IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 10TH JUNE 2008 / 20TH JYAISHTA 1930 MFA.No. 148 of 2003() ------------------------------- OP(MV.306/1997 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,THODUPUZHA .................... APPELLANT /PETITIONER: ------------------------------------- SEBASTIAN, S/O. MATHEW, VAZHACKAPARAYIL HOUSE, PACHILABHAGAM, VANNAPPURAM KARA, THODUPUZHA TALUK. BY ADV. SRI.VIJU ABRAHAM SRI.JOY C. PAUL RESPONDENTS/ RESPONDENTS: ---------------------------------------------- 1. SHAJIMON, S/O. KRISHNANKUTTY, VATTAPPARAYIL HOUSE, VANNAPPURAM VILLAGE, THODUPUZHA TALUK. 2. REJI, S/O. KUTTY, VENGAMATTATHIL HOUSE, KODIKULAM P.O., THODUPUZHA TALUK. 3. THE BRANCH MANAGER, NATIONAL INSURANCE COMPANLY LTD., THODUPUZHA. BY ADV. SRI.P.JAYASANKAR - R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- M.F.A.No.148 OF 2003 ------------------------------------- Dated 10th June, 2008 JUDGMENT Koshy,J . Appellant/claimant at the age of 45 was knocked down by an autorickshaw while he was walking along the side of the road. He claimed a compensation of Rs.1,25,000/- for the injuries sustained in the accident. Tribunal calculated a compensation of Rs.36,541/= including medical expenses and finding 25% contributory negligence on his part total compensation awarded was only Rs.27,425/= with 9% interest. Only quantum of compensation is disputed in this appeal. With regard to the contributory negligence, Tribunal found from the scene mahazar that accident happened on the tarred portion of the road. The northern road margin had a width of 1.75 metres and the place of incident is 73 cms. south of the northern end of the tarred portion. Therefore, Tribunal found that the accident happened while the claimant was crossing the road and 25% contributory negligence was fixed. We are of the opinion that no interference is required in the same. With regard to the injuries, the Tribual found that there was fracture of left radius with dislocation of the inferior radio-ulnar joint. Open reduction and internal fixation of the fracture of the left radius were done on 21.5.1996. POP MFA.148/2003 2 slab was removed on 25.6.1996. On 11.8.1999 implant was removed. Doctor certified that there is 10% disability. But, according to the Tribunal, it may be with regard to that limb and there is only 1% disability. Ext.A8 certificate shows that there is 10% disability which is the whole body disability. According to the claimant, he was earning Rs.250/= per day. He was running a hotel. Tribunal fixed Rs.1,500/= as his monthly income. Even if he was drawing only Rs.100/= per day and there was work for 25 days, he would have got minimum Rs.2,500/= per month Normally, it will take three months to unite the fracture. Therefore, he is entitled to Rs.7,500/= for loss of actual earnings. Tribunal has granted only Rs.2,000/= under that head. So, we award Rs.5,500/= more for loss of actual earnings. According to the Tribunal, even if there is 10% disability, the disability would not have been affected his earning capacity. But, he has to continue his life with the disability. We are of the opinion that Rs.10,000/= ought to have been awarded for permanent disability, loss of amenities, loss of earning power and consequential effects. Tribunal awarded only Rs.2,500/=. So, additional amount payable will be Rs.7,500/=. Therefore, total additional compensation payable will be Rs.13,000/= out of which 25% has to be deducted. Thus, compensation payable will be Rs.9,750/=. The above amount should be deposited by the third respondent insurance company with 7.5% MFA.148/2003 3 interest from the date of application till its deposit. On deposit of the amount, appellant is allowed to withdraw the same. The appeal is partly allowed. J.B.KOSHY JUDGE P.N.RAVINDRAN JUDGE tks