IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 12TH MARCH 2008 / 22ND PHALGUNA 1929 MFA.No. 731 of 2002() --------------------- OPMV.618/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER: --------------------- V.P.SURESH, S/O.PARAMESWARAN, VADAKKEPUTHENPURAYIL HOUSE, VAYANASALAPADY, KUTHUKUZHI P.O., KOTHAMANGALAM. BY ADV. SRI.S.GOPAKUMARAN NAIR SRI.SOORAJ T. ELANJICKAL RESPONDENTS/RESPONDENTS: ------------- 1. K.K.SKARIA S/O.KORA, ANJILIKUDY HOUSE, PUTHUPPADY.P.O., KOTHAMANGALAM. 2. P.P.UTHUPPAN, PARACKAL HOUSE, KARUKADOM P.O., KOTHAMANGALM 3. THE ORIENTAL INSURANCE CO.LTD., ELENGICAL PLAZA, KOTHAMANGALAM. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.F.A.NO.731 OF 2002 (E) ----------------------------------- Dated this the 12th day of March, 2008 J U D G M E N T KOSHY,J. Appellant claimant at the age of 25 sustained serious injuries in an accident. He claimed compensation of Rs.6 lakhs contending that accident occurred due to the negligence of the driver of the vehicle insured by the 3rd respondent Insurance company. Tribunal found that accident occurred as alleged and there was valid insurance coverage for the offending vehicle by the 3rd respondent Insurance company. However, only an amount of Rs.1,33,090/- with interest was awarded as compensation. Only quantum of compensation is disputed in this appeal. 2. Appellant was 25 years old. Tribunal has taken 18 as the multiplier. We see no ground to interfere in the same even though it is argued that considering the present life expectation MFA.731/02 2 and decrease in interest rate, higher multiplier ought to have taken. He was a gold smith by profession. According to him, he was getting more than Rs.10,000/- per month. He produced Exts.A12 to A16 income tax returns to show that he was getting more than the amount by gold smith work. For calculating the loss of actual earning, tribunal has taken Rs.4,000/- as the monthly income and granted Rs.12,000/- for three months treatment. But for the calculation of permanent disability and loss of earnings, tribunal has taken only Rs.2,000/- as the monthly income. Compensation for loss of earnings is awarded only depending upon the loss of earning capacity and disability in proportion to the monthly wages fixed. We are of the opinion that for calculation of loss of earning power and disability, actual monthly earning at the time of accident should be taken into account, and compensation has been arrived at taking the relevant multiplier and percentage of disability/loss of earning capacity. Counsel for the claimants even though contended that tribunal ought have taken at least Rs.10,000/- as the monthly income, we are of the opinion that Rs.4,000/- alone need be taken as the monthly income. MFA.731/02 3 3. With regard to the question of disability, tribunal has detailed the injuries in paragraph 9 of the judgment which is as follows: “Ext.A6 is the wound cum discharge certificate issued from Specialist's Hospital, Ernakulam, from which it is clear that he was admitted in the hospital on 8.12.1997 following RTA and he sustained : Aulsion injury right foot on the dorsum extending from medial bolder to level of 3rd toe, amputation right big toe crushed with avulsed tendon fracture, 2nd toe in complete amputation. Ext.A7 is the copy of medical reference certificate issued from M.B.M.M.Hospital, Kothamangalam showing that he was first brought to the casuality department of the hospital on 8.12.1997. Ext.A8 is the treatment certificate issued from Specialist's Hospital, Ernakulam showing that he sustained injuries which resulted in amputation great toe with loss of skin over the dorsum of foot (R) amputation second toe with loss of proximal phalanx (R) fracture 1st, 2nd and 3rd metatarsal with loss of head of 1st and 2nd metarsal (R) fracture right distal radius communated intrarticular and fracture tibia right leg lower on third. On 8.2.1997, he was given treatment under G.A. wound debridement, external fixator application for the fracture tibia and distal radius and k-wiring for the 2nd toe done. On 19.12.1997, fillet flap from the 2nd toe used to cover the raw area on the dorsum of foot and he was discharged on 26.12.1997. He was again admitted on 29.1.1998 and on 30.1.1998 MFA.731/02 4 external fixator removal of both distal radius and tibia done. PTB cast was applied to the right leg and discharged on 31.1.1998 and he was removed periodically till 1.5.1998. Ext.A9 series are the medical bills marked subject to its admissibility, for proving his treatment expenses. Ext.A10 is the disability certificate issued from Specialist's Hospital as per which the amputation of the I and II toes with loss of skin over the dorsum of foot with fracture of I, II and III metatarsal with loss of head of I and II metatarsal are noted. Fracture distal radius and fracture tibia lower one 3rd. In view of the above findings, the doctor fixed his disability as 20% permanent in nature. Ext.A11 is the disability certificate proved through PW1. As per that certificate, the doctor fixed his disability as 16%. By Exts.A6 to A8 and A9 series, A10 and A11 the petitioner has proved the injuries, treatment and consequential loss sustained by him.” Therefore, it can be seen that originally doctor certified 20% permanent disability, but PW1 doctor certified only 16% disability and he was examined to prove the same. There was amputation of right big toe crushed with avulsed tendon fracture as well as amputation of second toe. Apart from that, there were severe fractures in the tibia as well as in the foot. Under Schedule I Part II Item 39 of the Workmen's Compensation Act, for loss of great toe through metatarso- phalangeal joint, 14% loss of earning capacity is fixed and for MFA.731/02 5 any other toe through metatarso-phalangeal joint, 3% is the loss of earning capacity. If so, without looking into the fracture etc. even under the Workmen's Compensation Act, he will be entitled to compensation for 17% loss of earning capacity. Disability certificate issued by PW1 shows that there is 16% disability. Tribunal ought have awarded compensation for 16% loss of earning capacity. Petitioner has got contention that in view of the loss of great toe and second toe, he was unable to go and canvas ornaments and we are of the opinion that compensation for 16% disability can be granted. If that be so, compensation payable for loss of earning capacity, amenities and disability will be Rs.4,000 x 16/100 x 12 x 18 = Rs.1,38,240/-. Tribunal has awarded only Rs.34,560/- towards disability taking Rs.2,000/- as the monthly income. Therefore, additional compensation payable will be Rs.1,03,680/-. It is argued that compensation granted for medical expenses, pain and sufferings etc. are inadequate. But considering the total amount granted, we are not enhancing the same. The additional amount of Rs.1,03,680/- should be deposited by the 3rd respondent Insurance company with 7.5% interest from the MFA.731/02 6 date of application till its deposit over and above the decreed amount by the tribunal. On deposit of the above amount, appellant is allowed to withdraw the same. Appeal is partly allowed. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NO.731 OF 2002 (E) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 12th March, 2008