IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 MACA.No. 1642 of 2006(C) ------------------------------------ (AGAINST THE JUDGMENT DATED 13.9.2005 IN OPMV.1571/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S)/PETITIONER: ---------------------------------------- SAMUKUTTY @ SAMKUTTY KURIAN S/O.KURIAN,VARIKAT HOUSE,KOCHARA P.O.,KARUNAPURAM VILLAGE,UDUMBUNCHOLA TALUK. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPONDENTS 1 AND 2 IN OP(MV) ---------------------------------------------------------------------------- 1. SRI.D.SREERANGAN,S/O.DORESWAMY, RAJ TRANSPORT,BANUMAIAH CHOWK, MYSORE-1. 2. THE NATIONAL INSURANCE CO. LTD., GOBI BRANCH OFFICE,7 , RAJA STREET, PIN-638 476. R2 BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE & SRI.P.JACOB MATHEW FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ M.A.C.A.No.1642 of 2006-C ---------------------------------------------- Dated, this the 25th day of June, 2009 J U D G M E N T Joseph, J. Appellant is the petitioner in a petition filed under Section 166 of the Motor Vehicles Act. The Tribunal has awarded a sum of Rs.1,66,428/- as against the claim for Rs.5 lakhs. We heard the learned counsel for the appellant and the learned counsel for the Insurance Company. 2. The accident took place on 12.3.1998. The appellant was aged 28 years at the time of the accident. According to him he was a driver. The learned counsel for the appellant would contend that the appellant was in the Medical Trust Hospital for 54 days. Learned counsel contends that the Tribunal has erred in taking the income of the appellant as Rs.1,500/- per month. He would submit that there is evidence to show that the appellant was earning Rs.100/- per day. Further, he would submit that the doctor has certified disability at 31.62%. But, without giving any reason the MACA 1642/2006 -2- Tribunal has reduced it to 25%. Learned counsel would also submit that the appellant is not in a position to carry on the vocation as a result of the injury suffered in the accident. 3. As far as the income of the appellant is concerned we would think that having regard to the date of accident and the nature of work we can safely fix the income as Rs.1,800/- per month. This means that the appellant is entitled to Rs.1800/- more towards loss of earning. 4. The second question to be considered is regarding the amount awarded towards the disability. The appellant has sustained 4 lacerated wounds, abrasion fracture dislocation contusion, closed fracture right hip etc. Pw2 doctor has assessed permanent disability at 31.62%. The doctor has noted that functionally he is having difficulty to impart weight to right lower limb, for proper walking, for brisk walking and to take quick steps, to squat properly, to climb up and getting down steps, to sit legs crossed, to keel down to do manual labour, to stamp toes right side to ground, to hold carry objects with right hand to raise objects and to drive any sort of vehicles. Only stating that the appellant has not MACA 1642/2006 -3- sustained the disability as mentioned in the certificate the Tribunal has reduced the disability to 25%. The appellant has read out the evidence tendered by him. We think that in the above circumstances the Tribunal should have fixed the percentage of disability at 28%. On the basis of the fixation of the percentage of disability at 28% and taking the income as Rs.1,800/- per month the appellant would be entitled to a sum of Rs.27,864/-. We also feel that having regard to the fact that the appellant is having difficulty for proper brisk walking, to squat properly, to climb up and to get down steps to sit legs crossed, to keel down, to stamp toes right side to ground the appellant should be awarded a further sum of Rs.5,000/- towards loss of amenities. Accordingly, the appellant would be entitled to a total sum of Rs.34,664/- which is rounded as Rs.35,000/-. The learned counsel for the appellant also complains that the rate of interest is fixed at 6%. We feel that the rate of interest should have been fixed at 7.5%. Accordingly, the appeal is partly allowed and the appellant is allowed to realise Rs.35,000/- more with 7.5 per cent interest from the date of the petition till the date of MACA 1642/2006 -4- realisation from the second respondent. The appellant is also entitled to interest at 7.5% on the amount already awarded by the Tribunal from the second respondent. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS