IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 MFA.No. 131 of 2003() ------------------------------- OPMV.1390/1992 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT/ PETITIONER: ------------------------------------- RADHAKRISHNA PILLAI, MOHANAVILASOM, PERUMPUZHA P.O., KOLLAM. BY ADV. SRI.ANCHAL C.VIJAYAN RESPONDENTS/ RESPONDENTS: ----------------------------------------------- 1. THE GENERAL MANAGER, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. 2. BHASKARA PILLAI, S/O. GOPALAPILLAI, THONDUVILAKATHU HOUSE, KORANI,THIRUVANANTHAPURAM. 3. THIRUMURUKAN, 114 THIRUVALLANAGAR, RAMANATHAPURAM, COIMBATORE. 4. VEERASWAMI, PUNNADI STREET NO.1, KEERAMANDIR, METTUPALAYAM, COIMBATORE. 5. UNITED INDIA INSURANCE COMPANY LTD., COIMBATORE. BY ADV. SRI.A.R.GEORGE - R5 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- M.F.A.No.131 OF 2003 ------------------------------------- Dated 19th June, 2008 JUDGMENT Koshy,J . Appellant/claimant at the age of 43 sustained injuries in a motor accident in the course of employment on 17.5.1991. As a result of the accident his left leg above knee was amputated. There were several other injuries also. He claimed a total compensation of Rs.14,74,633/=. The Tribunal found that the accident occurred due to the negligence of the second respondent driver of the vehicle which was owned by the first respondent and first respondent was directed to deposit the amount in view of the vicarious liability, but, the amount awarded was only Rs.3,10,000/= including medical expenses. The only dispute raised in this appeal is regarding the quantum of compensation. With regard to the injuries, Ext.A9 certificate issued by the Government Medical College Hospital, Thiruvananthapuram states as follows: “Patient had severe crush injury and compound comminuted fractures on left lower limb, degloving in nature involving the blood vessels, muscles and nerves. Multiple injuries on right lower limb along with compound comminuted fracture on both bones, right leg and about15 cms. Tibia is exposed and also severe lacerated wound extending from hip to big toe. Disarticulation of left MFA.131/2003 2 knee done and wound debridement along with conservative management for right lower limb was done at Trichur Medical College. Patient had grade III compound fracture both bones on right leg which was treated with rest, symptomatic drugs, plaster slab application at Trivandrum Medical College. Revision amputation was done on left side at 22.6.91. Since the wound was not healing, discharging sinuses present and there was possibility of extending infection upwards. Subsequently above knee amputation was done on left side. In the right leg also there was discharging sinuses due to sequestrum. Sequestrectomy was done on 15.4.92. Patient underwent continued treatment from Orthopaedics department. He was also treated by General Surgeon, Vascular Surgeon and Phychiatrist. He was fitted with an above knee prosthesis for left side and is chial weight releaving caliper to right side. Following treatment he has symptomatically improved considerably and on review today the following permanent disabilities were noted: 1. Above knee amputes left side with unhealthy stump, presence of neuroma and flexion contracture of hip. 2. Marked wasting of muscles on amputation stump with sensory impairment. 3. Presence of discharging sinus in the stump. 4. 3 inches shortening on the leg segment of right lower limb. 5. Gross limitation of movements of left hip mainly abduction and external rotation with associated wasting of muscles around hip joint. 6. Flexion of right knee restricted at its terminal 30O and associated medio lateral instability. 7. Multiple areas of soft tissue loss and MFA.131/2003 3 presence of irregular projections along the anterior compartment and calf musclature of right lower limb and also on the dorsum of foot. 8. Multiple discharging sinuses on the right leg. 9. Restriction of dorsiflexion and planter flexion of right ankle joint along with limitation of eversion and inversion at the substalar joints. 10. Ankylosis on Metatarsophalangeal joints and inter phalangeal joints of right foot. 11. Antalgio gait with limbing and circumduestion on right lower limb, ambulation with a pair of axillary crutches. 12. Pain and tenderness on both axillac with associated weakness on both upper limbs due to continuous use of axillary crutches. 13. Chronic lumbosacral strain with sciatica on right lower limb. 14. Pain and paraesthesia on right hand with restriction of wrist dorsiflexion. 