IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 MACA.NO. 41 OF 2006() -------------------------------- OPMV.384/2001 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER. ----------------------------------------------------------- JIGI, S/O.THOMAS, KEELAKKATTU HOUSE, MARYKULAM KARA, AYYAPPANCOIL VILLAGE. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S): RESPONDENTS. ----------------------------------------------- 1. JOHN.K.V. S/O.VARKEY, KEELAKATTU HOUSE, UPPUTHARA. 2. ANISH MATHEWS, ALAPPATTUKUNNEL, CHEMPAKAPARA P.O. UPPUKANDOM, KATTAPPANA. 3. THE NEW INDIA ASSURANCE CO.LTD., KOTTAYAM. ADV. SRI.A.C.DEVY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & THOMAS P.JOSEPH, JJ. = = = = = = = = = = = = = = = = = = = = = = = = = = M.A.C.A. No.41 of 2006 = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 25th day of November, 2008 J U D G M E N T ---------------------- Thomas P. Joseph, J. Appellant challenges the award passed by the Motor Accidents Claims Tribunal, Thodupuzha (for short, “the Tribunal”) in O.P(MV) No.384 of 2001. According to the appellant, compensation awarded is low. 2. Heard counsel for appellant and contesting respondent. 3. Point for consideration is whether appellant is entitled to any enhanced compensation. 4. Perused the relevant records. 5. The Point: Appellant met with an accident while riding on the pillion of a motor cycle on 3.2.1998. He alleged negligence on the first respondent who was riding the motor cycle. Tribunal accepted that contention. That part of the award is not under challenge. Appellant however, contended that compensation awarded is low. Learned counsel argued that appellant is entitled to get enhanced compensation on all counts. 6. Appellant was aged 26 years at the time of accident. He M.A.C.A. No.41 of 2006 -: 2 :- claimed that he was conducting electronic servicing earning Rs.4,500/- per month. Tribunal, observing that there is no acceptable evidence regarding the occupation and income of the appellant, fixed his monthly income at Rs.1,500/-. Though, counsel contended that the said finding of the Tribunal is not correct, we do not find reason or circumstance to interfere with that finding. 7. Appellant suffered comminuted fracture of right femur. He was taken to the Velankanni Medical Trust Home wherefrom he was referred to the Medical College Hospital, Kottayam. There, he underwent inpatient treatment for 14 days. He was subjected to operations for internal fixation and bone grafting. Appellant was admitted in St.John's Hospital, Kttappana on 2.3.1999 for wound debridement and sequestrectomy and was discharged on 19.3.1999. Internal fixation was removed during that period of treatment. He was again admitted in that hospital on 27.6.2000 for treatment, broken bones were removed and he was discharged on 5.7.2000. There was a further inpatient treatment in the same hospital from 20.7.2000 to 24.8.2000. Altogether, appellant underwent inpatient treatment for 75 days. According to the appellant, he had to continue outpatient treatment thereafter. It is the further contention of the M.A.C.A. No.41 of 2006 -: 3 :- appellant that he is disabled from doing any work. He produced Exhibit A10, certificate to prove the disability. In Exhibit A10, permanent disability of the appellant is certified as 20%. Tribunal however, was not inclined to accept Exhibit A10 and fixed the disability at 10%. Tribunal, taking the monthly income as Rs.1,500/-, disability as 10% and adopting 17 as multiplier, fixed compensation for disability and loss of earning power at Rs.30,600/-. Learned counsel contends that there is no justification for the Tribunal reducing the percentage of disability. 8. In Exhibit A10, disability certificate issued by the Medical Board attached to the Taluk Head Quarters Hospital, Thodupuzha it is stated that fracture of right femur has resulted in permanent disability to the extent of 20%. It is stated that there is mild deformity of right femur with evidence of chronic obsteomylites and that he has only 900 flexion of right knee and is not able to squat. He has wasting of right thigh muscle. From the above, Medical Board reached the conclusion that disability of the appellant is 20%. Considering the nature of injuries suffered by the appellant, we find no reason to discard the said finding in Exhibit A10. There was no circumstance to reduce the disability of the appellant. Hence we are persuaded to accept Exhibit M.A.C.A. No.41 of 2006 -: 4 :- A10 and fix the permanent disability at 20% for the whole body. Accepting the multiplier adopted and the monthly income fixed, compensation payable for disability and loss of earning power comes to Rs.61,200 ([1500x12x17x20/100]) as against Rs.30,600/- awarded by the Tribunal. Additional compensation payable to the appellant on that count is Rs.30,600/-. 9. It is contended by the learned counsel that compensation awarded on other counts are meagre. We have gone through the award and heard submission of both sides. Tribunal has awarded three months' salary as compensation for loss of earnings. Taking into account Exhibit A18 series, Rs.5,000/- was awarded as compensation for transportation and for expenses of by-stander, Rs.6,500/- was awarded. Taking into account Exhibits A16 and 19 series, treatment expenses to the tune of Rs.50,489/- was awarded. Rs.20,000/- was awarded as compensation for pain and suffering. A further sum of Rs.5,000/- was awarded as compensation for flexibility of leg reduced to 900 and marriage prospects being affected. On a consideration of all relevant factors, we do not find reason to interfere with the award passed by the Tribunal on those counts. Thus additional compensation payable to the appellant comes to Rs.30,600/- which will carry interest M.A.C.A. No.41 of 2006 -: 5 :- at the rate of 7.5% per annum from the date of application till realisation. Appeal is allowed in part allowing the appellant to realise Rs.30,600/- (Rupees Thirty thousand and six hundred only) as additional compensation from respondents 1 to 3 jointly and severally with interest at the rate of 7.5% per annum from the date of application till realisation. Third respondent being the insurer of the vehicle is directed to deposit the said amount in the Tribunal. On deposit, appellant is permitted to withdraw the amount. J.B. KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. vsv