IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 22ND JANUARY 2008 / 2ND MAGHA 1929 MFA.No. 1308 of 2002(B) ----------------------- OPMV.1808/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT: PETITIONER --------------------- 1. JAYAPRAKASH S/O. KRISHNAN, KUNNUMMEL HOUSE, HARI NAGAR, PUNKUNNAM, THRISSUR-2. BY ADV. SRI.DILIP J. AKKARA RESPONDENTS: RESPONDENTS ------------------------ 1. JOSE JON, S/O.C.V.JOHN, CHANDRA NAGAR, PALAKKAD. 2. CHANDRAN. A., S/O. ARU, AKYAR HOUSE, VANDITHAVALAM, CHITTOOR, PALAKKAD. 3. THE NATIONAL INSURANCE CO. LTD., SR.PALAKKAD OFFICE, FOR MAIDAN, PALAKKAD 678 001. BY ADV. SRI.P.JAYASANKAR THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA,JJ. ----------------------------------------- M.F.A.No.1308 of 2002 ----------------------------------------- Dated this the 22nd day of January, 2008 JUDGMENT Koshy, J. Appellant-claimant, at the age of 44, suffered serious injuries in a motor accident on 24.6.1999. He claimed an amount of Rs.3,70,000/-. The Tribunal has awarded only Rs.1,24,500/- with interest. Only the quantum of compensation is disputed in the appeal. Hence, we consider that part only in this appeal. The claimant was an auto rickshaw driver. He was maintaining a family. According to him, he was getting Rs.3,000/- per month. The Tribunal fixed RS.1,500/- as the monthly income. We are of opinion that being an auto rickshaw driver, normally he will get Rs.100/- per day and he will get 25 days work in a month. Therefore, we are of opinion that atleast Rs.2,500/- ought to have been fixed as the monthly income. 2. As far as injuries are concerned, Exhibit A15 is the wound certificate and Exhibit A13 is the discharge card. There was fracture to the femur, lateral tibial condyle etc. Disability certificate shows that he had 35% permanent partial disability. It reads as follows: M.F.A.1329/02 2 “1. Comminuted fracture proximal third of (L) femur. 2. Comminuted ipsilateral supracondylar fracture of (L) femur. 3. Comminuted fracture patella (L). 4. Fracture lateral tibial condyle (L). 5. Isolated fracture (L) Radius--shaft. Initially patient was resucitated by IV fluids, blood tranfusion and other supportive measures. He udnerwent surgical treatment afterwards namely. 1. Interlocking nail fixatin and bone grafting of fracture shaft and superacondylar fracture (L) femur. 2. Patellectomy and extensor apparatus repair (L) knee. 3. Open reduction and screw fixation of tibial condyle fracture. 4. Fixation of fracture radius using dynamic compression plate & Screws. Patient had urinary tract infection in the post operative period treated in consultation with Urologist. I have reviewed him several times afterwards and again today (30.6.2000) and find that he has delayed union of fracture shaft of femur. There is significant stiffness of (L) knee with loss of extensor power. There is shortening of (L) lower limb and patient has pain on weight bearing. Considering these factors, I certify that patient has the following disabilities. 1. Temporary partial disability of eighty percent (80%) for a period of 3 months following the accident. M.F.A.1329/02 3 2. Temporary partial diablity of fifty percent (50%) could for a further period of three months. 3. Permanent disability of thirty five percent (35%) thereafter.” The certificate also further stated that his implants are removed. The petitioner has also produced another medical certificate before this Court to show that because of the breakage of nail, he had undergone another operation. In any event, disability certificate itself shows that he has undergone another operation for removal of nails. Doctor certified 35% disability. The Tribunal, for permanent disability and loss of earning power, awarded only Rs.40,000/-. No calculation was made under multiplier method. He was 44 year old. Therefore, apt multiplier would be 15, taking guidelines on the second respondent. There will be improvement after physiotherapy. We fix 20% as the disability for assessment of compensation for loss of earning power and disability. Therefore, compensation payable will be: 2500 x 12 x 20 x 15 = 90,000. 100 Therefore, he will be entitled to Rs.50,000/- more on that count. The Tribunal himself has stated that even at the time of examination, he was walking with the aid of crutches. There was shortening to his left leg and sole does not touch the floor. The Tribunal awarded Rs.13,500/- for loss of earnings for nine months, taking Rs.1,500/- as M.F.A.1329/02 4 the monthly income. Since we have assessed the monthly income as RS.2,500/-, he is entitled to Rs.9,000/- under that head. For transportation, bystanders expenses and disfigurement, no amount was awarded. He has to undergo long treatment and we award Rs.1,000/-. For transportation expenses, for disfigurement and for bystanders expenses together, we award another Rs.1,000/-. Thus, he is entitled to an additional compensation of Rs.61,000/-. It is contended that the compensation awarded under other heads are very meagre. Considering the total amount and the interest awarded, we are of opinion that no further enhancement of compensation is required. The additional amount of Rs.61,000/- should be deposited by the third respondent Insurance Company with 7.5% interest from the date of application till the date of deposit, over and above the amount decreed by the Tribunal. On deposit of the amount, the appellant is allowed to withdraw the same. The appeal is allowed, partly. J.B.KOSHY, JUDGE K.HEMA, JUDGE vgs. M.F.A.1329/02 5 J.B.KOSHY & K.HEMA, JJ. ------------------------------ M.F.A.No.1329 of 2002 ------------------------------ JUDGMENT .1.2008