IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 MACA.No. 337 of 2006() --------------------------------- OPMV.420/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT/PETITIONER ------------------------------------ MOIDU, S/O.KAMMU @ BAPPUTTY, AYYAMKULAM HOUSE, THAZHAPARA DESOM, P.O.VETTIKKATTIRI, THRISSUR DISTRICT. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENTS/RESPONDENTS: ---------------------------------------------- 1. M.MADHAVAN, S/O.NARAYANAN NAMBOOTHIRIPAD MANNAZHI MANA, P.O.CHERUTHURUTHY, WADAKKANCHERRY, THRISSUR DISTRICT. 2. JAYADEV, S/O.BRAHADATHAN NAMBOODIRI, MOZHIKUNNATH MANA, P.O.KALLADIPATTAM, PATTAMBI. 3. THE ORIENTAL INSURANCE CO. LTD., PRANAVAM BUILDING, MELE PATAMBI. ADV. SRI.VPK.PANICKER FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ J.B. Koshy & Thomas P.Joseph, JJ. -------------------------------------- M.A.C.A.No. 337 of 2007 --------------------------------------- Dated this the 6th day of November, 2008 Judgment Koshy,J. Appellant/Claimant while riding his motor cycle was hit by a jeep driven by the second respondent in a rash and negligent manner and sustained serious injuries. The above jeep was owned by the first respondent and insured by the third respondent insurance company. He filed an application for compensation claiming an amount of Rs.3,09,500/-. The Tribunal allowed only Rs.1,38,100/- inclusive of expenses reflected by medical bills amounting to Rs.60,200/-. The only dispute is regarding the quantum of compensation. 2. The appellant was aged 37 years at the time of accident. The Tribunal has taken 16 as the multiplier. Considering second schedule as a guideline, we are of the opinion that no enhancement of multiplier is needed. According to the appellant, he sustained 100% loss of earning capacity. The wound certificate shows that he has sustained fracture of humerus right and comminuted fracture of forearm. He was admitted in Sanjeevini M.A.C.A.No. 337/2005 2 Hospital, Shoranur and thereafter he was referred to West Fort Hospital, Thrissur. He was treated there till 30.8.2000. Two surgeries were conducted. Even though he was discharged from the hospital after inpatient treatment for 24 days, he continued his treatment at home and as his injuries were got infected he was again admitted in Jubilee Mission Hospital on 19.12.2002. His wound was reopened and fresh internal fixation was done. He was discharged on 2.1.2003. He continued his treatment. He has produced Ext.A9 disability certificate assessing permanent disability at 20%. Since the doctor who issued the disability certificate was not examined, that certificate was not relied on by the Tribunal, but, the Tribunal found that there is shortening of right palm by 2 c.m. and loss of muscle of that arm. The Tribunal also found that the fracture of right humerus was mal-united and, therefore, there is real disability. The Tribunal also found as follows: "...... It has also come out in evidence that the petitioner has weakness of movement of right hand. He is also unable to climb stairs properly...... " But, only 10% permanent disability was assessed by the Tribunal. It is argued that the Motor Accidents Claims Tribunal has to dispose of the case in a summary manner and unless the medical certificate is M.A.C.A.No. 337/2005 3 obtained fraudulently, it ought to have been accepted. According to the appellant, he was an iron fencing worker. Because of the injuries, he is unable to do that work as his hand is weak. Because of the mal-united fracture he is also unable to walk freely and it is a case of 100% loss of earning capacity. Considering the shortening of hand and mal-united fracture of right humerus and also difficulty in movements, we are of the opinion that compensation ought to have been awarded at least for 15% disability. 3. According to the claimant, his monthly income was Rs.4,500/-. He was an iron fencing worker. He was maintaining a family. It is also submitted that even an unskilled worker in Kerala used to get more than Rs.150/- per day during the year 2000 when the accident occurred. We are of the view that he would have got a minimum of Rs,100/- per day and also 25 days' work in a month. Therefore, at least Rs.2,500/- can be fixed as the monthly income. If that be so, compensation payable for 15% disability will be Rs.2,500 x 12 x 16 x 15 = Rs.72,000/- for disability and loss of earning 100 power. The Tribunal allowed only Rs.38,400/-. Therefore, for disability and loss of earning power, he is entitled to an additional amount of Rs.33,600/-. The Tribunal has found that he was unable M.A.C.A.No. 337/2005 4 to do any work for about five months during the period of treatment and for loss of actual earning, he was awarded Rs.10,000/-. Since we have increased the monthly income, he is entitled to Rs.2,500/- more on that count. For bystander's expenses only Rs.1,500/- was awarded by the Tribunal. He was hospitalised on two occasions for one and a half months and he needed a bystander at least for three months. We are of opinion that another Rs.1,500/- ought to have been awarded for bystander's expenses. It is submitted that no amount was awarded for future medical treatment and compensation allowed under other heads are very meagre. However, considering the total amount awarded, we are not enhancing the compensation under any other heads. Therefore, the additional amount of Rs.37,600/- should be deposited by the third respondent insurance company with 7.5% interest from the date of application till its deposit. On deposit of the amount, appellant is allowed to withdraw the same. J.B.Koshy Judge Thomas P. Joseph Judge vaa M.A.C.A.No. 337/2005 5 J.B. KOSHY AND THOMAS P.JOSEPH,JJ. ------------------------------------- M.A.C.A.No.337/2006 ------------------------------------- Judgment Date:6th November,2008