IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 25TH JANUARY 2008 / 5TH MAGHA 1929 MFA.No. 1187 of 2002() ---------------------- MVOP.98/1998 of MACT ALAPPUZHA .................... APPELLANT: PETITIOENR --------------------- MOLY VARGHESE W/O. K.C.VARGHESE, VARISSERIL VEEDU, POOMTHOPPU WARD, ALAPPUZHA. BY ADV. SRI.ROY CHACKO RESPONDENTS: RESPONDENTS ------------------------ 1. K.J.JOSEPH ANTHRAPER, S/O.JOSEPH ANTHRAPER, AJAI MANDIR, ARATTUVAZHI WARD, ALAPPUZHA. 2. THE BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LTD., ERNAKULAM. 3. M.J.JAMES, S/O. M.C.JOSEPH, VARISSERIL VEEDU, POOMTHOPPU WARD, ALAPPUZHA. 4. THE BRANCH MANAGER, ORIENTAL INSURANCE COMPANY LTD., ALAPPUZHA. BY ADV. SRI.SIBI THOMAS JACOB FOR R1 SRI.KKM.SHERIF FOR R2 SRI.A.A.ZIYAD RAHMAN SRI.P.V.JYOTHI PRASAD FOR R4 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & K. HEMA, JJ. ------------------------------------------------ M.F.A. No.1187 2002 ------------------------------------------------ Dated this the 25th day of January, 2008 JUDGMENT Koshy, J: Appellant-claimant suffered serious injuries in a motor accident that occurred on 16.10.1997 and he claimed compensation of Rs.3,22,000/-. The Tribunal awarded only Rs.46,740/- with interest and cost. The only dispute is regarding the quantum of compensation. 2. The Tribunal found that the accident occurred due negligence of the first respondent driver of the vehicle insured by the 2nd respondent Insurance company . Those findings became final. 3. With regard to injuries suffered, she suffered fracture of both legs. The wound certificate is marked as Ext.A5. Ext.A7 is the discharge order issued from T.D.M.C. Hospital, Alappuzha. PW2 proved the above certificate. PW2 is the Associate Professor of Orthopedics, Medical College Hospital, Alappuzha. He issued the above certificate. He assessed disability of the claimant as 16%. It was stated by him that she has malunion of right tibia with 10% [MFA.1187/02] 2 lateral angulation, shortening right leg by 2 cm., post traumatic stiffness of the right know with limitation of terminal degrees of flexion, left tibia was united. There was malunion and post traumatic stiffness left ankle join movements, difficulty in squatting and sitting cross legged, wasting of calf muscles on either side. Percentage of disability was estimated at 16%. The Tribunal has accepted 13% disability. But, we are of the view that there is no reason to disagree with the doctor who certified disability at 16% and claimant should be awarded compensation on that basis. With regard to salary, she stated that she was employed as a tailor in a ready-made garments. As a result of the accident, she left the job. Ext.A8 is the certificate issued by the proprietor of the ready-made garments which would show that she was getting Rs.3500/- per month. PW3, the proprietor of the read-made garment unit was also examined. But the Tribunal did not accept the same. She was 51 years old. In Latha Wadhwa v. State of Bihar and Others (2001 (8) SCC 197) the Supreme Court held that even for a house wife Rs.3000/- can be fixed as as monthly income as the services of a house wife in the family cannot be underestimated. Considering the facts of this case, we fix Rs.2500/- as the monthly income. The tribunal has taken 11 as the multiplier taking guidance from 2nd schedule. We see no ground to change the [MFA.1187/02] 3 same. Therefore, compensation awarded for loss of earning capacity and disability is Rs.52800/-(Rs.2500x12x16/100x11). The Tribunal has awarded Rs.25740/- under that head. So, the additional amount payable for disability and loss of earing power is Rs.27060/-. Tribunal has awarded Rs.6000/- for loss of actual earning treating that she was under treatment for 4 months. Since, we have assessed the monthly income at Rs.2500/-, she is entitled to Rs.4000/- more on this head. Even though it was submitted that she changed the employment and was put to different work, the compensation awarded for treatment is very low. Considering the total amount, we are not granting any enhancement. The additional amount of Rs. 31,060/- should be deposited by the 2nd respondent Insurance company with 7% interest from the date of application till its deposit over and above the amount decreed by the Tribunal. Since the accident occurred 10 year go, on deposit of the amount, appellant is allowed to withdraw the same. Appeal is partly allowed. Sd/- J.B. KOSHY, JUDGE. Sd/- K. HEMA, JUDGE. Krs. [MFA.1187/02] 4 J.B. KOSHY & K. HEMA, JJ. ------------------------------------------------ M.F.A. No.1187 2002 ------------------------------------------------ Dated this the 25th day of January, 2008 JUDGMENT