IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 MACA.No. 945 of 2007() ---------------------- OPMV.1747/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/PETITIONER: -------------------------------------- K.C.THANKAPPAN, AGED 56 YEARS, S/O. CHETHAN, KEERAMPILLY HOUSE, KONGORPPILLY P.O., VIA KOONAMMAVU, ALANGAD VILLAGE, NORTH PARAVUR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENTS/RESPONDENTS: ------------------------- 1. K.A.SURENDRAN, S/O. ANDAVAN, KARAKKOOTTAL HOUSE, PARAYAKKAD P.O., NORTH PARAVUR. 2. V.R.SREEKUMAR, S/O. RAMAN KARTHA, VAYALATHUPADATH VEETTIL, KIZHAKKEPRAM KARA, KOTTUVALLY, NORTH PARAVUR. 3. UNITED INDIA INSURANCE CO. LTD., BY ITS MANAGER, M.T.P.C. OFFICE, VETTUKATTIL BUILDING, M.G.ROAD, COCHIN-16. BY ADV. SRI.S.MAMMU FOR R3 SRI.CIBI THOMAS FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. ------------------------------- M.A.C.A.NO.945 OF 2007 (A) ----------------------------------- Dated this the 27th day of August, 2008 J U D G M E N T KOSHY,J. Appellant/Claimant sustained serious injuries in a motor accident on 26.11.1997. He claimed a compensation of Rs.10,00,000/-. Tribunal awarded only Rs.4,00,000/- as the compensation but found that there was contributory negligence of 25% on the part of the claimant. Therefore, Rs.3,00,000/- was awarded with interest. The findings of negligence as well as the quantum of compensation are disputed in this appeal. 2. It was found that the 2nd respondent, driver was charge sheeted under Sections 279 and 338 of the India Penal Code. From the charge sheet, it is evident that the accident occurred on a road having 5.40 metres width. The accident happened about 2.95 metres north of the southern tar end. MACA.945/07 2 Appellant was riding from west to east and the offending vehicle was coming from the opposite side. If that be so, accident occurred on the northern side of the road and not on the wrong side of the claimant. The only witness examined in this case was the claimant himself. He deposed that the accident occurred due to the negligence of the 2nd respondent, driver of the bus. There is no contrary evidence. Respondents also did not adduce any evidence regarding the contributory negligence on the part of the claimant. Ext.A1 is the FIR and Ext.A2 is the charge sheet. After preliminary investigation, the 2nd respondent driver alone was charge sheeted under Sections 279 and 338 of the IPC. Contributory negligence cannot be presumed to the driver and therefore, we vacate the finding regarding contributory negligence. 3. It is contended that the appellant had sustained very serious injuries. Ext.A3 wound certificate shows the following injuries: 1. Lacerated wound on the upper lip involving the whole thickness. 2. Lacerated wound on the supra labial MACA.945/07 3 region below the nose. 3. Contused abrasion on the right cheek. 4. Clinical fracture of right arm. 5. Contused abrasion on the right elbow and forearm. 6. Fracture of right forearm. 7. Fracture of right femur. 8. Abrasions left knee, left upper leg and left hand. Petitioner was admitted to the Department of Orthopaedic under G.A.right tibial plateau fixed with screws, right upper tibia fixed with 3 cortical screws right femur was fixed with screws and plate, right humerus was fixed with plates and screws. Arthroscopy was done for the fracture of (L) knee. 1. X-ray (R ) femur - Comminuted supra condylar fracture with inter condylar extensor. 2. X-ray (R ) let with knee - Bicondylar fracture of tibia with large subcondylar extension. 3. X-ray (R ) humerus - Fracture of shaft of right humerus with butterfly MACA.945/07 4 fragment. 4. X-ray (L) hand - Fracture of shaft of 3rd, 4th and 5th metacarpals. 5. X-ray (R ) wrist - Comminuted intra articular colles fracture. 6. X-ray (L) knee - Fracture of medial tibial condyle. He was under inpatient treatment for 180 days. The treatment expenses itself amounts to Rs.2,47,500/-. That was according to the bills. Only a meager amount was awarded for other expenses. The Doctor certified that there is 32% disability. He had suffered six fractures. The right supra condylar fracture of femur was managed by dynamic compression screw fixation and insertion of plate and cancellous screws. Implant was fixed for the right tibial plateau fracture. He was under implant fixation of the right femoral fracture. Fracture of right and left wrist was managed by application of plaster of paris. Open reduction and K-wire fixation was done for metacarpal fracture. MACA.945/07 5 Arthroscopy of left knee was also done. Taking all these aspects, 32% disability was certified by the Doctor. But the Tribunal did not award compensation on a multiplier method merely because there was no loss of earning power. He was employed in the Hindustan Insecticides Limited, he was not discharged from service and he continued in service. After his re-joining duty, he got promotion also. We agree with that and in such cases, compensation need not be awarded on a multiplier method. Tribunal has awarded only Rs.30,000/- for permanent disability and no amount was granted for loss of earning power. According to the appellant, after retirement the possibility of taking up another job is reduced. He was on leave for eight months with pay and for 12 months, he was on leave without pay. Tribunal has awarded only 12 months' wages for actual loss of earnings at the rate of Rs.3,000/- per month, that is, Rs.36,000/-. But the Tribunal has accepted the fact that before the accident he was getting a monthly salary of more than Rs.6,000/- as can be seen from Ext.A14 salary certificate. Ext.A7 is the leave certificate. If that be so, compensation ought to have to been granted atleast taking Rs.6,000/- as the monthly income. MACA.945/07 6 Therefore, for actual loss of earnings for 12 months while he was under the period of loss of pay leave, he will get Rs.36,000/- more than that is awarded by the Tribunal. Even though it is vehemently argued that for permanent disability Rs.30,000/- awarded is very low, considering the total amount awarded, we are not enhancing the same. Therefore, the additional amount payable will be Rs.36,000/- and the total compensation payable is Rs.4,36,000/- as we have already held that there is no reason to reduce the compensation for contributory negligence. The above amount should be deposited by the 3rd respondent Insurance company with 7.5% interest as awarded by the Tribunal from the date of application till its deposit after deducting the compensation amount, if any, already deposited. On deposit of the amount, appellant is allowed to withdraw the same. Appeal is accordingly partly allowed. J.B.KOSHY, JUDGE THOMAS P. JOSEPH, JUDGE prp J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 4th August, 2008