IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 MFA.No. 272 of 2000(B) ---------------------- OPMV.2849/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): ---------------------- MUHAMMADALI, S/o.SAIDU MUHAMMED, PARACKAL HOUSE, CHOOLAKKAPARAMBU, POWER HOUSE ROAD, ERNAKULAM, COCHIN – 18. BY ADV. SRI.P.K.MEETHIYAN KUNJU SRI.K.R.SACHIDANANDAN RESPONDENT(S): ------------------------ 1. P.P.VARGHESE, PADAYATTIL HOUSE, ANGAMALY WEST. 2. VARGHESE, S/o. LONAPPAN, MALIYECKAL HOUSE, PEECHANIKAD-ANGAMALY. 3. THE ORIENTAL INSURANCE CO. LTD., KALLOOKARAN SHOPPING COMPLEX, ANGAMALY. ADV. SRI.P.V.JYOTHI PRASAD, SC FOR R3 SRI.JOSE THETTAYIL FOR R1 SMTK.P.SREELATHA THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt K.M.JOSEPH & M.C.HARI RANI, JJ. ----------------------------------------------- M.F.A. No.272 of 2000 ------------------------------ Dated this the 2nd day of November 2010 J U D G M E N T K.M.Joseph, J. The appellant is the claimant in O.P.(MV)No.2849/94 of the Motor Accidents Claims Tribunal, Perumbavoor. The appellant sustained injuries and he claimed Rs.2,500/- as his monthly income. He claimed Rs.3,000/- towards transportation charges. Towards medical expenses, he claimed Rs.30,000/-. For pain and suffering, the appellant claimed Rs.50,000/-. Towards inconvenience and disfigurement he claimed Rs.1,50,000/-. Towards disability he claimed Rs.2,00,000/-. For loss of earning capacity he claimed Rs.3,00,000/-. 2. The Tribunal has taken the income of the M.F.A. No.272 of 2000 -: 2 :- appellant at Rs.1,500/-. He was awarded Rs.500/- towards transportation charges. On the basis of medical bills Rs.22,800/- was awarded towards medical expenses. He was awarded Rs.300/- towards extra nourishment as against the claim for Rs.1,000/-. He was awarded Rs.100/- towards damage to clothings. Though appellant has claimed Rs.50,000/- towards pain and suffering, the Tribunal awarded Rs.10,000/- towards this count. He was awarded Rs.5,000/- towards inconvenience and disfigurement and towards disability and loss of earning capacity he was awarded Rs.20,000/-. 3. We heard the learned counsel appearing for the appellant and Sri.P.V.Jyothi Prasad, the learned counsel appearing for the Insurance Company. 4. The learned counsel for the appellant pointed out that the Tribunal has not taken the income as proved. He also pointed out that the appellant is a cine artist and the accident occurred when he was driving a bike. He would M.F.A. No.272 of 2000 -: 3 :- also submit that an amount of Rs.10,000/- towards pain and suffering is too low and he was in the hospital for two months and has undergone two surgeries. He would further submit that there is a shortening by one inch of his right leg as certified in Ext.A7 disability certificate. He would further point out that Ext.A7 itself shows that he has suffered 15% disability. But for the only reason that the doctor was not examined by the appellant, the Tribunal has arrived at a lump sum of Rs.20,000/- under the head of disability and loss of earning capacity. The learned counsel for the appellant would also point out that there is a claim of Rs.3,000/- towards bystander expenses. But the Tribunal awarded only Rs.500/- on this count. The appellant was in the hospital from 7.3.1994 to 29.6.1994. The learned counsel appearing for the insurance company would submit that there is no dispute that the matter is governed by valid insurance policy. 5. The accident took place on 7.3.1994. Of course, M.F.A. No.272 of 2000 -: 4 :- the learned counsel for the insurance company would point out that being a cine artist, he has not proved his regular income. 6. As far as the income is concerned, the accident took place on 1994 and the appellant was working as a cine artist and he was aged 28 years only. Having regard to the totality of facts and circumstances we are inclined to take income at Rs.2,000/- per month. Accordingly, the appellant is entitled to Rs.2,500/- more towards loss of earning for 5 months, as the appellant is entitled to enhanced amount of Rs.500/- per month towards income. We further feel that the appellant should be awarded Rs.1,000/- towards transportation expenses. The appellant was in the hospital in connection with two surgeries and he was in the hospital for nearly two months. The appellant suffered compound communited fracture in both the bones of right leg. He has undergone surgery. Therefore, having regard to the nature of the injuries and also the nature of the treatment M.F.A. No.272 of 2000 -: 5 :- undergone, we are of the view that the appellant should be granted a further sum of Rs.10,000/- towards pain and suffering. As far as the claim for inconvenience and disfigurement, we notice that it is not disputed that the appellant sustained shortage of one inch of his injured leg as mentioned in Ext.A7 disability certificate. It is of permanent nature and particularly in his field of activity, we feel that the amount of Rs.5,000/- awarded by the Tribunal is too low and therefore, we award an amount of Rs.15,000/- instead of Rs.5,000/- under this head. We also enhance to an amount of Rs.2,000/- in place of Rs.500/- towards bystander expenses. As far as the medical expenses is concerned, the Tribunal awarded Rs.22,800/- for the amount covered by the medical bills. We find that there is no reason to enhance the compensation amount already awarded by the Tribunal. Then, the remaining question is that of permanent disability and loss of earning capacity. The appellant was awarded Rs.20,000/- as against the claim M.F.A. No.272 of 2000 -: 6 :- of Rs.5,00,000/-. No doubt, the doctor who issued Ext.A7 disability certificate was not examined to prove this document. But the nature of the injuries are not disputed. Having regard to the totality of the facts and circumstances, we are inclined to fix 7% disability even though the doctor was not examined as required by law. The appellant was aged 28 years only. Therefore the multiplier should be 18. We have enhanced the monthly income of the appellant as Rs.2,000/-. Therefore, the appellant would be entitled to Rs.30,240/- towards inconvenience and disfigurement caused. But the Tribunal has already awarded Rs.20,000/-. Therefore, the appellant is entitled to Rs.10,240/- more under this head. Therefore, the appellant will be entitled to a further sum of Rs.35,240/-. The enhanced amount will carry interest at the rate of 7.5% per annum from the date of filing of the Application till the date of payment. However, the appellant will not be entitled to interest for the period M.F.A. No.272 of 2000 -: 7 :- from 22.8.2005 till today. The appellant is allowed to realise this amount from the 3rd respondent. The appellant will also be entitled to proportionate costs. The appeal is allowed as above. K.M.JOSEPH, JUDGE. M.C.HARI RANI, JUDGE. Jvt