IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 14TH JANUARY 2008 / 24TH POUSHA 1929 MFA.No. 199 of 2001 OPMV.194/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA APPELLANT: PETITIONER: ------------------- MOHANAN, S/O.KRISHNAN, AGED 40 YEARS, MANJANGAL HOUSE, MANNOOR, KEZHILLAM, IRAPURAM VILLAGE. BY ADV. SRI.K.JAJU BABU SMT.A.S.BEENU RESPONDENTS: RESPONDENTS: ----------------------- 1. P.K.KRISHNAN UNNI, S/O.GOPALAN NAIR, PALATH HOUSE, THIRUVANNOOR NADA P.O., KOZHIKODE. 2. RAVEENDRAN @ RAVI, ANDI, KAITHAKUNNAMMEL HOUSE, PUTHOOR VILLAGE, KOZHIKODE. 3. UNITED INDIA INSURANCE CO. LTD.,. THAMARASSERRY. R1 BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.R.JAYAKRISHNAN R3 BY ADV. SRI.PMM.NAJEEB KHAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.T.SANKARAN, JJ. ---------------------------------------------------- M.F.A. NO. 199 OF 2001 D ---------------------------------------------------- Dated this the 14th January, 2008 JUDGMENT J.B.KOSHY, J. Appellant/claimant suffered serious injuries in a motor accident occurred on 25.12.1997. While he was driving an autorickshaw, it collided with a mini bus owned by the first respondent, driven by the second respondent and insured by the third respondent insurance company. The Tribunal found that both the drivers were negligent and apportioned 25% negligence on the part of the appellant and 75% on the part of the driver of the mini bus. Therefore, after deducting 25% of the compensation for the negligence on the part of the appellant, the Tribunal has awarded an amount of Rs.1,27,217/- with interest and costs. The appellant questions the finding of negligence as well as the quantum of compensation in this appeal. 2. The claim made by the appellant was for Rs.4,50,000/-. The Tribunal fixed 25% contributory negligence after considering Ext.A1 FI Statement, Ext.B2 scene mahazar as well as the oral evidence adduced. Considering the evidence on record, we are of the opinion that no interference is required on the apportioning of 25% contributory negligence on the part of the appellant, who was driving the autorickshaw. M.F.A. NO.199 OF 2001 D :: 2 :: 3. With regard to the injuries, the Tribunal has considered the same in detail as follows: “Ext.A5 wound certificate was issued from Medical Trust Hospital, Ernakulam. Ext.A6 is the certificate from Medical College Hospital, Kottayam certifying that petitioner is having 32% disability. As per the various medical records the injuries sustained to the petitioner as follows: (i) 5 x 3 cm lacerated wound medial aspect of right hip with fracture to the femur; (ii) 5 x 2 cm lacerated wound upper 3rd of right leg; (iii) fracture both bones of right leg; (iv) multiple lacerated wound over right shoulder and arm; (v) lacerated wound right hand, right thumb, right elbow; (vi) fracture to the 2nd and 5th matacarpel; (vii) fracture both bones right forearm. Ext.A6 disability certificate was issued by the doctor of Medical College Hospital, Kottayam. Ext.A21 discharge card was issued from Medical College Hospital, Kottayam. He was treated as an inpatient in the Medical College Hospital from 12.3.1998 to 4.4.1998. Initially the treatment was done by the external fixator to the leg fracture. Later the external fixator was removed and A.K.POP cast was applied. He was referred back to the Taluk Head Quarters Hospital, Muvattupuzha. Ext.A22 is an O.P ticket from the Medical College Hospital, Kottayam. Ext.A23 is an O.P ticket from the Medical College Hospital, Kottayam dated 4.8.1998. Ext.A24 another O.P ticket dated 3.12.1999. Ext.A25 is also an O.P ticket dated 3.7.2000. A discharge card from the Taluk Head Quarters Hospital, Muvattupuzha was also produced which is Ext.A26. The petitioner was treated as an inpatient in the Taluk Head Quarters Hospital, M.F.A. NO.199 OF 2001 D :: 3 :: Muvattupuzha from 28.4.1998 to 22.5.1998 for the treatment of ulcer. Ext.A27 is a discharge card from the Medical College Hospital, Kottayam. It shows that he was treated in the hospital from 26.12.1997 to 29.1.1998. Ext.A6 disability certificate was issued from Medical College Hospital, Kottayam and the doctor who issued the disability certificate was examined in this case. The doctor certifies that the petitioner was treated as inpatient in the Medical College Hospital, Kottayam from 26.12.1997 following the accident. The petitioner was complaining of pain right hip, leg and ankle. He has pain right forearm. He can walk only with the help of