IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 11TH MARCH 2008 / 21ST PHALGUNA 1929 MFA.No. 469 of 2002 --------------------------- OPMV.1095/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR ............................... APPELLANT: PETITIONER ------------------------------------ GOPAKUMAR, S/O.DEVAYANI, "SUSMITHA BHAVAN", GANDHI NAGAR II AVENUE, THRISSUR ROAD, KUNNAMKULAM. BY ADV. SRI.RANJIT BABU RESPONDENTS: RESPONDENTS ----------------------------------------------- 1. GIREESH KUMAR, S/O.NARAYANAN, PAZHNATH HOUSE, MUTHUVATTOOR P.O., GURUVAYOOR. 2. NATIONAL INSURANCE CO LTD., EAST NADA, GURUVAYOOR. 3. MRS. GEETHA, W/O.LATE KRISHNATHILAKAN, PAZHNATH HOUSE, MUTHUVATTOOR P.O., GURUVAYOOR. 4. MINOR ARJUN, AGED 8, S/O.LATE KRISHNA THILAKAN, REPRESENTED BY MOTHER 3TH RESPONDENT MRS.GEETHA, W/O.LATE KRISHNA THILAKAN. BY ADV. SRI.E.M.JOSEPH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & A.K.BASHEER, JJ. -------------------------------------- M.F.A.No.469 OF 2002 ------------------------------------- Dated 11th March, 2008 JUDGMENT Koshy,J . Appellant/claimant sustained serious injuries in a motor accident while he was riding a motor cycle. The above motor cycle was hit by another motor cycle driven by the first respondent and insured by the third respondent insurance company. Tribunal found that the accident occurred due to the negligence of the claimant as well as the first respondent and negligence was apportioned equally. Both drivers were charge sheeted. Considering the scene mahazar as well as the charge sheet we are of the opinion that contributory negligence of 50% attributed on the appellant needs no interference. With regard to the quantum of compensation, the medical certificate shows that there is 20% disability. Tribunal did not award compensation for 20% disability on multiplier method, but, awarded a lumpsum of Rs.25,000/= for disability and loss of earning power. Appellant was aged 28. According to him, he was employed as a clerk in TVS parcel service and he was getting Rs.2,000/= as monthly income. Ext.A11 salary certificate produced was signed by the agent of Southern Roadways Ltd.. The person who issued the certificate was also not examined. Therefore, Tribunal did not take reliance of the same, but, fixed Rs.1,500/= as MFA.469/2002 2 monthly income. Southern Roadways Ltd. is a TVS undertaking and agencies are doing their operations. Appellant was an able bodied young man aged 28 years. Monthly income of Rs.2,000/= claimed ought to have been accepted by the Tribunal. Tribunal found that appellant was unable to move for three months due to the accident and Rs.4,500/= was given as loss of actual earnings. Since we have increased monthly income from Rs.1,500/= to Rs.2,000/=, appellant is entitled to an additional amount of Rs.1,500/= under that head. As far as the injuries are concerned, he sustained very serious injuries. Tribunal has stated the above at paragraph 10 as follows: “After the accident the petitioner was taken to Thahani Hospital, Guruvayur as evidenced from Ext.A5, which is the copy of the wound certificate. There was a lacerated wound 1.5cms on the medial aspect of right leg including the penis. X-ray revealed fracture to both bones of right leg at one third. He was referred to West Fort Hospital for better management. Ext.A6 is the discharge summary issued by the West Fort Hospital, which would go to show that he had sustained grade II compound fracture to both bones of right leg. There was fracture to pelvis and bleeding from urethra. Wound debridement and suturing was done and closed nailing was done on 12.12.96. He was discharged on 21.12.1996. The follow up note would reveal that he was once again seen at the O.P. on 8.1.1997. Ext.A7 is the O.P. ticket issued by the Medical College Hospital and it is dated 18.5.1999.” MFA.469/2002 3 Tribunal did not accept the certificate assessing 20% disability issued by Dr.K.Soman. The Tribunal also found that the appellant visited the Medical College only for getting disability certificate. Doctor was not examined. But, at the same time, Tribunal found that there is some disability to the appellant. According to the Tribunal, even though there is no evidence regarding the permanent disability, in view of the fracture of both bones as well as fracture to pelvis and injuries to urethra, he will have discomfort. Considering the nature of injuries, we are of the opinion that Tribunal ought to have awarded compensation for 10% disability even though 20% disability was assessed by the doctor. If there is 10% disability, compensation payable will be Rs.43,200/= (2000 x 12 x 10 x 18). We have taken 18 100 as the multiplier taking guidelines from the second schedule as appellant was aged 28 at the time of accident. After deducting Rs.25,000/= granted by the Tribunal, additional compensation payable under this head will be Rs.18,200/=. Tribunal has deducted more than Rs.9,850/= from the medical bills. Of course, part of the bills are regarding advance bills that has to be deducted, but, we award Rs.300/= more for medical expenses. Therefore, total additional compensation payable will be Rs.20,000/= out of which 50% has to be deducted towards contributory negligence and appellant is entitled to Rs.10,000/= more than that was awarded by the Tribunal. Third MFA.469/2002 4 respondent insurance company is directed to deposit Rs.10,000/=, over and above the amount decreed by the Tribunal, with 7.5% interest from the date of application till the date of deposit. On deposit of the amount, appellant is allowed to withdraw the same. The appeal is partly allowed. J.B.KOSHY JUDGE A.K.BASHEER JUDGE tks