IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 MFA.No. 557 of 2003(F) ---------------------- OA.30/2002 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT: APPLICANT: ----------------------------- R.K.DILEEPKUMAR @ DILEEP, S/O. R.K.KANNAN, ORUVINTAVIDA HOUSE, CHARODE P.O., BADAGARA, KOZHIKODE - 673 106. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT: RESPONDENT: ---------------------------------- UNION OF INDIA OWNING SOUTHERN RAILWAY, REPRESENTED BY GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI - 3. ADV. SRI.VARGHESE P.THOMAS, SC, RAILWAYS THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. B. KOSHY & K. P. BALACHANDRAN, JJ. ------------------------------------------------ M. F. A. No.557 of 2003 ------------------------------------------------ Dated this the 13th day of October, 2008 JUDGMENT Koshy, J The appellant/petitioner while travelling in Train No.6602 Mangalore-Chennai Mail sustained serious injuries as a result of the train accident happened at Kadalundi. He sustained unicortical fracture of (R) Tibia, soft tissue injury (R) leg and solens muscle flap done. The Tribunal considered the injuries and awarded Rs.80,000/-. The findings are in para No.7 of the award passed by the Tribunal which are as follows:- “Therefore, the testimony of PW1 and the documents, viz. Exts.P2, P3, P4, P6 & P7 prove that the applicant has sustained Unicortical fracture (R) tibia, soft tissue injury (R) leg and solens muscle flap done. However, only Unicortical fracture (R) tibia comes under Schedule (at item 33) to Rule 3 of Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 1997, for which the compensation is Rs.40,000/-. But considering the gravity of the injuries, we are of the opinion that a sum M. F. A. No.557 of 2003 -2- of Rs.80,000/- will meet the ends of justice.” 2. The contention of the appellant is that the wound on the leg is not yet healed and the appellant is not able to attend to his work. Ext.P3 Discharge Certificate issued from the Directorate of Medical Education, Kerala also states 'Unicortical fracture (R) tibia with soft tissue injury'. In the Treatment Certificate, Ext.P4, issued by MCH, Calicut also states 'Unicortical fracture (R) tibia, soft tissue injury (R) leg and solens muscle flap done'. Ext.P6, Disability Certificate issued from MCH on 02/11/01 states that the applicant's temporary disability due to the above is 30%, but Ext.P7, Disability Certificate dt.01/11/2002 issued from MCH states that the applicant has 10% permanent disability due to the above. It has also stated that now he walks without support; he is discharging sinus on the medial side of M. F. A. No.557 of 2003 -3- tibia; the grafted skin is insensitive and knee flexion is restricted to 110 degrees and the ankle movements are terminally restricted. 3. According to the claimant, even though there was no amputation, his leg has become useless because there is no sensitivity and continuous sinus discharge. Wounds are not healed even now and there is discharge of pus even now. For amputation below knee with stump exceeding 3-1/2” but not exceeding 5” compensation payable is Rs.2,00,000/-. It is true that for fracture of tibia Rs.40,000/- was granted. That was only a scheduled injury. But calculation of compensation awarded by the Tribunal for other injuries are inadequate even though Tribunal found that other injuries are also scheduled. Since there is no amputation, even if the leg has become useless, compensation of Rs.3,60,000/- as per M. F. A. No.557 of 2003 -4- item No.16 of the Schedule cannot be granted as if there is amputation of the leg. The Tribunal has to grant compensation for injuries other than an injury specified in the Schedule or referred to in sub-rule (2) resulting in pain and suffering after taking into consideration the medical evidence, besides other circumstances of the case determine to be reasonable as can be seen from Rule(3) of the Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 1997. The total compensation to be granted to such nonscheduled injuries together shall not exceed Rs.80,000/- and total compensation to be granted in respect of any one person shall not exceed Rs.4,00,000/-. Tribunal itself has found that the injuries are very grievous. Considering the nature of the injuries and considering the fact that even now there is M. F. A. No.557 of 2003 -5- insensitivity, we are of the view that for all the injuries other than the scheduled injuries, Rs.60,000/- ought to have been granted. Therefore, the additional amount payable will be Rs.20,000/-. The above Rs.20,000/- should be paid by the respondent to the appellant with 7.5% interest from the date of application till its payment over and above the amount decreed by the Tribunal. 4. This appeal is thus, allowed in part. J. B. KOSHY JUDGE K.P.BALACHANDRAN, JUDGE kns/-