IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 MFA.NO. 1256 OF 2000() ---------------------------------- (AGAINST O.P(MV) NO.864 OF 1996, MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM) APPELLANT(S) - PETITIONER: -------------------------------------- MOHAMMED FIROSE, S/O. USMAN, AGED 25 YEARS, KEEDATH HOUSE, ALAMALLUR POST, MANNARKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.O.P.NANDAKUMAR SRI.V.A.AJAI KUMAR SMT.T.THANKAM RESPONDENT(S) - RESPONDENTS: -------------------------------------------- 1. KURUKKAL KHADER, S/O.MOIDUTTY HAJI, AGE NOT KNOWN, PADINJAREPALLA, PAYYANEDAM POST, MANNARKKAD. 2. UMMER, S/O. MOOSA, AGED 27 YEARS, PUTTANIKKADAN HOUSE, ARAKKUPARAMBU AMSOM, PUTHOOR DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. ADV. SRI.PMM.NAJEEB KHAN FOR R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY, Ag. C.J. & THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = = = M.F.A. No.1256 of 2000 = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 18th day of December, 2008 J U D G M E N T ---------------------- Thomas P. Joseph, J. In a motor accident that occurred on 29.7.1995 appellant, then a student aged 21 years sustained serious injuries. He alleged that while he was riding on the pillion of the motor cycle, Autorikshaw driven by the second respondent, owned by the first respondent and insured with the second respondent respectively, hit the motor cycle causing injuries to him. Tribunal accepted his contention that accident occurred due to the rashness and negligence of the second respondent. But as against a claim for Rs.7,00,000/-, Tribunal awarded a total sum of Rs.2,13,600/- with interest at the rate of 9% per annum from the date of application till realisation and cost of Rs.2,500/- from respondents 1 to 3. Claiming enhanced compensation, appellant has preferred this appeal. 2. Heard counsel for appellant and contesting respondent. 3. Point for consideration is whether appellant is entitled to get enhanced compensation. 4. Perused relevant records. M.F.A. No.1256 of 2000 -: 2 :- 5. The Point: Appellant was a second year B.A. student at the time of accident. He claimed that in his spare time he used to engage himself in profitable work like rubber tapping, giving tuition to students, Antina fitting, etc., and was earning at the rate of Rs.5,000/- per month. On that claim there was only his version as P.W.1 which the Tribunal was not inclined to accept. For the purpose of assessment of compensation, his notional income was taken as Rs.1,500/- per month. It is contended by the counsel for appellant that there was no reason to disbelieve the version of appellant as P.W.1 6. It is true that appellant did not produce documentary evidence to support his claim regarding monthly income. At the same time, we are not impressed by his contention that he was earning at the rate of Rs.5,000/- per month. Appellant was aged 21 at the relevant time and considering his age, educational qualification and the possible earnings which he could make by doing some work during his spare time, we are inclined to think that his monthly income should have been taken as Rs.2,000/-. In holding so we also take into account the service he was rendering in his family which also can be valued in terms of money for assessment of compensation. 7. Exhibit A4 is the copy of wound certificate and Exhibit A6 M.F.A. No.1256 of 2000 -: 3 :- series are the discharge summary. Evidence revealed that appellant suffered the following injuries: (1) contused lacerated wound 3” front of left knee, (2) Abrasion over right ear, right elbow, right forearm and right knee; and (3) Abrasion over right glutel region. X-ray examination revealed compound fracture of both bones of left leg. He underwent inpatient treatment at Al-Shifa hospital at Perinthalmanna and Kovai Medical Centre, Coimbatore. Exhibit A6 states that it was a type-I compound fracture on both bones of left leg. He was treated with wound debrediment and K-nailing. He underwent inpatient treatment at Al-Shifa hospital from 29.7.1995 till 16.8.1995 and was discharged with 'AK' plaster cast. He was admitted in Kovai Medical Centre with infected non-united fracture of left leg. There, he was treated with cutaneous flap cover with fibular osteotomy. K-nail was removed and ilisarov fixator was applied on 17.1.1996. After skin grafting and other treatment, he was discharged on 29.1.1996. Again he was admitted in that hospital on 22.3.1996 for follow-up treatment and was discharged on 27.3.1996. He underwent bone grafting on tibia during that time. Evidence revealed that at different M.F.A. No.1256 of 2000 -: 4 :- intervals appellant underwent inpatient treatment for 66 days. Exhibits A7 and A23 are medical certificates produced by the appellant to prove his disability. Those medical certificates are issued by P.W.2. Permanent disability of the appellant is certified to be 38.7.%. 8. Tribunal found that appellant suffered loss of earnings for a period of 7 months and at the rate of Rs.1,500/- per month, awarded Rs.10,500/- as compensation. We have fixed the monthly income of the appellant at Rs.2,000/-. Thus he is entitled to get compensation for loss of earnings for the said period of 7 months at the rate of Rs.2,000/- per month which brings the amount payable to Rs.14,000/- and less Rs.10,500/- already awarded, appellant is entitled to get Rs.3,500/- more on that count. 9. It is contended by counsel for appellant that though evidence revealed that appellant has 38.7% disability, Tribunal has not accepted Exhibit A7 and A23 and instead, awarded a lump-sum of Rs.45,000/- as compensation for disability and consequent loss of earning power. We find from paragraph 28 of the award that as against Exhibits A7 and A23, Tribunal took a lesser percentage of whole body disability and awarded Rs.45,000/- as compensation on that count. 10. We have stated the injuries suffered by the appellant. It is not in dispute that he suffered serious injuries. We have also gone M.F.A. No.1256 of 2000 -: 5 :- through the certificate of disability, dated 14.4.2000. There, it is stated that it is a case of post traumatic sequelace (fracture of both bones of left leg) and that appellant is physically handicapped to the extent of 38.7%. But we also note that sufficient datas are not given in the said certificate. At the same time, in considering whether the percentage of disability can be accepted, regard has to given to the injuries suffered and the treatment undergone by the appellant which we have already referred to. Considering these aspects and also taking into account the certificates produced by the appellant, we are inclined to think that the whole body permanent disability of the appellant can be fixed as 20%. We do so. Since appellant was 21 years at the time of accident, appropriate multiplier to be taken as per the second schedule of the Motor Vehicles Act is '17'. That brings the compensation payable for disability and loss of earning power to Rs.81,600/- ([2000x12x17x20/200]) and less the sum of Rs.45,000/- awarded, additional compensation payable on that come is Rs.36,600/-. 11. It is contended by the counsel for appellant that compensation awarded on other counts are also on the lower side. We have gone through the award and the evidence on record. It is seen that on all other counts, Tribunal has awarded compensation which in our view is just and fair. All relevant factors have been taken into M.F.A. No.1256 of 2000 -: 6 :- account in awarding compensation under those counts which require no interference. Thus the additional compensation payable to the appellant is Rs.40,100/- which will carry interest at the rate of 7.5% per annum from the date of application till realisation. Resultantly, this appeal is allowed in part. Appellant is allowed to realise over and above the compensation awarded by the Tribunal, a sum of Rs.40,100/- (Rupees forty thousand one hundred only) with interest at the rate of 7.5% per annum from the date of application till realisation from respondents 1 to 3, jointly and severally. Third respondent being the insurer of the offending vehicle is directed to deposit the said amount in the Tribunal. On deposit, appellant is permitted to withdraw the same. J.B. KOSHY, ACTING CHIEF JUSTICE . THOMAS P.JOSEPH, JUDGE. vsv