IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 MFA.No. 384 of 2003() --------------------- OPMV.2661/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT: PETITIONER: ---------------------------------------- USHA VIJAYAN, W/O. VIJAYAN, RESIDING AT PARIYARATH THACHAPPILLY HOUSE, CHEMBUKKAVU, THRISSUR. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SRI.PRINCE.K.ELIAS RESPONDENTS: RESPONDENTS: ------------------------------------------------- 1. T.D.JOSE, RESIDING AT THANIKKAL HOUSE, P.O. ERAVU, THRISSUR. 2. JAYACHANDRAN, S/O. CHENNAN, RESIDING AT KANNARA HOUSE, PULLU, THRISSUR. 3. THE ORIENTAL INSURANCE COMPANY LIMITED, THRISSUR. 4. C.J.SAJU, RESIDING AT CHERPENATH HOUSE, ANNANADU P.O., CHALAKUDY. 5. RAJEEV, S/O. NARAYANAN, RESIDING AT KOCHATH HOUSE, KARAMUKKU, THRISSUR. 6. THE UNITED INDIA INSURANCE COMPANY LTD., BRANCH VETTUKATTIL BUILDING, COCHIN. BY ADV. SRI.T.M.CHANDRAN – R1 SRI.MATHEWS JACOB (SR.) - R3 SRI.K.N.PADMAKUMAR - R4 SRI.P.MURALEEDHARAN - R6 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B. KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- M.F.A.NO.384 OF 2003 (C) --------------------------------------- Dated this the 11th day of June, 2008 J U D G M E N T Koshy,J. Appellant/claimant sustained very serious injuries in an accident on 22.11.1999, which resulted in the amputation of her right leg above knee. Tribunal found that accident occurred due to the negligence of the driver of the vehicle insured by the 3rd respondent Insurance company. Tribunal awarded a compensation of Rs.4,48,900/- against a claim of Rs.15,00,000/- and directed it to be deposited by the 3rd respondent Insurance company with 9% interest. Only quantum of compensation is disputed in this appeal. 2. According to the appellant, her right leg above knee was amputated and there was failure of kidney in addition to crush injury on the left hand. It was also in evidence that she is using MFA.384/03 2 artificial limb and occasionally ulcer develops on the point where leg was amputated and thus she cannot use artificial limb. Then she would go to the hospital and after removing that portion, dressings would be done. As a result of the accident, she had taken half pay leave from 23.11.1999 to 19.1.2000 and leave on loss of pay on medical ground from 20.1.2000 to 30.3.2000. Thus, it can be seen for more than four months she was on leave. Thereafter also for treatment, she has to take leave. Her monthly salary was Rs.15,874/- as revealed form the salary certificate. She was a Senior Scale Lecturer. Tribunal has granted Rs.52,500/- towards loss of pay leave. We see no ground to enhance the same. Hospital bills were reimbursed. For future medical expenses, Rs.10,000/- was awarded. Tribunal found as follows: "It is in the evidence of petitioner that she is using artificial limb and occasionally ulcer would be developed on the pressure point at the area where her leg was amputated. On such occasions, she cannot use the artificial limb and she would go to the hospital and after removing that portion dressings would be done. Considering this fact also, Rs.10,000/- is allowed towards expenses for MFA.384/03 3 future treatment. Considering the injuries, amputation and treatment, Rs.40,000/- is allowed towards compensation for pain and suffering. The following disabilities have been deposed by the petitioner: While she was undergoing treatment at the hospital, catheter was used for removing the urine and hence, occasionally, she has pain while passing urine. She finds it difficult to take classes standing for long as also for doing the activities in the laboratory. She cannot travel like others or engage in the multifarious activities of life like others or attend to her household affairs. She is walking inside her house using crutches. She had to shift her residence, due to her difficulty to travel, from Thrissur to a rented house near her college at Nattika. She is travelling by autorickshaw to and from the college. Ext.A13 is a permanent disability certificate issued by Dr.T.G.Gopinathan, Consultant Orthopaedic Surgeon, Aswini Hospital, Thrissur. It is certified in this document that the petitioner has a permanent disability of 43%. The reasons for the disability are also stated in this document. Considering the amputation (above knee) of the right leg of the petitioner and her deposition, I find no reason to disagree with the disability certified in Ext.A13." Since she has to undergo occasional treatment, change of catheter etc. atleast Rs.20,000/- ought have been awarded by the tribunal instead of Rs.10,000/-. Therefore, additional amount of Rs.10,000/- is granted for future treatment expenses. MFA.384/03 4 Petitioner has 43% disability. She was 41 years old at the time of accident. It is true that if compensation is calculated on a multiplier method, it will be very high amount, that is, Rs.15,000 x 12 x 43/100 x 15 = Rs.11,61,000/-. But petitioner continued her employment. But she has to retire at the age of 55. Her entire life was spoiled. Tribunal himself found that her life has become miserable and she has to take leave occasionally for subsequent treatment and follow up. We are of the opinion that atleast Rs.3,50,000/- ought have been awarded for the permanent disability and loss of earning power instead of Rs.2,00,000/- awarded by the tribunal. Therefore, claimant is entitled to Rs.1,50,000/- for disability, loss of earning power and other consequences of disability. Therefore, claimant is entitled to additional amount of Rs.1,60,000/- over and above the compensation amount awarded by the tribunal. Out of the Rs.1,60,000/-, Rs.1,50,000/- should be deposited by the 3rd respondent Insurance company with 7.5% interest from the date of application till its deposit over and above the decreed amount by the tribunal and Rs.10,000/- should be deposited by MFA.384/03 5 the 3rd respondent Insurance company with 7.5% interest from the date of award till the date of deposit. On deposit of th amount, appellant is allowed to withdraw the same. Appeal is partly allowed. J.B.KOSHY, JUDGE P.N.RAVINDRAN, JUDGE prp MFA.384/03 6 J.B. KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- M.F.A.NO.384 OF 2003 (C) -------------------------------------- J U D G M E N T 11th day of June, 2008