long leg calipers. The doctor found out that the fractures are united in gross malposition with angulations. There is almost total ankylosis of right knee joint with range of movement from 180 degree line. There is no useful movement in the knee joint. Movements are painful with arthritis of knee. There is 4 cm shortening of the femur. There is 25% outward and forward angulations at the fracture site of tibia with 2.5 cm shortening of the leg segment. There is bowing of the right forearm due to 20 degree angulations. Right forearm has shortening by 2 cm. The tip of right thumb is deformed. The matacarpel fracture was malunited in angulation with overlapping. Altogether the doctor certified 42% disability. The brake up details regarding the percentage of disability assessed in respect of each limb was furnished was angulation of knee 15% malunion of femur 8% malunion of tibia 6% malunion of forearm 9% crushing of tip of thumb 1% and malunion of matacarpal 3%. The oral evidence of PW1 and the various medical records would reveal that the petitioner has sustained multiple fractures. His both bones of the forearm were fractured. The fracture to the femur was segmental fracture. There was compound communited fracture to both bones of the leg. He had metacarpal fracture. All the fractures were malunited and there was malunion of fracture and shortening of the fractured limbs. He has to use support for walking even after a lapse of 3 years after the accident. Due to the visible shortening of the lower limb he has to use special chapels. He cannot walk without supporters. The right leg was totally disabled. The right hand also was disabled. The doctor has assessed 42% disability. The petitioner was an autorickshaw driver. Considering these factors his occupational disability has to be taken as 25. With this disability it is impossible for him to M.F.A. NO.199 OF 2001 D :: 4 :: drive any type of vehicle. He has normal senses. Left upper limb and left lower limb are normal. He has no brain damage or neurological problem. Petitioner can engage himself in any other kind of work. He can walk with support...” 4. After holding so, without any reason, the Tribunal assessed only 25% disability. There is a very clear finding that he cannot drive the autorickshaw and he cannot walk without support because of the malunited fracture and shortening of limbs. In the above circumstances, we are of the opinion that compensation ought to have been granted for at least 40% disability even though doctor certified 42% disability and also found that he cannot drive or continue his avocation. The Tribunal has fixed Rs.1,500/- as the monthly income of the appellant. He is an autorickshaw driver by profession. He was having valid licence and badge. We are of the opinion that being an autorickshaw driver he would earn a minimum of Rs.100/- per day and he will get at least 25 working days in a month. Therefore, Rs,2,500/- can be fixed as his monthly income. He was 37 years old. Tribunal has fixed 16 as the multiplier, taking guidance from the second schedule. If that be so, compensation payable for disability and loss of earning capacity will be Rs.1,92,000/-. The Tribunal has granted only Rs.72,000/-. Therefore, the appellant will be entitled to an additional compensation of Rs.1,20,000/-. 5. It is argued that the Tribunal has considered the survey report M.F.A. NO.199 OF 2001 D :: 5 :: and awarded compensation for the damages caused to the autorickshaw.. We are of the view that assessment of damages to autorickshaw after deducting the depreciation for the spare parts needs no interference. Even though it was argued that amount granted for medical expenses, pain and suffering etc. are very low and that for future medical expenses no amount was granted, considering the total amount, we are of the opinion that no enhancement is necessary. 6. The additional compensation of Rs.1,20,000/- over and above the decreed amount by the Tribunal should be deposited by the third respondent insurance company with 7.5% interest from the date of application till deposit. On deposit of the amount, the appellant is allowed to withdraw the same. The Miscellaneous First Appeal is partly allowed as indicated above. (J.B.KOSHY) Judge (K.T.SANKARAN) Judge ahz/ J.B.KOSHY & K.T.SANKARAN, JJ. ------------------------------------------- ------------------------------------------- M.F.A.NO. 199 OF 2001 D JUDGMENT 14th January, 2008 -------------------------------------------