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 4TH SEPTEMBER 2008 / 13TH BHADRA 1930 MFA.No. 304 of 2002(B) ---------------------- OPMV.2363/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/ PETITIONER : ------------------------- V.J.MATHEW, S/O. JOSE, VADAKKUMCHERY HOUSE, EDANADU, SREEMOOLANAGARAM, ERNAKULAM DISTRICT. BY ADV. SRI.K.SHRIHARI RAO RESPONDENTS/ RESPONDENTS: --------------------------- 1. SARAVANAN, S/O. ARUMUGHAN, KUTTAYAVARAPPANKATT, MUTHUKALI PETTY VILLAGE, RASIPURAM TALUK, SALEM DISTRICT, TAMIL NADU. 2. K.KANDASWAMY, S/O. KALIAPPA, GOUNDER, 28, KATCHERY STREET, RASIPURAM P.O., SALEM DISTRICT, TAMIL NADU. 3. UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, 100 A, ATTUR ROAD, RASIPURAM P.O., SALEM DISTRICT, TAMIL NADU. 4. P.D.MATHEW, S/O. DEVASSY, PULIKKAL HOUSE, PATHUVAPURAM, ANGAMALY, ERNAKULAM DISTRICT. 5. ORIENTAL INSURANCE COMPANY LTD., KALLOOKARAN SHOPPING COMPLEX, ANGAMALY, ERNAKULAM DISTRICT. 6. T.K.MOHAMMED, S/O. KHADEREIILLA, THUPPELIL HOUSE, P.O.MAMBRA, KORATTY, TRICHUR DISTRICT. 7. THE ORIENTAL INSURANCE COMPANY LTD., P.B.NO.48, SOUTH JUNCTION, CHALAKUDY, TRICHUR DISTRICT. ADV. ELIZABETH VARKEY FOR R5 & R7 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & THOMAS P. JOSEPH,JJ. ------------------------------------------- M.F.A.NO.304 OF 2002 ------------------------------------------ Dated this the 4th day of September, 2008. JUDGMENT Koshy, J: The appellant/claimant sustained injuries in a motor accident on 19.4.1995. The Tribunal found that the accident occurred due to the negligence of the first respondent, driver of the vehicle owned by the second respondent which was insured by the third respondent insurance company. Against a claim of Rs. five lakhs, only Rs.2,36,509/= was granted. The only dispute in this appeal is regarding the quantum of compensation. Despite service of notice, there was no appearance for the third respondent in this appeal. The Tribunal found that the offending vehicle was insured by the third respondent insurance company and the third respondent was directed to deposit the award. That finding is not challenged. According to the claimant, he was a brick manufacturer and as a result of the accident he cannot walk without the help of crutches and he lost his entire earning capacity. His monthly income is Rs.7,000/= per month. But apart from the deposition, he did not adduce any evidence to show that he was a brick manufacturer. MFA.No.304/2002 . 2 Income tax certificate, sales tax certificate or any other certificate or document were not produced. In the above circumstances, the Tribunal fixed Rs.1,500/= as the monthly income (Rs.18,000/= per year). He was only 29 years at the time of the accident. We see no ground to enhance the monthly income fixed by the Tribunal. He had very serious injuries to his foot. The Tribunal has considered the injuries and medical certificate in detail. He was admitted in Medical Center, Ernakulam immediately after the accident. The Tribunal discussed the evidence as follows: "He had undergone treatment there as inpatient for 13 days. On 2.8.95 he was discharged from that hospital and on the very same day he was admitted in the Specialist hospital, Ernakulam and undergone treatment there as an inpatient till 25.6.1995. In order to prove the injuries sustained by him in the accident PW1 relies on Exts.A1 to A4. Ext.A1 is the copy of the accident register cum wound certificate which is maintained in the Ernakulam Medical Trust Hospital. It is dated 19.4.1995. It appears that at about 11 a.m of the same day one of the doctors attached to that hospital had examined PW1 and has noted the following injuries: "Crush injury with gross contamination (L) foot with extensive loss of tissue. Medical and intermedial cuneiform lost. 1st to 4th metatarsals exposed fully. Navicular and lateral cuneiform fractured extensor tendons of 1st to 4th lost. Dorsalis pedis vessels lost. Small abrasion on the (R) wrist, (R) thigh and (L) knee MFA.No.304/2002 . 