IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 MACA.No. 303 of 2005(D) ------------------------------------ O.P.(MV). NO..518/1997 OF M.A.C.T, IRINJALAKUDA. .................... APPELLANT/ PETITIONER: -------------------------------------- FRANCIS, S/O. KAITHARATH VAREED, P.O. VELLANGALLUR, THRISSUR DISTRICT. BY ADV. SRI.V.BINOY RAM. RESPONDENTS/ RESPONDENTS: ------------------------------------------------ 1. P. BIJU PAUL, S/O. PULLUKKARA POULOSE, VELAYANAD, VELLANGALLUR P.O., THRISSUR DISTRICT. (OWNER OF KL-8/B 3812). 2. JOSE, S/O. VATHUKADAN VARGHESE, KOTTANELLUR VILLAGE, P.O. THRISSUR DISTRICT, (DRIVER OF KL-8/B 3812). 3. THE MANAGER, NEW INDIA ASSURANCE CO.LTD., VELLANIKKARAN BUILDING, IRINJALAKUDA, (INSURER OF KL-8/B 3812). 4. C.L. JOY, CHAKKALAKKAL LONAPPAN, ARIPALAM P.O., POOMANGALAM, THRISSUR DISTRICT. 5. THE MANAGER, NEW INDIA ASSURANCE CO.LTD. 2ND FLOOR, VELLANIKKARAN BUILDING, IRINJALAKUDA. R5 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL. S.C. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.A.C.A.No.303 OF 2005 ------------------------------------- Dated 7th November, 2008 JUDGMENT Koshy,J . Appellant/claimant sustained injuries in a motor accident on 21.4.1997. He claimed compensation of Rs.1,50,000/= alleging negligence on the part of the second respondent driver of the vehicle insured by the third respondent insurance company. The claimant was riding a motor cycle owned by the fourth respondent insured by the fifth respondent. The Tribunal found that the claimant was not having a valid licence at the time of the accident and the accident occurred at the middle of the road and, therefore, 50% negligence was found on the part of the claimant. We see no ground to interfere in the finding of the Tribunal which is based on evidence. With regard to the quantum of compensation, the claimant was aged 48 at the time of the accident. The Tribunal fixed 15 as the multiplier taking guideline from the second schedule. No enhancement is needed in the multiplier fixed by the Tribunal. The claimant was a tailor by profession and he was maintaining a family. Only Rs.1,500/= was fixed as the monthly income. Even if he was getting Rs.100/= per day, he would have got 25 days' work in a month and, therefore, we fix Rs.2,500/= as the monthly MACA.303/2005 2 income. As far as his injuries are concerned, Ext.A4 shows the following injuries: “1)Comminuted fracture lower end of radius right. 2) Comminuted fracture upper end of tibia and depressed tibial condyle left side. 3) Acetobular fracture right hip. 4) Lacerated wound on right leg. 5) Abraded contusion right shoulder.” The disability certificate was issued and proved by PW2 doctor. Following disabilities were noticed in the disability certificate: “1) Fibrous ankylosis of right hip with malunited fracture of acetabulum and avascular of femoral head. 2) Shortening of right lower limb of 3 ½ cm. 3) Partially recovered nerve palsy (R). 4) Malunited fracture of distal end of right radius with ulnar head subluxation, with ½ cm. shortening. 5) Pain and restriction of movements of left knee-90o.” The Tribunal believed the doctor and assessment of percentage of disability and fixed the disability at 40%. It is the contention of the appellant that he cannot do the work of a tailor with 40% disability. So, his loss of earning capacity is 100%. However, we are not enhancing the percentage of disability as found by the Tribunal on MACA.303/2005 3 the basis of the medical certificate. If that be so, compensation payable for disability and loss of earning capacity will be Rs.1,80,000/= (2500 x 12 x 40 x 15). The appellant claimed 100 Rs.40,000/= for disability and another Rs.40,000/= for loss of earning power. Even though the amount calculated by the Tribunal was more than Rs.1,00,000/=, it was limited to Rs.80,000/=. In Nagappa v. Gurudayal Singh and others (AIR 2003 SC 674), the Apex Court held that award need not be limited to the amount specified in the claim. It is the duty of the Tribunal to award just and reasonable compensation. Further, even if full amount as calculated is awarded, it will be less than the total amount claimed. We are of the opinion that Rs.1,80,000/= ought to have been awarded by the Tribunal for disability and loss of earning power. So, the claimant will be entitled to an additional amount of Rs.1,00,000/= under this head. Because of the fractures, he cannot do any work for four months. So, he will be entitled to Rs.10,000/= for actual loss of earnings for the period under treatment. The Tribunal has awarded only Rs.3,000/= under this head. So, the additional amount payable under this head will be Rs.7,000/=. It is submitted that only Rs.12,000/= was awarded for pain and suffering and only the actual medical expenses covered by bills were reimbursed. There were several amounts not covered by bills. It is also contended that only MACA.303/2005 4 Rs.1,200/= was awarded for bystander's expense and the amounts awarded under all other heads are very low. Considering the total compensation awarded, we are not enhancing the same. So, the additional amount will be Rs.1,07,000/=. 50% of the above amount has to be deducted for contributory negligence. So, the additional amount payable will be Rs.53,500/=. The Tribunal awarded a total compensation of Rs.53,854/=. Even if the additional amount now awarded is included, the compensation will be within the total amount claimed. The above additional amount of Rs.53,500/= should be deposited by the third respondent insurance company with 7.5% interest from the date of application till its deposit, over and above the amount decreed by the Tribunal. On deposit of the amount, the appellant is allowed to wihdraw the same. The appeal is partly allowed. J.B.KOSHY JUDGE THOMAS P. JOSEPH JUDGE tks