IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 MACA.No. 2375 of 2008() ----------------------- OPMV.324/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA .................... APPELLANT/2ND RESPONDENT: ---------------------------------------------- NATIONAL INSURANCE COMPANY LTD., PATHANAMTHITTA. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT/CLAIMANT: ------------------------------------- C.O. BABU VARGHESE @ C.O. GEEVARGHESE, CHARUVILAYIL PUTHEN VEEDU, MURINJAKAL POST, KOODAL. ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR R1 SRI.V.VARGHESE FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. NO: 2375 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd Day of August, 2009. JUDGMENT K. M. Joseph J. The appellant is the second respondent in a petition filed under Section 166 of the Motor Vehicles Act. The respondent/claimant has been awarded a total sum of Rs.4,72,500/-, the break up of which is as follows: 1. Loss of earning for one year : Rs. 30,000/- 2. Transport to hospitals and damage to clothing : Rs. 3,500/- 3. Extra noursihment : Rs. 3,000/- 4. Medical and treatment expenses including bystander expenses: Rs. 15,000/- 5. Pain and sufferings endured : Rs. 50,000/- 6. Loss of amenities of life : Rs. 10,000/- 7. 80% loss of earning capacity/ disability caused : Rs.3,60,000/- Rs.4,72,500/- = = = = = = = = M.A.C.A . NO: 2375 OF 2008 :2: 2. The respondent was 40 years of age when the accident took place on 17.2.2000. 3. We heard the learned counsel for the appellant and the learned counsel for the respondent. 4. The learned counsel for the appellant would submit two contentions before us. He would submit that while it is true that amputation was done on the right hand above elbow, it was done after a period of nearly one year and therefore it is a case of merely medical negligence. The actual injuries suffered were fracture of both bones of right forearm, including elbow and lacerated wound on the right arm. 5. Secondly, it is contended that the Medical Board has certified 50% permanent disability. But, the Tribunal took disability at 80%. Per contra, the learned counsel for the respondent supported the award. 6. As far as the contention that amputation of right hand should be treated as a result of medical negligence, we are of the view that there is no merit. No evidence in support of the contentions is produced. Apart from the fact the amputation was done after a period M.A.C.A . NO: 2375 OF 2008 :3: of more than one year, there is nothing to substantiate the case of the appellant that amputation was necessitated on account of medical negligence and hence we reject the said contention. 7. The next contention relates to the correctness of taking 80% as the disability in place of 50%. The reasoning of the Tribunal is as follows: “It has been submitted on behalf of the petitioner that he is unable to act as a mason as his right hand above elbow was amputated and so, as far as his profession is concerned, he is a totally disabled person. In essence, his plea is that he is having 100% permanent disability for which he is entitled to get compensation. As far Schedule I of the Kerala Workmen's Compensation Rules, 1958 in cases of amputation of either arm below shoulder with stump less than 8” from tip of acromion, percentage of loss of earning capacity is 80%. Ext.A12 photograph reveals that the right arm of the petitioner below shoulder with stump less than 8” from tip of acromion was amputated. Further I had the occasion to see the amputated arm of the petitioner, when he was present in the court during the course of argument. I was convinced that Ext.A12 photograph showing the present state of the petitioner as to his amputated arm is genuine. Thus I am inclined to hold that his percentage of loss of earning capacity is 80%.” M.A.C.A . NO: 2375 OF 2008 :4: 8. As the right hand amputation has been done, it will mean the end of his career, as a mason. We cannot also shut our eyes to the fact that the respondent is 40 years of age with one hand amputated. We would think that it may be unjust on our part to interfere with the award taking 80% as disability as against 50%, which was certified by the Medical Board. Having regard to the nature of the injury, amputation of right hand and the vocation of the respondent, we do not see any reason to interfere with the award. This appeal is accordingly dismissed. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/