IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 MACA.No.125 of 2003 (D) ------------------------------ OPMV.88/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER ------------------------------ P.B.MOHAMMED S/O. BAVA, PANATTIL HOUSE, NELLIKUZHI P.O., ELAMBRA KARA, KOTHAMANGALAM BY ADV. SRI.SIBY MATHEW SMT.ANNIE PAUL RESPONDENTS: RESPONDENTS ------------------------------------ 1. RAMA WARRIER, SANTHI BHAVAN, KUTHUKUZHI.P.O., KOTHAMANGALAM. 2. R.VIJAYAKUMAR S/O. RAM WARRIER, SANTHI BHAVAN, KUTHUKUZHI P.O., KOTHAMANGALAM. 3. THE BRANCH MANGER, THE ORIENTAL INSURANCE COMPANY LTD., CHURCH VIEW JUNCTION, KOTHAMANGALAM. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.A.C.A.No.125 of 2003 --------------------------------- JUDGMENT Balachandran, J. Appellant, while riding a motor cycle along the Aluva-Munnar road on 6.12.1998, was hit down by a Jeep bearing Reg.No.KL-11/B 319 driven by the second respondent, owned by the first respondent and insured by the third respondent. He sustained fracture of both bones of his right leg. According to the appellant, the accident occurred solely on account of the negligence of the second respondent, who was driving the jeep. He claimed a total compensation of Rupees Five lakhs, against which the Tribunal awarded only an amount of Rs.2,02,800/-. In this appeal, the only claim is for enhancement in compensation and hence we are considering that aspect alone. 2. Exhibit A6 shows the details of the injuries sustained to the appellant, which includes MACA 125/03 2 compound fracture of both bones of right leg. Exhibit A7 discharge certificate shows that he was admitted in the hospital on 6.12.1998 and was discharged on 28.12.1998. During that period wound debridement was done. Exhibit A8 treatment certificate shows that he was re-admitted in the hospital on 1.1.1999, 23.1.1999, 26.4.1999, 29.5.1999, 10.8.1999 and 5.9.1999 for further treatment and Exhibit A9 indicates that it was a case of infective non-union of the fractured bones. Exhibit A12 shows that bone grafting, etc. were done on 5.6.1999 and further surgery was conducted on 20.7.1999. Exhibit A13 disability certificate issued by an Orthopaedic Surgeon on 15.9.2001 shows that there is shortening of the right leg by 2 cm.; that the appellant is not able to squat properly and that there is wastage of thigh muscles and the doctor has assessed the disability to whole body at 17%. Exhibit A14 further showed that the appellant was admitted in the hospital on 12.4.2000 for MACA 125/03 3 removal of ring fixator and was discharged on 24.5.2000. 3. Appellant was a contractor deriving a monthly income of Rs.6,000/-, according to him. Exhibit A17 is the copy of licence, which shows that the appellant was registered as a 'C' Class contractor. Exhibit A16 is the copy of income tax clearance certificate. It shows that the appellant was assessed for a sum of Rs.30,300/- during the year 1998-99. Appellant had claimed only an amount of Rs.7,500/- for loss of earnings and therefore, the Tribunal has awarded only Rs.7,500/- on that count. The treatment records mentioned above revealed that from 6.12.1998 up to 25.4.2000 the appellant continued the treatment with hospitalisation on several occasions in between. It was a fit case, therefore, to award him loss of earnings at least for six months. After observing that the appellant was assessed for a taxable income of Rs.30,300/- for 1998-99 as per Exhibit MACA 125/03 4 A16 and for Rs.41,280/- for the year 1997-98, the Tribunal has proceeded to assess the annual income of the appellant only at Rs.24,000/-. The appellant is a contractor aged about 35 years and considering the income for the years 1997-98 and 1998-99, the Tribunal should have accepted at least Rs.3,000/- as his monthly income. The appellant being aged about 35, the apt multiplier is 16. Consequently, towards permanent disability and loss of earning power, on account of 17% whole body permanent disability, the appellant should have been awarded a sum of Rs.97,920/- (3000 x 12 x 17/100 x 16). But the Tribunal has awarded only Rs.60,000/-. Hence, towards loss of earnings, the appellant would be entitled to a further amount of Rs.10,500/- (18,000 - 7,500) and towards compensation for permanent disability and loss of earning power, the appellant is entitled to a further sum of Rs.37,920/- (97,920 - 60,000). Thus, the appellant is entitled to an additional MACA 125/03 5 amount of Rs.48,420/- more by way of compensation. Though it is urged that the compensation granted under other counts are also meagre, we are of the opinion that just and reasonable compensation has been awarded under other heads. The above amount of Rs.48,420/- should be deposited by the third respondent Insurance Company within two months from today with interest at 7% per annum from the date of application till its deposit. On such deposit, the appellant is allowed to withdraw the same. Appeal is, thus, allowed in part. (J.B.Koshy, Judge) 16th October, 2008 (K.P.Balachandran, Judge) tkv MACA 125/03 6 J.B.Koshy & K.P.Balachandran, JJ. -------------------------- M.A.C.A.No.125 of 2003 -------------------------- JUDGMENT 16th October, 2008