IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 MACA.No. 461 of 2008 ---------------------- OP(MV).3322/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR APPELLANT/PETITIONER: ----------------------------------- M.D. SASI, S/O. DAMODHARAN, RESIDING AT MANKUZHI HOUSE, P.O. MARATHAKKARA, THRISSUR DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE ADV. SRI.T.C.SURESH MENON ADV..SRI.JIBU P THOMAS ADV..SRI.P.S.APPU RESPONDENTS/ RESPONDENTS: --------------------------- 1. RAFEEK, S/O. MAMMU, RESIDING AT ARRYAKKARA HOUSE, P.O. MARUTHAYOOR, PAVARATTY, THRISSUR. 2. ANWAR, S/O. ALIKUTTY, RESIDING AT KONARATH HOUSE, THIRUVATHRA, MANATHALA, CHAVAKKAD, THRISSUR. 3. THE NEW INDIA ASSURANCE COMPANY LIMITED, BRANCH KUNNAMKULAM, THRISSUR. R3 BY ADV. SRI.JOY GEORGE BY ADV. SMT.PRAICY JOSEPH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ................................................................................ M.A.C.A.No. 461 oF 2008 ......................................................................... Dated this the 17th November, 2009 J U D G M E N T P.R. Raman, J: The appellant was the claimant in O.P.(MV) No.3322 of 2002 of the M.A.C.T., Thrissur. He sustained serious injuries in a road accident occurred on 31.05.2001 at about 12.30 p.m. when he was riding a motor cycle bearing registration No.KL8/L 9192 through Thrissur-Kunnamkulam public road, as a result of a hit by the car driven by the second respondent, coming from the opposite direction, bearing registration No. KL 10E 1188. It is alleged that the car was coming in a rash and negligent manner and hit the motor cycle. As a result of the impact, he fell down and sustained serious injuries. He was treated in the Amala Hospital, Thrissur. Thereafter he was taken to the West Fort Hospital, where he underwent treatment as inpatient on M.A.C.A.No. 461 OF 2008 2 different occasions. He claimed a sum of Rs. 4,50,000/- as compensation for the injuries sustained by him. 2. The respondent No.1 did not file any written statement. No relief is claimed against the second respondent. The third respondent Insurer admitted insurance coverage of the car. But disputed the allegation of negligence on the part of the driver of the car. They also disputed the age, occupation and income of the petitioner as also the amounts claimed under various heads. 3. The Tribunal framed necessary issues. The evidence consist of Exts.A1 to A9, Ext.B1 and oral evidence of P.W.1. Respondent No.3. the Insurance Company, contested the case after obtaining permission under Section 170 of the M.V. Act. The Tribunal, after analysing the evidence adduced in the case held that the accident occurred as a result of negligent driving of of the car driver It is also found that the petitioner sustained serious injuries as evidenced by Exts. A2 to A6. The Tribunal then proceeded to assess the compensation payable The claimant/appellant claimed that he was earning an amount of Rs. M.A.C.A.No. 461 OF 2008 3 6000/- as a heavy vehicle driver But he did not adduce any evidence in support of the said contention. Hence the Tribunal fixed the monthly income at Rs. 2000/- notionally. Towards 'loss of earning' an amount of Rs. 12,000/- was awarded. Towards 'transportation expenses' an amount of Rs.1500/- was awarded. Under the heads 'extra nourishment' and 'damage to clothing', Rs.2000/- and Rs.500/- were awarded respectively. An amount of Rs.85,000/- was claimed towards medical expenses. But Ext.A9 series produced only shows expenditure for an amount of Rs.64744/-. Hence an amount of Rs. 64750/- was allowed. Towards by-stander expense, an amount of Rs.3000/- was also awarded. In the absence of any evidence, no amount was awarded towards expenditure for 'future treatment'. 4. As against the claim for Rs.35,000/- towards 'pain and suffering', taking into consideration the fact that the petitioner had sustained fracture to sacro iliac bone and symphysis and also the shaft of left humerus and head of metacarpal of index finger also were fractured and had undergone surgical operations, an amount of Rs.20,000/- was awarded. It is contended that the M.A.C.A.No. 461 OF 2008 4 compensation awarded towards 'pain and suffering' is inadequate. Considering the nature of the injuries suffered and further fact that he had undergone surgical operations, we find that some more amount could be awarded under this head. Accordingly, we award a sum of Rs.5000/- (Rupees five thousand only) more by way of additional compensation towards pain and suffering. The petitioner had claimed a sum of Rs.1,82,000/- as compensation for permanent disability. But the Tribunal, taking the multiplier of '16' and fixing the percentage of disability at '12', awarded an amount of Rs. 46080/-. It is contended that the doctor had assessed his disability at 16%. The medical certificate was also produced and the doctor was examined. But the Tribunal, according to the appellant, was not justified in reducing the disability to 12%. 5. We have considered this submission. Even though the doctor was examined and Ext. A7 disability certificate shows that the disability, assessed by the doctor is 16%, the Tribunal observed that P.W.1 doctor has not separately assessed the disability of fractured limbs. Hence, the Tribunal reduced it to M.A.C.A.No. 461 OF 2008 5 12%. 6. We have gone through the copy of the deposition made available to us by the learned counsel for the appellant. We have also perused the medical certificate Ext.A7. The certificate was issued after examining the patient by the doctor, who was examined as P.W.1. , certifying that the claimant has fracture of (L) Sacro -iliac Joint with Symphysis Pubis Diastasis, fracture of (Left) Shaft of Humurus (comminuted fracture) and fracture of neck of index metacarpal (Left) hand. The certificate also shows that his pelvis fracture has healed with persistent partial separation of symphysis, comminuted fracture of shaft of (Left) humerus has healed well, but which has produced terminal limitation of abduction and rotation of (left) shoulder and his left index metacarpal fracture has healed satisfactorily. 7. Considering the nature of the injuries, suffered, we think that it will be appropriate to fix the disability at 14% instead of 12% as assessed by the court below. On re-working of the compensation, the petitioner will be entitled for an amount of Rs. 7680/-, which is rounded to Rs.7770/-. Thus he will be entitled M.A.C.A.No. 461 OF 2008 6 for a sum of Rs. 12770/-, which will carry interest at the rate of 7% per annum from the date of the petition till realisation. He is not entitled for any additional compensation in any other head. The appeal is allowed. The amount shall be deposited by the third respondent, Insurance Company within a period of two months from the date of receipt of a copy of the judgment. P.R. RAMAN, JUDGE. P.R. RAMACHANDRA MENON, JUDGE. lk