IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 MACA.No.8 of 2006 (A) --------------------------- OP(MV).2654/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR. .................... APPELLANT/PETITIONER MVOP. -------------------------------------- MUKUNDAN, S/O.CHARUPANICKER, VADAKOOT HOUSE, P.O.MURIYAD, ANANDAPURAM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.U.O.JOSE RESPONDENTS: RESPONDENTS. ------------------------------------- 1. JOSEMANY @ KUNJUMON, S/O.JOSE, KALLUPARAMBIL HOUSE, POOTHOLE, THRISSUR. 2. THE UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, THRISSUR. BY ADV. SRI.P.JAYASANKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. B. KOSHY & K. P. BALACHANDRAN, JJ. ------------------------------------------------ M. A. C. A No.8 of 2006 ------------------------------------------------ Dated this the 16th day of September, 2008 JUDGMENT Balachandran, J Claimant in O.P.(MV) No.2654/2000 on the file of the Motor Accidents Claims Tribunal, Thrissur is the appellant. He sustained injuries while riding motorcycle on 09/11/99 having been hit down by an autorikshaw owned and driven by the first respondent and insured by the second respondent. He sustained fracture of ankle (right), fracture lateral malleolus 2nd and 3rd , head injury and left Fronto temparo parietal acute subdural hamatroma. The bone flap was removed and right eye sight is impaired. He was aged 30 years at the time of the accident and was doing wholesale business in bakery and according to him he was earning a monthly income of M. A. C. A No.8 of 2006 -2- Rs.10,000/-. He claimed in all an amount of Rs.7 lakhs by way of compensation for the injuries sustained. But the Tribunal awarded only an amount of Rs.2,87,000/- and hence, this appeal claiming enhancement of amount. 2. The only question to be considered in this appeal is the sufficiency of quantum of damages awarded. Ext.A2 is copy of Wound Certificate and Tribunal has observed that injuries noted therein are consistent with the injuries alleged. Ext.A9 is the discharge summary. The appellant was under treatment as inpatient from 09/11/99 to 23/11/99. It showed that the appellant was brought over to the hospital in deeply altered sensorium with G.C.S=E1 V1 M2 dilated fixed pupils, EOMS frozen; that the bone flap was removed and that post operatively he was ventilated for 72 hours. Even after the wound was healed and the appellant became conscious there was recent M. A. C. A No.8 of 2006 -3- memory loss and nominal dysphasia. Ext.A10 CT scan report showed further that there was massive subdural haematoma with fracture of the left frontal bone with strong possibility of transtenorial herniation. Ext.A11 is the treatment certificate subsequent to re- admission on 31/03/2000 and operation on 01/04/2000. Ext.A12 certificate from Aravind Eye Hospital certifies the defect caused to the eye and Ext.A13 series are prescriptions by eye specialist. Ext.A14 is record regarding dental treatment. Ext.A17 certificate by eye specialist of the District Hospital, Thrissur showed that the appellant is having 40% visual disability. Ext.A18 disability certificate issued by Orthopaedic surgeon of Medical College Hospital Thrissur is certifying to 7% permanent disability. Ext.A19 is certificate by neuro surgeon of Aswini Hospital reporting 10% neurological disability. The date of birth M. A. C. A No.8 of 2006 -4- of the appellant is 15/03/1970 as evidenced by Ext.A20. Ext.A21 certificate showed that the petitioner has undergone course in welding technology and Ext.A22 showed that he was working on work agreement as waiter in UAE for two years from 20/11/93. Ext.A23 series are photographs showing the disfiguration of the head and face of the appellant and the Tribunal has considered all these documents to come to the conclusion that the appellant is having permanent disability of 30% estimating the monthly income of the appellant at Rs.2,500/- and adopting 18 as the multiplier according to the age of the appellant. Compensation for permanent disability was fixed by the Tribunal at Rs.1,62,000/-. 3. It is vehemently contended before us by the learned counsel for the appellant that the appellant sustained very serious injuries; is having neurological disability and visual M. A. C. A No.8 of 2006 -5- disability even at present and is even now undergoing treatment and that his permanent disability should have been taken at least at 50% and that his income also should have been fixed at a reasonably higher amount. 4. The records produced by the appellant before the Tribunal and discussed in detail by the Tribunal shows that the appellant had suffered visual disability, physical disability and neurological disability and that has severely affected his earning capacity. As per Part II of Schedule-I of the Workmen's Compensation Act for loss of vision of one eye without complication or disfigurement of eye ball 30% is the loss of earning capacity statutorily recognized and for loss of partial vision of one eye 10% is the loss of earning capacity so recognized. Over and above that the appellant is having neurological disability and physical M. A. C. A No.8 of 2006 -6- disability and considering all these disabilities which affect the earning capacity of the appellant, it is only proper that his permanent disability is assessed at 40% and compensation is awarded accordingly on the basis thereof. All the same, in the absence of convincing evidence as regards income of the appellant, there is no reason why the income taken by the Tribunal as Rs.2,500/- per month in 1999 when the accident took place is to be taken at any higher amount. Hence, compensation for permanent disability at 40% works out to Rs.2,16,000/- (2500 x 12 x 40/100 x 18). The additional amount payable to the appellant therefore, is Rs.54,000/-. Though it is contended that amounts awarded under other heads are also not sufficient or reasonable, we are of the view that in view of enhancement awarded and taking into account the total compensation so arrived at no further M. A. C. A No.8 of 2006 -7- enhancement is necessary. 5. In the result, we award a further amount of Rs.54,000/- by way of compensation to the appellant in addition to Rs.2,87,000/- already awarded by the Tribunal. The said amount of Rs.54,000/- with interest at 7.5% per annum from the date of application has to be deposited by the second respondent/ Insurance Company within one month from today. On such deposit the appellant shall be entitled to receive the said amount. J. B. KOSHY JUDGE K.P.BALACHANDRAN, JUDGE kns/-