IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 M.A.C.A.No.1201 of 2008 -------------------------------------------- (AGAINST THE AWARD DATED 23.10.2007 IN O.P.(M.V.).NO.260 OF 2002 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA) .................... APPELLANT: RESPONDENT NO.2:- --------------------------------------------------- M/S.UNITED INDIA INSURANCE CO.LTD. S.BATHERY BRANCH, NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, ERNAKULAM , KOCHI-11. BY ADV. SRI.S.MAMMU RESPONDENTS: PETITIONER AND RESPONDENT NO.1:- ----------------------------------------------------------------------------------- 1. M.S.JAMES, S/O. SCARIYA, AGED 43 YEARS, MANTHIYIL HOUSE, CHEERAL P.O., S.BATHERI, WAYANAD DT. 2. M.V. JOSEPH, S/O. VARGHESE, AGED 58 YEARS, MANIYATTUKUDIYIL HOUSE, 3RD MILE, P.O. KUPPADI, S.BATHERI, WAYANAD DT. R1 BY ADV. SRI.P.BENJAMIN PAUL. THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- ORDER ON I.A.NO.1420 OF 2008 IN M.A.C.A.NO.1201 OF 2008 DISMISSED. Sd/- J.B.KOSHY, ACTING CHIEF JUSTICE. 17.12.2008. Sd/- V.K.MOHANAN, JUDGE. - true copy - J.B.Koshy, Ag.C.J. & V.K.Mohanan, J. ---------------------------------------------------- M.A.C.A.No.1201 of 2008-D ---------------------------------------------------- Dated, this the 17th December, 2008 JUDGMENT J.B.Koshy,Ag.C.J. First respondent sustained an injury in a motor accident on 27.1.2002 due to the negligent driving of the vehicle by the second respondent. The vehicle was insured with the appellant-Insurance Company. This appeal is filed questioning the quantum of compensation only. 2. Wayanad District Hospital, Mananthavady assessed 50% temporary disability. The 1st respondent sustained fracture to the ankle of left leg and post traumatic compound fracture of both bones of that leg. Exhibit A8 is the disability certificate. Tribunal assessed compensation for 50% disability, taking the 50% as “permanent disability”. But, a perusal of the certificate would show that the Medical Board assessed only temporary disability. In fact, it is so stated by the Tribunal at paragraph 7 also. Therefore, we have directed the 1st respondent-claimant to be examined by the Medical Board, Government Medical College Hospital, Calicut. The said Board MACA.No.1201 of 2008 - 2 - has assessed 9% permanent disability of the whole body due to the partial ankylosi of (L) ankle joint with limitation of dorsflexin and planterflexin with wasting and scar of (L) leg. Since the permanent disability is only 9%, compensation for 9% permanent disability only can be awarded. 3. The learned counsel for the 1st respondent-claimant submitted that considering the total amount awarded, he did not file an appeal and in case percentage of disability is reduced, other contentions raised by him also should be considered. Only Rs.2,100/- was fixed by the Tribunal as his income, which is very low. He was a registered timber loading worker, aged 43 years and he was maintaining a family. According to the claimant, he was getting a minimum amount of Rs.200/- per day. Therefore, his monthly income is Rs.6,000/-. 4. Exhibits A5 and A6 are Identity Cards, which would show that he was a registered timber loading worker. But, in the absence of any documentary evidence regarding his income, the Tribunal has fixed the monthly income at Rs.2,100/-. The accident occurred in the year 2002. Considering the fact that he was a registered timber loading worker, we are of the opinion that the Tribunal ought to have taken at least Rs.4,000/- as his monthly MACA.No.1201 of 2008 - 3 - income considering the income of a loading worker in Kerala State in the year 2002. Since he was 43 years old, the Tribunal has taken “15” as the multiplier for fixing the compensation, taking guidance from the 2nd schedule. Therefore, the compensation payable to him for disability and loss of earning power would be Rs.4000x12x15x9/100=Rs.64800/-. 5. The Tribunal held that he was an inpatient for three months. For actual loss of earning, Tribunal has granted Rs.8,000/- taking into consideration that he was an inpatient for three months. Since the 1st respondent was a registered timber loading worker and there was compound fracture, both bones of the leg and ankle and since the fracture was on the weight bearing bone, he was not be able to work at all for about four months and therefore, the actual loss of earning should be Rs.16,000/-. 6. For the bystander's expenses, Tribunal has granted only Rs.1,000/-. For four months he was treated as an inpatient. So, we award Rs.4,000/- towards the bystander's expenses. 7. The Tribunal has awarded Rs.600/- for transportation to hospital, Rs.500/- towards extra nourishment and Rs.250/- towards damage to clothing and articles, MACA.No.1201 of 2008 - 4 - Rs.14,500/- towards medical expenses on the basis of the actual bills produced and Rs.10,000/- for pain and suffering, totalling Rs.25,850 and we are not changing the compensation awarded under these heads. 8. Thus, the total compensation payable will be Rs.1,10,650/- instead of Rs.2,23,850/-. The above amount of Rs.1,10,650/- shall be deposited by the appellant with the interest awarded by the Tribunal from the date of application till the date of award of the Tribunal, after deducting the compensation already deposited/paid. On deposit of the above compensation, the 1st respondent-claimant is entitled to withdraw the above amount. The appeal is partly allowed, as above. J.B.Koshy, Ag.Chief Justice V.K.Mohanan Judge vku/-