3 dislocation. Ist tarso metatarsal joint (L) fracture 4th metatarsal". The alleged cause of the injury is given as R.T.A near Karukutty at about 10 a.m lorry xtempxmotorcyle, motorcyclist. It is opined by the doctor that the injury could be caused due to the reasons alleged. X-ray investigation (L) foot dislocation of 1st TM Joint/4th metatarsal. Ext.A2 is the discharge summary issued from the Ernakulam Medical Centre. It is seen that PW1 was admitted in that hospital on 19.4.95 and was discharged on 2.5.1995. The following injuries are noted. Crushed contaminated wound dorsum of (L) foot multiple abrasions. There w as extensive loss of tissue from the dorsum of the foot with loss of medial inter medial cuneiform 1st to 4th metatarsal were exposed fully. Extensor of tendons of 1st to 4th toes lost, Dorsalis Pedis vessels lost. The alleged cause of injury is given as R.T.A condition at discharge is shown as referred to Specialist hospital for further management. Ext.A3 is the certificate issued from the Specialist hospital. It is stated therein that PW1 was admitted in the hospital on 2.5.1995 and discharged on 26.6.1995. The history of injury is given as R.T.A two weeks ago treated a t Ernamulam Medical Centre. It is also stated that PW1 was referred there for flap cover. The description of injury is given as follows: Skin and soft issue loss over the entire dorsum of the (L) foot with exposure of bare bone. 1st metatarsal exposed with fracture proximal part. No extensor tendons (complete loss), loss of medial cuneiform bone. Foot is stabilised on external fixator. Ext.A4 is the disability certificate issued by PW2 doctor V.K Krishnankutty, Physiatrist -Civil Surgeon, attached to the General Hospital, Ernakulam. According to PW2 on 2.9.1998 he had examined MFA.No.304/2002 . 4 PW1 and issued Ext.A4 disability certificate. He has noted the following disabilities. "He has post trauma sequelae (L) lower limb with deformity foot, extensive scarring left foot, unhealthy skin and chronic oedenatus hypertrophed dorsum with chronic Osteomyelitic ulcer, impaired sensation and limitation of ankle movements inability to squat, pain on weight bearing on (L) foot contracted proximally, withdrawn big toe and the permanent partial physical disability due to the above is assessed as 40%. It is clear from Exts.A1 to A4 that PW1 had sustained injuries mentioned in Exts.A1 to A3 as a result of the accident. I do not find any reason to disbelieve Exts.A1 to A3. Ext.A12 series are photographs and negatives of the (L) foot of PW1, which gives a clear idea about the nature of the injuries sustained and its aftermath." It shows that he had suffered very serious injuries. The doctor assessed 40% disability and the doctor was examined as PW2. He explained various difficulties and disability occurred to the claimant. But according to the Tribunal as per Schedule 1 Item 22 of the Workmen's Compensation Act amputation of one foot resulting in end bearing only 15%. Considering that, the Tribunal fixed only 20% disability. The Tribunal committed a mistake. Even if reasoning of the Tribunal is accepted, amputation of one foot resulting in end bearing 50% not 15% as per Item 22 of Schedule 1 of Workmen's Compensation Act. We see no ground to disagree MFA.No.304/2002 . 5 with the doctor in assessing the disability. Here permanent disability is 40%. If that be so, compensation payable for disability and loss of earning power will be 1500x12x40/100x18=1,29,600/=. After deducting Rs.64,800/=, the additional compensation payable is Rs.64,800/= more than that is awarded by the Tribunal for disability and loss of earning power. It is contended that he was in the hospital for a very long period. The Tribunal himself granted Rs.1,26,409/= for treatment considering the actual medical bills. The Tribunal has awarded Rs.10,000/= for disability apart from the compensation granted for loss of earning power, that cannot be granted. There will be many expenses not covered by bills. Considering the injuries suffered, he need a bystander. We award Rs.10,000/= for bystander expenses and incidental medical expenses for the long period of treatment. Even though it was argued that the compensation awarded was very low in all other heads, considering the circumstances of the case, we are not enhancing the compensation under other heads. Therefore additional amount of Rs,64,800/= should be deposited by the third respondent insurance company with 7.5% interest from the date of application till its deposit over and above the compensation decreed by the Tribunal. On deposit of the amount, considering the year of MFA.No.304/2002 . 6 accident the appellant is allowed to withdraw the same. J.B. KOSHY, JUDGE. THOMAS P. JOSEPH, JUDGE. cl MFA.No.304/2002 . 7 J.B. KOSHY & THOMAS P. JOSEPH,JJ. M.F.A.NO.304 OF 2002 JUDGMENT 4th September, 2008.