IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 MACA.No. 2486 of 2008 ------------------------------------- OPMV.201/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT: -------------------- THE NATIONAL INSURANCE CO. LTD., PALA, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G. ROAD,KOCHI -35. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT / CLAIMANT: -------------------------------------------- JOSEPH @ PEPU, S/O. MATHAI, NIDHIYEDUTHAKUNNEL HOUSE, VELLIAPPALLY P.O., ARUNAPURAM, PALA. ADV. SRI.MATHEW JOHN (K) FOR R1 SRI.AJEESH K.SASI FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.2486 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of February 2010 JUDGMENT Basheer, J. This appeal is at the instance of the insurer of a vehicle which was involved in a motor accident. The claim petition filed by respondent No.1, who suffered serious injuries in the accident, was allowed by the Tribunal awarding him a total compensation of Rs.3,05,750/- with 9% interest from the date of petition till the date of realisation along with cost of Rs.6,100/-. 2. The primary grievance of the appellant/insurance company is that the Tribunal committed serious illegality in reckoning the disability of the claimant as 100% eventhough Ext.A11 medical certificate indicated only 36% disability. Learned counsel for the appellant also takes exception to the amount awarded for loss of amenities contending that in view of the compensation granted under the head of permanent partial disability, pain and suffering etc. the claimant ought not to have been awarded any further amount under the head of loss of amenities. 3. It was noticed by the Tribunal that the claimant was infact physically carried to the court by others. It was further noticed that the claimant required the assistance of two persons and that his right leg “is almost in two pieces, deformed and short”. 4. In this context, it is worthwhile to refer to the medical certificate issued by the Assistant Professor in Orthopaedics, Government Medical College, Kottayam which has been marked in the case as Ext.A11. The doctor had M.A.C.A.Nos.2486 OF 2008 :: 2 :: examined the claimant on March 5, 2008 about ten days prior to the disposal of the claim petition. The claimant complained of: 1. Inability to walk and put weight on Right lower limb. 2. Shortening and deformity of Right leg. 3. Pain and abnormal mobility in Right leg. The doctor noted thus: “On examination he is unable to ambulate and was carried to the clinic. His left leg is deformed with multiple scars and puckered scars at the site of the pins. There is pain and abnormal mobility at the lower third Right leg with swelling of the right foot and shortening of right leg. His right knee has flexion deformity of 10 degrees and ankle is in 10 degrees of plantar flexion. The dorsalis pedis and posterior tibial pulsation felt feebly over the right leg and toe movements are very minimal only. His right knee movement is from 10-90 degrees and right ankle is stiff with only jog of movement possible. High right leg is 1.5 inches shorter compared to the left leg. His previous X rays show non-union of the lower third tibia with gross osteoporosis. He used to work as a rubber tapper but currently he is unemployed.” The doctor further certified that claimants partial disability is 36%. 5. It is true that the Judge of the Tribunal who saw the claimant in flesh and blood before him noticed that the claimant cannot do any work and that he cannot even walk. It was in the above circumstances that the Tribunal took the view that his disability has to be reckoned as 100% even though the doctor had certified it only 36%. Claimant was admittedly a rubber tapper. At the time of the accident he was 48. The accident occurred in December 2005. That means for the last more than 4 years he has not been in a position to work. Going by the M.A.C.A.Nos.2486 OF 2008 :: 3 :: medical records available before us, we find no reason to differ from the view taken by the Tribunal. Therefore, the contention raised by the appellant that the Tribunal was not justified in reckoning the disability of the claimant as 100% cannot be sustained. 6. Learned counsel for the appellant contends that the claimant ought not to have been given any compensation under the head of loss of amenities. The Tribunal has awarded only Rs.25,000/- under this head. However, it can be noticed that while computing compensation under the head of disability the Tribunal has deducted 1/3rd from his annual income. This could not have been done. 7. In that view of the matter, we do not propose to interfere with the award of compensation under the head of loss of amenities. We are not enhancing the amount awarded under the head of disability, since the claimant has not preferred any appeal challenging the 1/3rd deduction made from his income. Keeping in view all the facts and circumstances, we are not satisfied that any interference is warranted. Appeal fails and it is accordingly dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes