IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 MACA.No. 1171 of 2005(A) ------------------------ OPMV.445/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER. ----------------------------------- MURUKAN, S/O.PAPANASAM, AGED 33 YEARS, HOUSE NO. GP III/45, KOTTAKKULAM BHAGAM, AMRAYOOR KARA, MARAYOOR VILLAGE. BY ADV. SRI.K.J.KURIACHAN SMT.P.P.STELLA RESPONDENT(S): RESPONDENTS. --------------------------- 1. AFSAL, S/O.MUHAMMED, NADAYIL HOUSE, T.M.C. PUMP BHAGAM, KAVUMKARA KARA, VELLOORKUNNAM VILLAGE, MUVATTUPPUZHA TALUK. 2. RAMLET, W/O.ISMAILKUNJU, PATTAMAKUDIYIL HOUSE, MUDAVOOR P.O. MUVATTUPPUZHA. 3. THE DIVISIONAL OFFICER, THE ORIENTAL INSURANCE COMPANY LTD., T.N. TOWERS, MARKET TOAD, MUVATTUPPUZHA 686 673. ADV. DR.ELIZABETH VARKEY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.A.C.A.No.1171 of 2005 -------------------------------------- Dated this the 11th day of November, 2008. JUDGMENT Thomas P.Joseph, J. The injured in a motor accident is the appellant before us. While he was travelling on a motor cycle on 28.4.1999, lorry driven by the first respondent, owned by the second respondent and insured with the third respondent hit him. He alleged and, the Tribunal also found that the accident occurred due to the rashness and negligence of the first respondent. He claimed compensation to the tune of Rs.1.5 lakhs. Tribunal awarded compensation of Rs.40,850/- to be realised from the respondents with interest at the rate of 6% per annum from the date of application till realisation. 2. Heard counsel for the appellant and contesting respondent. 3. Point for consideration is whether appellant is entitled to get enhanced compensation. 4. Perused copy of relevant documents. MACA No.1171/2005 2 5. The Point. Appellant, a daily labourer was aged 24 years at the time of accident and claimed that his monthly earnings then was Rs.3,000/-. Tribunal however, fixed the notional income of the appellant at Rs.1,500/- per month. It it contended by the learned counsel that monthly income fixed is low. It is also contended that compensation awarded on all counts are also low. 6. It is stated that appellant was aged 24 years at the time of accident. It is not disputed that he is a labourer by occupation. Though no documentary evidence is produced to prove the monthly income, considering the wages payable to unskilled workers in Kerala during the relevant time and considering the age of the appellant as well as the fact that he was maintaining a family by his labour, we are inclined to think that he would have got atleast Rs.100/- per day for 25 days in a month which brought his monthly income to Rs.2,500/-. Hence his monthly income at the relevant time is fixed as Rs.2,500/-. 7. Documents produced by the appellant before the Tribunal revealed that he sustained the following injuries:- 1. Compound communited fracture of right humerus. 2. A cut injury on the left ear. MACA No.1171/2005 3 Appellant underwent surgery and bone grafting. Tribunal awarded loss of income for a period of 15 days at the rate of Rs.1,500/- per month which, we are of the opinion is meagre. Considering the nature of injuries suffered by the appellant and the nature of treatment, though his inpatient treatment was only for a day, we are inclined to think that he could not have worked atleast for a period of three months and suffered loss of earnings during the said period. Compensation payable on that count comes to Rs.7,500/- (Rs.2,500x3) and less the sum of Rs.750/- awarded by the Tribunal, the additional compensation payable is Rs.6,750/-. 8. Ext.A5 is the certificate of disability issued by the Medical Board attached to the Taluk Head Quarters Hospital, Thodupuzha certifying the permanent disability of the appellant at 25%. Tribunal did not accept Ext.A5 but, fixed the disability at 10% and taking '18' as the multiplier, awarded Rs.27,000/- as compensation for disability and loss of earning power, taking the monthly income for the purpose of assessment of compensation at Rs.1,250/- [(Rs.1,250x12x18x10)/100]. 9. We have gone through the copy of Exts.A5 and A6 provided by the counsel for appellant. In Ext.A6, it is stated that appellant had suffered compound communited fracture of right humerus, had undergone surgery twice for internal fixation of fracture and bone grafting for the fracture. It is reported in Ext.A6 that there is evidence of non-union of fracture clinically and radiologically . In Ext.A5, it is also stated that there is non-union of fracture with MACA No.1171/2005 4 shortening of 2” of right upper arm and that there is gross limitation of movement of right shoulder. The percentage of disability due to the above is assessed at 25%. But, we find from Ext.A5 that the extent of limitation of movement of right arm is not given. It is only stated that there is gross limitation of movement of the right shoulder. In the circumstances we are unable to accept the recommendation contained in Ext.A5 in its entirety. But we take into account the fact that appellant is a labourer and is required to do hard work. There is limitation of movement of the right shoulder as certified in Ext.A5 and considering the nature of injuries which we have stated above, that possibility cannot be ruled out. Considering all these aspects, we are of the view that the extent of disability which the appellant is suffering can be fixed as 15% for the whole body. Appellant is entitled to get compensation on that basis. We have fixed the monthly income of the appellant at Rs.2,500/-. Thus, appellant is entitled to get Rs.81,000/- as compensation for disability and loss of earning power [(Rs.2,500x12x15x18)/100], and less the sum of Rs.27,000/- awarded by the Tribunal, additional compensation payable on that count comes to Rs.54,000/- 10. Though counsel requested us to interfere with the compensation awarded on other counts as well, on giving an anxious consideration of that request and considering the amount awarded on those counts and also considering all other relevant factors, we are not persuaded to accept that request as we are satisfied that compensation awarded on those counts are MACA No.1171/2005 5 just and fair. Thus the additional compensation payable to the appellant is Rs.60,750/-. Appellant will get interest at the rate of 7.5% per annum from the date of application till realization. Resultantly, this appeal is allowed in part. Over and above the compensation awarded by the Tribunal, appellant is allowed to realize a further sum of Rs.60,750/- (Rupees Sixty thousand, seven hundred and fifty only) with 7.5% interest per annum from the date of application till realization from respondents 1 to 3, jointly and severally. Third respondent being the insurer of the vehicle is directed to deposit the said amount in the Tribunal. On deposit, appellant is permitted to withdraw the same. J.B.KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. cks