IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 MACA.No. 1520 of 2005(D) ----------------------- OPMV.1329/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER. ----------------------------------- YONACHAN, S/O.MATHAI, AGED 33, RESIDING AT CHEMBANKUZHIYIL HOUSE, RAKKADU, MEKKADAMPU P.O. VALAKOM VILLAGE, MUVATTUPPUZHA. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI RESPONDENT(S): RESPONDENTS. --------------------------- 1. C.X.JOHN, CHINNIKKARA HOUSE, DEVALOKAM P.O. KOTTAYAM. 2. ABY JACOB, S/O.JACOB, ONATTU HOUSE, THAZHATHANGADY, VELOOR, KOTTAYAM. 3. THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, NO.2. TRIO CHAMBERS, KANJIKUZHY. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - M. A. C. A. NO: 1520 OF 2005 - - - - - - - - - - - - - - - - - - - - - - -- Dated this the 2nd Day of June, 2009. JUDGMENT Joseph J. The appellant is the claimant in the case filed under Section 166 (1) (a) of the Motor Vehicles Act. This appeal is filed by the claimant aggrieved by quantum of compensation awarded. The accident occurred in 10.5.2001. 2. We heard the learned counsel for the appellant, Adv. Smt. M U Vijayalakshmi and the Senior Counsel for the Insurance Company, Adv. Sri. Mathews Jacob. 3. The learned counsel for the appellant pointed out that that the income fixed by the Tribunal is inadequate. She also points out that the appellant is entitled to income based on Ext.A 14 Series which are Income Tax return (Saral). 4. Tax return relates to the period 1999-2000. Therein the income was shown as Rs.63,702/- . Ext. A15 is M. A. C. A. NO: 1520 OF 2005 : 2 : a copy of the income tax return for the assessment year 2001- 02, in which the income from his business is Rs.40,615/- The Tribunal has taken his income as Rs.4,000/- on the basis of average income. Having regard to the materials available, we cannot say that the income taken at 4,000/- per month in the year 2001 is un reasonable. We reject the said contention. 5. It is contended that in Ext. A9 certificate, the percentage of his disability as 22%. The certificate shows that the injured was seen working with limp on right leg and that there was shortening of leg by 1cm. Knee flexion was only 90 degree and extension of wrist was reduced by 25%. X-ray showed mal Union of tibia and fibula. Resultant orthopaedic, disability was assessed at 16%. The certificate shows that the patient has difficulty in chewing due to fracture of maxilla. zygoma, ethmoid sinus and loss of one tooth and so the disability was assessed at 7.5%. The difficulty in chewing is not likely to affect the occupation of the petitioner. The M.A. C. A. NO: 1520 OF 2005 : 3 : disability sustained by him is not likely to affect the earning capacity of the petitioner as a PWD contractor. 5. When we went through the certificates we saw that the Medical board has provided to state that there was a medical amputation on his right leg. 7. We put it to the learned counsel for the appellant. Learned counsel for the appellant would herself say that actually there is no amputation. We are at a loss to understand how the Doctor said so. The appellant has a total disability of 22%. Considering the gravity of injury sustained and duration of hospitalization, it is not found that as he may be fully prevented from the earning capacity. We also notice that the learned senior counsel for Insurance Corporation would point out that X-ray shows uniting of his fracture and it is without waiting for a lapse of reasonable period of time that M. A. C. A. NO: 1520 OF 2005 : 4 : Ext.9 certificate is issued and too fixing the percentage of 22%. But we see that the X-Ray showed mal Union of tibia and fibula. We think that total amount of Rs.10,000/- more can be awarded under this head. We think that no further enhancement is necessary. 8. The appeal is partly allowed that the appellant is further awarded an amount of Rs.10,000/- more which will bear an interest of Rs.7.5% from the date of petition till the date of realisation. K.M.JOSEPH, JUDGE. M. L. JOSEPH FRANCIS, JUDGE. dl