IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 MACA.No. 40 of 2003() --------------------- OPMV.867/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/PETITIONER: ------------------------------------- JOSE KURIAKOSE @ BENNY, S/O. A.D.KURIEN, AREMBADATHIL HOUSE, AMAYAR KARA, VANDANMEDU P.O. AND VILLAGE, REPRESENTED BY HIS FATHER AND AUTHORISED AGENT A.D.KURIEN, S/O. DEVASIA. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENTS: RESPONDENTS: -------------------------------------------------- 1. RADHAKRISHNAN, S/O. KRISHNAN NAIR, KALARICKALL HOUSE, VAYALAR NAGAR BHAGAM, PAZHAYA KOCHARA KARA, ANAKKARA VILLAGE. 2. M.JINADEVAN, S/O. MADHAVAN NELLIYANI KUNNEL, KARIMKUNNU POST, THODUPUZHA. 3. THE NEW INDIA ASSURANCE CO. LTD., REPRESENTED BY ITS BRANCH MANAGER, KATTAPPANA. ADV. SRI.N.S.MOHAMMED USMAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B. KOSHY & P.N. RAVINDRAN, JJ. ---------------------------------------------------- M.A.C.A.NO.40 OF 2003-B ---------------------------------------------------- Dated this the 18th day of June, 2008. JUDGMENT Koshy, J: The appellant/claimant at the age of 26 years sustained very serious injuries in a motor accident. Rupees Eight lakhs was claimed as compensation. The Tribunal found that the accident occurred due to the negligence of the driver of the vehicle insured by the 3rd respondent insurance company. The Tribunal awarded only Rs.2,29,900/=. The only dispute is regarding the quantum of compensation. The Tribunal has fixed 18 as the multiplier since at the time of the accident the claimant was aged 26 years. A three Bench decision of the Apex Court in Smt. Supe Dei & Others v. National Insurance Co.Ltd & Others (JT 2002 Suppl.1 SC 451) and recently in APSRTC v. M. Pentaiah Chary (AIR 2007 SCW 5689) it is held that though 2nd schedule is framed for calculating compensation under Section 163 A, it can be taken for guidance for calculating compensation under Section 166. In view of the above, it was argued that considering the average age of the claimant, a higher multiplier can be taken, we see no ground to enhance the MACA.40/2003 . 2 multiplier. With regard to the monthly income, Exts.A10 to A14 show that the appellant was conducting a grocery shop in Vandanmedu Grame Panchayat. But there is no data produced to assess the actual income earned by the claimant. According to the oral evidence, he was getting Rs.3,500/= per month. He was conducting a grocery shop as can be seen from Exts.A10 to A14. The accident occurred in 1997. In the ordinary course he may earn at least Rs.100/= per day and for 25 days in a month, Rs.2,500/= can be taken as the monthly income. With regard to the injuries, the Tribunal has considered the following injuries 1. “Type I compound communited fracture of the shaft of the right femur. 2. Type II compound communited fracture of both bones of the right leg . (tibia and fibula). 3. Type III compound fracture of the right patela. 4. Fracture of the lower end of the right radius”. 2. PW4, the Orthopedic Surgeon deposed that because of the non- union of right tibia, he has orthopedic problems even after three years of both in patient and out patient treatment. There was mal union of tibia. The medical board by Ext.A25 assessed 40% disability. That MACA.40/2003 . 3 was accepted by the Tribunal. The contention of the appellant is that 40% disability at the younger age will badly affect his future enjoyment of life and he may not get good placement. Hence, compensation be enhanced for a higher percentage of earning capacity. We are of the opinion that compensation need be granted only for 40% disability. That be so, the compensation payable will be Rs.2,16,000/=(2500x12x40/100x18). The Tribunal has granted only an amount of Rs.86,400/= for disability and Rs.10,000/= for loss of earning power. Therefore, the additional amount payable for loss of earning power and permanent disability will be Rs.1,19,600/=. He was inpatient for 221 days. The Tribunal found that he was entitled to compensation for actual loss of earnings for 7 months. But loss of earnings was calculated taking Rs.1,500/= as monthly income. The case of the appellant is that because of the accident he was not able to do any work for three years. We are unable to accept that contention. During the period of in patient treatment for 7 months, he is entitled to additional compensation for actual loss of earnings at Rs.7000/= and we have increased monthly income from Rs.1,500/= to Rs.2,500/=. Therefore, additional amount payable will be Rs.1,26,000/=. It is contended that Rs.65,100/= was granted for medical reimbursement MACA.40/2003 . 4 as the value of medical bills actually produced. In a hospital there are so many expenses which are not covered by the bills. Therefore, compensation granted under that head is very inadequate. According to the claimant, compensation granted for pain and sufferings and other heads are inadequate. Considering the total amount of compensation granted, we are not inclined to enhance the compensation under other heads. The additional compensation amount of Rs.1,26,000/= should be deposited by the 3rd respondent insurance company with 7% interest from the date of application till the date of deposit over and above the decreed amount. On deposit of the amount, the appellant is allowed to withdraw the same. J.B. KOSHY, JUDGE. P.N. RAVINDRAN, JUDGE. cl MACA.40/2003 . 5 J.B. KOSHY & P.N. RAVINDRAN, JJ. M.A.C.A.NO.40 OF 2003-B JUDGMENT 18th day of June, 2008.