IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 22ND JANUARY 2010 / 2ND MAGHA 1931 MACA.No. 929 of 2008() ---------------------- OPMV.75/2001 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/PETITIONER ------------------------ ANTONY, AGED 49 YEARS, S/O.VAKKACHAN, KALIPARAMBIL HOUSE, NEAR GANAPATHI TEMPLE, GANAPATHIKKAD DESOM, CHELLANAM VILLAGE. BY ADV. SRI.P.M.JOSHI SMT.JINU JOHN RESPONDENTS: RESPONDENTS -------------------------------------- 1. MATHEW TONY K.A., KOOTTUNGAL HOUSE, SOUTH TO VADAKKEPPALLY, CHELLANAM, CHELLANAM VILLAGE. 2. K.E.PIOUS, KURISINGAL HOUSE, ARTHUNGAL P.O., CHERTHALA. 3. THE UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, N.S.S.UNION BUILDING, CHERTHALA - 688 524. 4. E.J.MATHEW ROY, S/O.YESHUDAS, H.NO.15/2061, EZHUTHYKKAL HOUSE, NAZRETH, KOCHI-2. 5. THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, SHAAN COMPLEX, 6/990B, BAZZAR ROAD, MATTANCHERRY. ADV. DR.ELIZABETH VARKEY FOR R5 SRI.P.SANKARANKUTTY NAIR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ---------------------------------------------- C.M.Application No.926 of 2008 & M.A.C.A.No.929 OF 2008 ----------------------------------------------------- DATED THIS THE 22nd DAY OF JANUARY, 2010 O R D E R/J U D G M E N T Basant, J. This petition is to condone the delay of 119 days in filing an M.A.C.Appeal. Heard. We take a lenient view. Petition allowed. Delay condoned. M.A.C.A.NO.929/08 2. Injured/claimant is the appellant. He had suffered injuries in a motor accident which took place on 27.9.2000. Upper end of right tibia suffered an injury. It was a displaced fracture. He was a mason by profession. He very reasonably claimed that his monthly income was Rs.1,500/-. He was aged 42 years at the relevant time. He was an inpatient for a period of five days. Plaster of paris long leg cast was applied. It was removed only on 30.11.2000. According to the appellant, there was limitation of flexion of the right knee consequent to the injury. He had to undergo physiotherapy for some period of time, even after active treatment. He claimed a total amount of Rs.1.25 lakhs as compensation. The Tribunal on an anxious consideration of all the M.A.C.A.NO.929/08 -2- relevant inputs proceeded to pass the impugned award directing payment of a total amount of Rs.22,273/- as per the details shown below, which are available in paragraph 9 of the award. Heads Amounts awarded Medical expenses : Rs. 5,273.00 Transportation & damage to clothes : Rs. 500.00 Attendant expenses & extra nourishment : Rs. 1,500.00 Shock, pain & sufferings : Rs. 10,000.00 Loss of earning for two months : Rs. 3,000.00 Loss of amenities & conveniences : Rs. 2,000.00 ----------------------------- Total : Rs. 22,273.00 ============= The compensation amount was directed to be paid along with interest at the rate of 7.5% p.a. 3. We have heard both counsel. The learned counsel for the appellant submits that the appellant is aggrieved by the impugned award. What is the grievance? First of all it is contended that the compensation awarded under the head of pain and suffering is too low and inadequate. Only an amount of Rs.10,000/- has been awarded. Taking into account the period of hospitalisation, the fact that long leg POP cast was applied and was removed only after the elapse of a period exceeding two M.A.C.A.NO.929/08 -3- months from the date of the accident and considering the fact that there was limitation in flexion of the knee and consequent obligation to undergo physiotherapy, reasonable and higher amount must have been awarded as compensation, it is contended. Taking the totality of circumstances into account, we find merit in this contention. 4. The learned counsel then contends that the appellant was a mason. The accident had taken place on 27.9.2000. The long POP cast was removed only on 30.11.2000. But the Tribunal had reckoned loss of earnings only for a period of two months. The nature of employment of the appellant – as a mason obliging him to physically exert himself standing, was not taken into reckoning by the Tribunal at all. The Tribunal was unrealistic in assuming that involuntary unemployment could have been only for a period of two months. We are persuaded to agree in the facts and circumstances of this case, considering the nature of the injury and treatment as also the nature of employment of the appellant, that there must have been involuntary unemployment for a period of four months. 5. The learned counsel for the appellant finally contends that during the period of treatment until the physiotherapy was M.A.C.A.NO.929/08 -4- over, the appellant had been put to inconveniences and loss of amenities. Quality of life which he was able to enjoy was impaired considerably even after completion of the immediate period of treatment. For this, only an amount of Rs.2,000/-has been awarded. Further amounts are liable to be awarded under this head, even assuming that the appellant has not succeeded in proving permanent disability as a result of the accident and injury, it is contended. The learned counsel points out that the Doctor had certified that limitation in flexion of the knee had resulted and had advised to undergo physiotherapy. We find force in this contention. We are satisfied that a higher amount must have been awarded under the head of loss of amenities. 6. On the basis of the above discussions, we come to the conclusion that the appellant is entitled to the following further amounts in addition to the amount awarded by the Tribunal. 1. Shock, pain and suffering - Rs.12,500/- minus Rs.10,000/- = Rs.2,500/- 2. Loss of earnings Rs.1,500x4 =Rs.6,000/- minus Rs.3,000/- = Rs.3,000/- 3. Loss of amenities and conveniences Rs.5,000/- minus RS.2,000/- = Rs.3,000/- ------------------- Total = Rs.8,500/- ======= M.A.C.A.NO.929/08 -5- 7. In the result: (a) this appeal is allowed in part. (b) The appellant is found entitled to a further amount of Rs.8,500/- (Rupees Eight Thousand and Five Hundred only) in addition to the amount already awarded by the Tribunal. (c) Needless to say the entire amount of compensation shall bear interest from the date of the petition to the date of payment at the rate of 7.5% p.a. as directed by the Tribunal. (d) All other directions of the Tribunal are upheld. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn