IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 18TH JANUARY 2011 / 28TH POUSHA 1932 MACA.No. 49 of 2005() --------------------- OPMV.1172/2001 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER: -------------------------------------- K.MALINI, W/O.SAJAYAKUMAR, CHAITHANYA, THOTTINUVADAKKU, CHAVARA P.O. KOLLAM, NOW R/A. 9, APPA RAO LAYOUT, YERAYANNAPALAYAM, IST BLOCK, RAMAMOORTHY NAGAR, BANGALORE 16. BY ADV. SRI.K.A.HASHIM RESPONDENT(S): /RESPONDENTS: -------------------------------------------------- 1. P.K.SHANMUGHAN, S/O.KRISHNAN, PUTHENKUDY HOUSE, NELLIKKUZHY BHAGOM, NELLIKKUZHY KARA, ERAMATTOOR VILLAGE, KOTHAMANGALAM. 2. M.A.PAULOSE, CHOICE FOODS, KOTHAMANGALAM. 3. THE ORIENTAL INSURANCE COMPANY LIMITED, KOTHAMANGALAM. 4. ANILKUMAR, S/O.GOPALAKRISHNAN PANICKER, ODAKAL HOUSE, VAZHAPPALLY P.O. CHANGANACHERRY. 5. M.R.THULASIDAS, SENISH MANDIRAM, THURUTHYKARA, VAZHAPPALLY (W) VILLAGE, CHANGANACHERRY. 6. NATIONAL INSURANCE CO.LTD., CHANGANACHERRY. ADV. SRI.A.R.GEORGE FOR R3 SRI.LAL GEORGE FOR R6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/01/2011. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: dmb A.K.BASHEER & P.Q.BARKATH ALI, JJ. -------------------------------------------------- M.A.C.A. No. 49 OF 2005 ----------------------------------------- Dated this the 18th day of January, 2011. J U D G M E N T A.K.BASHEER, J. Appellant was involved in a road traffic accident that occurred on April 12, 2000. She sustained the following injuries:- (1) Comminuted fracture (L) humerus (middle 3rd lower 3rd junction) (2) Lacerated wound forehead Appellant claimed a total sum of Rs.1,75,000/- as compensation from the owner, driver and insurer of the offending vehicle (a mini van) that hit against the car in which the appellant was travelling along with her brother and husband alleging that the accident occurred due to the rash and negligent driving of the Mini Van by its driver. 2. Appellant's case was tried along with other claim petitions filed by the husband, brother etc. Appellant was examined as PW1 and the doctor, who issued Ext.A10 disability certificate was examined as PW3. Exts. A1 to A24 were marked on the side of the claimants. There was no oral or documentary evidence on the side of the respondents. 3. The Tribunal after considering the evidence adduced by the appellant, passed an award in a sum of Rs.53,868/- and M.A.C.A. No. 49 OF 2005 2 directed respondent No.3 herein to indemnify the owner of the offending vehicle. The appellant has come up in appeal challenging the inadequacy of the compensation awarded to her. 4. The Doctor had noticed the following “problems”:- “- Shortening 1 ½ cms (L) arm - Scar on posterior aspect (L) lower arm - Wasting of (L) arm, shoulder muscles - Restriction of movements - (L) elbow - Terminal 200 flexion 150 extension limited - (L) shoulder - Terminal 500 abduction 300 flexion 200 rotation limited - X-ray (L) arm :Union of fracture with 150 anterior medial angulation implants in site” The Doctor certified that the appellant had suffered a permanent disability of 12% in terms of McBride Scale on the basis of the clinical and radiological findings. He also certified that the appellant had undergone open reduction and plate fixation on removal of the plaster cast. After three months, she had undergone physiotherapy for two months. However, the Tribunal awarded only a sum of Rs.12,500/- under the head of disability without assigning any reasons. 5. It may be noticed that the appellant had claimed that she was working as Assistant Manager in a private Company and drawing a monthly salary of Rs.9,000/-. But, the Tribunal reckoned her monthly income as only Rs.2,000/-. She was M.A.C.A. No. 49 OF 2005 3 awarded a sum of Rs.6,000/- for loss of earnings for three months and a sum of Rs.7,500/- under the head of pain and suffering. For loss of amenities she was awarded Rs.4,000/-. 6. After considering the nature of the injuries and particularly the shortening of her left arm, wasting of shoulder muscles, restriction of movements and also the scar on posterior aspect of the lower arm as reveled from Ext.A10 disability certificate, we are satisfied that the appellant can be awarded a sum of Rs.50,000/- under the head of disability. Similarly, for pain and suffering, the appellant is awarded a sum of Rs.20,000/-. For loss of amenities and disfigurement, the appellant shall be entitled to get a sum of Rs.25,000/-. The appellant shall be entitled to get a sum of Rs.10,500/- towards loss of earning for three months, reckoning her monthly income as Rs.3,500/-. Thus she is entitled to get Rs.75,500/- as enhanced compensation. She will also be entitled to get interest at the rate of 7.5% from the date of petition till the date of realisation. A.K.BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. dmb