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 11TH JUNE 2009 / 21ST JYAISHTA 1931 MACA.No. 271 of 2003() ---------------------- OPMV.825/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- P.D.DEVASSIA, S/O. DEVASSIA, PULIMOOTTIL HOUSE, RAJAKKAD P.O. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S): RESPONDENTS: --------------------------- 1. SUNIL, S/O. JOSEPH, PAYYAPPALIL HOUSE, KANAKALIPADY BHAGOM, VELLAYAMKUDY P.O., KATTAPPANA (VIA). 2. SHAJI M.PAULOSE, KOCHUKUDIYIL HOUSE, KATTAPPANA. 3. THE NEW INDIA ASSURANCE COMPANY LTD., REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTAYAM. SRI.RAJAN P KALIYATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. ```````````````````````````````````````````````````` M.A.C.A. No. 271 OF 2003 D ```````````````````````````````````````````````````` Dated this the 11th day of June, 2009 J U D G M E N T Joseph, J. Appellant is the claimant in a petition filed under section 166 of the Motor Vehicles Act. Aggrieved by the inadequacy of compensation, he maintains the appeal. Learned counsel for the appellant would contend that the income should have been taken at Rs.3,000/- instead of Rs.1,500/- by the Tribunal. It is further contended that the permanent disability has been assessed at 20% but only a lump sum payment of Rs.75,000/- is granted towards permanent disability and it is without reference to the multiplier theory. It is also pointed out that very low amount is given towards loss of amenities. He pointed out the injuries suffered by him. Ext.A5 is the treatment certificate. Ext.A5 shows that the appellant suffered the following injuries. “ 1. Lacerated crush injury on the right elbow. MACA.271/03 : 2 : 2. Lacerated injury on the right hand. 3. Communited fracture of the lower end of the right humorus and upper end of the right ulna and the head of the 4th metacarpel. 4. Fracture of the radial styloid.” 2. It is stated in the impugned judgment that the appellant was treated as an inpatient for 36 days. It is also pointed out that Ext.A6 shows that more than two years after the accident he was treated as an outpatient at the Medical College Hospital, Kottayam. 3. As far as the income is concerned, the appellant has produced Ext.A9 which is a copy of the registration certificate showing that he was a registered C-class contractor. When he was examined as PW1, he stated that at the relevant time he had entered into or proposed to enter into 12 agreements with the Minor Irrigation Department. The court took the view that apart from his interested testimony there is nothing to prove his allegation. The court also found that he cannot be treated as a full time contractor nor can he claim as an agriculturist. Therefore, the court took the income at Rs.1,500/-. The accident took place in MACA.271/03 : 3 : 1996. Having regard to the evidence adduced, we can safely take the income of the appellant as Rs.1,800/- which means the appellant would be entitled to Rs.600/- towards loss of earning for two months. We think that having regard to the nature of the injuries the appellant should be granted a sum of Rs.5,000/- towards loss of amenities. Further we note that though the Doctor was not examined, certificate was produced and it shows that there was a permanent disability at 20%. He suffered communited fracture and also fracture of the radial styloid. We also note that Ext.A6 shows more than two years after the accident he had to be treated as an outpatient. Of course, the Tribunal found that the nature of his complaint is not known. The Tribunal took the view that Ext.A12 certificate is found to be not issued in its capacity as a member of the medical board and that it was assessed on the assumption that the appellant is a farmer by occupation. We would think that we can award a further sum of Rs.5,000/- more under the head of disability without resorting to the multiplier theory in the facts of this case. Accordingly, the appeal is partly allowed and the appellant is MACA.271/03 : 4 : allowed to realise Rs.10,600/- rounded to Rs.11,000/- more with 7.5% interest from the date of the petition till the date of realisation from the respondents. Sd/- (K.M.JOSEPH, JUDGE) Sd/- (M.L. JOSEPH FRANCIS, JUDGE) aks // True Copy // P.A. to Judge MACA.271/03 : 5 : K.M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. `````````````````````````````````````````` M.A.C.A. No. 271 OF 2003 D `````````````````````````````````````````` J U D G M E N T 11th day of June, 2009