15. Generalised anaesthesia along the right lower limb. The permanent disability produced due to the above with reference to the specific parts as per MC Bride's Scale has been estimated as 70% (seventy) only.” Even though there was amputation above knee of the left leg, only 70% disability was assessed by the doctor. According to the claimant, as a result of the accident he is unable to do any work. Tribunal calculated compensation for 70% disability in view of the disability MFA.131/2003 4 certificate produced by the claimant and proved by PW3 doctor. We are of the opinion that in view of the medical certificate no change is required in the disability assessed by the doctor. It is contended that Tribunal has awarded compensation for disability on a multiplier method, but, no compensation for loss of earning power was granted. Compensation is awarded for permanent disability and loss of earning capacity. Compensation was separately awarded for loss of amenities and pain and suffering. Therefore, over and above the compensation granted for permanent disability on a multiplier method, no separate compensation need be awarded for loss of earning power. He was aged 43 years at the time of accident. Tribunal has taken 15 as the multiplier considering the second schedule as guideline (APSRTC v. Pentaiah Chary (2007 AIR SCW 5689). We are of the opinion that no enhancement is required in the multiplier fixed by the Tribunal. With regard to the income, according to the claimant, he was getting Rs.3,500/= per month at the time of accident. That is without considering the future prospects in life. It is contended that as years go by, income as well as expenses will increase especially because of the present inflation trend and with a meagre income of Rs.3,500/= one cannot maintain a family. We may now consider the income earned by him at the time of accident. He was an electrical contractor. Ext.A11 is the certificate of Electrical wireman. Ext.A12 is the permit for Electrical Supervisor. Ext.A13 is licence of wireman. Ext.A14 shows that apart MFA.131/2003 5 from the licence of wireman, he had licence of a plumber also. Exts.A15 and A16 are National Trade certificates issued by the Ministry of Labour employment and Rehabilitation, Government of India to show that he is a qualified electrician and plumber. The Tribunal on evidence found that he was an electrical contractor as pleaded by him. PW2 also deposed that the claimant was working under him in electrical works. But, Tribunal has fixed only Rs.1,500/= as the monthly income. In view of his qualifications and the evidence adduced by him, which is not controverted by the respondents, we are of the opinion that income assessed by the Tribunal is too low. He was maintaining a family and as a contractor he was employing people under him. He was having technical qualifications. Taking into account of these circumstances, we are of the opinion that the Tribunal must have fixed at least Rs.3,000/= as monthly income. If that be so, for 70% disability appellant will be entitled to Rs.3,78,000/= (3000 x 12 x 70 x 15). 100 Tribunal has awarded Rs.2,10,600/= for disability and loss of earning power. So, the appellant will be entitled to an additional amount of Rs.1,67,400/= under that head. Tribunal found that he was unable to do any work for a period of 12 months. He was under treatment during that period, mostly inpatient, as can be seen from various medical certificates produced. Since we have increased the monthly income, he is entitled to Rs.18,000/= more for loss of actual earnings for the treatment period . It is submitted that the amount MFA.131/2003 6 awarded for treatment etc. are very low. Claimant produced medical bills for Rs.12,137.07. Tribunal awarded Rs.15,000/=. He had undergone inpatient treatment for more than four months in different hospitals and he was also treated as outpatient on several times. There will be many expenditure which will not be covered by bills. We award Rs.10,000/= more for medical and treatment expenses. No amount was awarded for future treatment and expenses. No data was produced. We are of the opinion that the amount awarded as interest can be utilised for necessary incidental future treatment. Thus, the appellant will be entitled to an additional amount of Rs.1,95,400/=. The above amount of Rs.1,95,400/= should be deposited by the first respondent 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, appellant is allowed to withdraw the same. The appeal is partly allowed. J.B.KOSHY JUDGE P.N.RAVINDRAN JUDGE tks