IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 9TH JULY 2008 / 18TH ASHADHA 1930 MFA.No. 407 of 2003() --------------------- (AGAINST THE AWARD DATED 23/11/2001 IN OPMV.3630/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM) .................... APPELLANT: PETITIONER: ---------------------- M.K.SIVADAS, AGED 49 YEARS, SON OF KOCHUMADHAVAN, NAMBOOTHIRIPARAMBU, PALACE WARD, ALAPPUZHA-688 011. BY ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. NITHYA K RESPONDENTS: RESPONDENTS 1 AND 3: --------------------------------- 1. MR.V.K. IBRAHIM, THOPPIL HOUSE, ELOOR NORTH, UDYOGAMANDAL, ERNAKULAM DISTRICT. 2. UNITED INDIA INSURANCE CO. LTD., ERNAKULAM. BY ADV. SMT.K.C.BEENA FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ. ------------------------- M.F.A. No. 407 of 2003 --------------------------------- Dated, this the 9th day of July, 2008 J U D G M E N T Ramachandran Nair, J. Heard learned counsel for the appellant and learned standing counsel for the Insurance Company. 2. The appellant was hit by a lorry while he was standing on the road side engaged in work. He was in the hospital for 46 days for treatment. MACT found that lorry driver caused accident and the insurer is liable to pay the compensation. We find that the Tribunal has granted compensation under various heads in terms of the claim except in regard to the claim for disability and consequent loss of earning capacity. Even though medical certificate was produced to substantiate disability, the MACT found that the Doctor was not produced and consequently the Insurance Company was denied an opportunity to cross-examine the Doctor and to test the correctness of the certificate. Learned counsel claims that the appellant was referred to Medical Board and the Medical Board gave a report and the same is not seen considered by the MACT. Learned counsel produced a copy of the Medical Board report in this M.F.A.No.407/2003 -2- Court, wherein the Medical Board has estimated disability of 70%. Even though, the nature of injuries are generally stated, we find the report is quite scanty and wanting any details. Even though we gave an opportunity to the appellant to present in Court and to explain the nature of disability he had, he has not appeared in Court. However, we do not think the appeal should be kept pending. The accident occurred on 14/10/1994. Therefore, we proceed to dispose of the same based on the available materials including the Medical Board report produced by the learned counsel in Court. 3. The findings of the MACT is that the appellant would have been disabled for work only for three months and consequently compensation was awarded for loss of employment. The appellant has not put up a case that he was disabled for longer period or was unable to continue the work, even when he was examined before the Tribunal. Apparently, the Tribunal also has not noticed any major disability for the appellant, who gave evidence before the Tribunal. However, since he was hospitalised for 46 days and having regard to the findings in the medical report, we feel there is certain amount of temporary disability. Consequently, we increase M.F.A.No.407/2003 -3- the compensation towards disability and consequent loss of earning capacity from Rs.5,000/- to Rs.50,000/-. The award will stand modified with this enhancement. The Insurance company will deposit the additional compensation with interest @ 7.5% from date of application to date of deposit. The M.F.A. Is disposed of as above. (C.N.RAMACHANDRAN NAIR, JUDGE) (V.K.MOHANAN, JUDGE) jg