTS IN THE OP ------------------------- 1. THE MANAGING DIRECTOR, K.S.R.T.C., TRANSPORT BHAVAN, THIRUVANANTHAPURAM. 2. SREEKUMARAN NAIR @ SURAMANI, CHERIYAKUNCHU VEEDU, VEERANAKAVU, THIRUVANANTHAPURAM. ADV. SRI.K.PRABHAKARAN., SC. KSRTC FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. ------------------------------- M.A.C.A.NO.470 OF 2004 () ----------------------------------- Dated this the 20th day of August, 2008 J U D G M E N T KOSHY,J. Appellant/claimant sustained very serious injuries in a motor accident. She claimed compensation of Rs.3 lakhs. Tribunal awarded only Rs.1,15,500/- as compensation, found that accident occurred due to the negligence of the 2nd respondent, driver of the bus owned by the 1st respondent, and they were directed to deposit the compensation. Only dispute is regarding the quantum of compensation. 2. As a result of the accident, claimant sustained traumatic amputation (R) leg, crush injury (R) lower limb, bone loss, tissue loss, multiple comminuted severally injured. Below knee amputation (R) was done on 22.10.1998. Bone was cut 5 cm below knee and skin flap was taken from the posterior side. Above knee amputation was done on MACA.470/2004 2 19.3.1999. The petitioner was admitted in the Medical College Hospital on 22.10.1998, treated and discharged on 6.11.1998. Thereafter she was treated as inpatient in the Community Health Centre, Vithura from 12.11.1998 to 28.12.1998. Thereafter she was treated in the Medical College Hospital as inpatient from 18.2.1999 to 31.3.1999. Thereafter she was as treated O.P. for several days. 3. For pain and sufferings and taking into consideration the nature of the injuries and long period of treatment, Rs.20,000/- was awarded as compensation. Due to the injuries, the petitioner may not have been able to do any work for a period of six months and on that count, she suffered pecuniary loss. Therefore towards loss of actual earnings, Rs.12,000/- was awarded as compensation. The appellant was treated as inpatient for about 105 days. She incurred bystander's expenses during the period of hospitalisation. Therefore towards bystander's expenses, Rs.3,000/- was awarded as compensation. It was argued that her leg was amputated. Even if only Rs.50/- per day is allowed, for MACA.470/2004 3 150 days, the bystander's expenses will be Rs.7,500/-. She may require assistance throughout her life. The appellant produced Ext.A10, disability certificate issued by Dr.K.Shamsuddin of Medical College Hospital, Thiruvananthapuram. In that, the permanent disability of the petitioner is assessed as 40%. Tribunal accepted 40% disability and calculated compensation for the same. It is submitted that the loss of earing capacity was not looked into by the Tribunal on a practical angle. According to the appellant, she was a vegetable vendor and was earning Rs.3,000/- per month. In the absence of any evidence, Tribunal assessed the monthly income as Rs.2,000/-. We see no ground to interfere with the same. Since she was aged 65, Tribunal took '5' as the multiplier. We are of the view that no change is required in the multiplier fixed by the Tribunal. It is submitted that the appellant was doing vegetable business by visiting house to house and since she lost her leg above knee, she is unable to do any work, her loss of earning capacity is almost 100% and she has to live with the disability till the end of her life and that even now she is living with the disability. MACA.470/2004 4 Even though the incident occurred ten years ago, her earning power is completely lost. Counsel for the appellant also referred to Workmen's Compensation Schedule wherein for loss of amputation of leg, loss of earning capacity is fixed as 80% (Part II Item No.17 of Schedule I). The percentage of disability and percentage of loss of earning capacity has to be considered together. But percentage of loss of earning capacity is not always equal to percentage of physical disability. Appellant cannot do vegetable business by going from house to house. For getting an artificial leg also, huge amount is required and no amount was granted for purchasing artificial leg. We also note that because of the amputation of the leg, for doing her day-to-day activities, help is required. She was under inpatient treatment for 105 days and only Rs.3,000/- was awarded for bystander's expenses. Considering all these aspects, we award another Rs.50,000/- more for loss of earning capacity due to amputation above knee as well as for bystander's expenses, together. The above amount should be deposited by the 1st respondent with 7.5% interest from the date of application till its deposit, over and MACA.470/2004 5 above the amount decreed by the Tribunal and on deposit of the amount, the appellant is allowed to withdraw the same. Appeal is accordingly partly allowed. J.B.KOSHY, JUDGE THOMAS P. JOSEPH, 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