IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 MACA.No. 2189 of 2006 B ----------------------------------- APPELLANT(S): PETITIONER ---------------------------------------- SRIRAJETH K.M., S/O.P.SREEDHARAN, AGED 21 YEARS, "SREELAKAM", P.O.AROLI, KANNUR-670 566. BY ADV. SRI.ASP.KURUP RESPONDENT(S): RESPONDENTS: ------------------------------------------------- 1. MANAGING DIRECTOR, K.S.R.T.C., THIRUVANANTHAPURAM, (OWNER OF BUS KL-15/3107). 2. SRI.K.K.UMAMAHESWARAN NAMBOODIRI, S/O.MAHESHWARAN NAMBOOTHIRI, KOTTOL KIZHAKKE ILLAM, VAYADU, PARIYARAM, THIRUVATTOOR P.O., (DRIVER OF BUS NO.KL-15/3107). ADV. SRI.K.PRABHAKARAN, SC, K.S.R.T.C. FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- M.A.C.A. NO. 2189 OF 2006 B --------------------------------------------------- Dated this the 11th August, 2009 JUDGMENT K.M. Joseph, J. Appellant is the claimant in a petition filed under Section 166 of the Motor Vehicles Act. As against the claim of Rs. 6 Lakhs, the tribunal has awarded Rs.1,08,750/=. 2. We heard the learned counsel for the appellant and also the learned counsel appearing on behalf of the first respondent KSRTC. 3. Learned counsel for the appellant would point out that this is a case where the tribunal ought to have taken 22 per cent as the disability as it was what was certified by the Medical Board. Instead, the tribunal took only 15 per cent. Secondly, it is contended that the tribunal ought to have awarded more compensation towards disfigurement. Only Rs.5,000/= has been granted. Thirdly, it is contended that the appellant is continuing MACA.2189/06 B 2 with medical treatment. No amount is awarded towards future medical treatment. Lastly, it is pointed out that the rate of interest awarded is on the lower side and only six per cent was granted. Learned counsel for the first respondent KSRTC supported the Award. 4. The nature of the injuries have been considered by the tribunal. The final diagnosis noted in Ext.A5(a) is that post- traumatic knee stiffness (rt) knee, ORIF done for comminuted supracondylar fracture femur and interlocking nailing done for fracture both bones (rt.) leg. The appellant had to undergo lot of treatment. He was in hospital for 73 days in all. Ext.A14 is the Disability Certificate issued by a three Member Board of the District Hospital, Kannur. It is certified that the appellant sustained fracture lower end of femur right, fracture patella right, fracture tibial plateau and fibular head on right side. There is shortening of 10 cms. of the right lower limb, wasting of thigh muscles, right knee movements flexion 180 to 70. But, the tribunal noted that when PW2, one of the Members of the Board MACA.2189/06 B 3 was examined in cross examination, he stated that the length of right and left lower limbs are not mentioned in Ext.A14 and so, he does not know the length of lower limbs. He also was not able to speak about any medicine being administered for wasting of thigh muscles. On both these grounds, it was found that the per centage of disability should be reduced and 15 per cent was taken for the whole body. 5. We are not in a position to appreciate the reasoning about reduction of the disability on the ground of ignorance of the witness about the length of the lower limbs. But, there is some merit in the reasoning based on ignorance about medicine not being administered for wasting of thigh muscles. Therefore, we feel that we can fix the per centage at 18 instead of 15. On the said basis, the appellant would be entitled to Rs.55,080/= in place of Rs.45,900/=. Thus, the appellant would be entitled to Rs.9,180/= more. We are, further, of the view that in the nature of the injuries and the effect, the appellant should be awarded Rs.5,000/= more towards disfigurement. Appellant is also MACA.2189/06 B 4 entitled to interest at 7.5 per cent instead of 6 per cent from the date of the petition till the date of payment. 6. The further question which remains is regarding the claim for future treatment. Appellant has produced certain documents in this Appeal to substantiate his case that he requires future treatment. in the context of the injuries suffered, learned counsel for the appellant would submit that given an opportunity, the appellant can produce evidence and substantiate his case for grant of compensation for future medical treatment. We would think that the question as to whether the appellant is entitled to future medical treatment and what is to be the quantum for future medical treatment and what is the compensation to be granted for the same, should be decided with opportunity of adducing evidence to the parties. In such circumstances, the Appeal is partly allowed and the appellant is allowed to realise a sum of Rs.14,000/=, rounded off from Rs.14,180/= with 7.5 per cent interest from the date of the petition till the date of realisation from the respondents. The MACA.2189/06 B 5 appellant is also allowed to realise interest at 7.5 per cent from the date of the petition till the date of realisation on the amount already awarded by the tribunal. We, further, remand back the matter to the tribunal for deciding the question as to whether the appellant is entitled to realise any amount towards future medical treatment and if so, what is the quantum. The parties will appear before the tribunal on 14.9.2009. The documents produced by the appellant will be returned to the appellant. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge