IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 22ND MAY 2008 / 1ST JYAISHTA 1930 MACA.No. 575 of 2004() ---------------------- OPMV.1436/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/PETITIONER: -------------------------------- SHIJU P.V., S/O. VARGHESE, PUDUKKATTUKARAN HOUSE, ELINJIPRA P.O., MUKUNDAPURAM TALUK, THIRSSUR DISTRICT. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENTS: RESPONDENTS: ------------------------ 1. PAUL N.X., NADUVILAVEETTIL HOUSE, PALARIVATTOM P.O., COCHIN. 2. JOY K.M., KARIPPAI HOUSE, PARIYARAM P.O. 3. MANAGER, ORIENTAL INSURANCE CO.LTD., CHALAKUDY. FOR R3 BY ADV. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & P.N.Ravindran, JJ. ===================== M.A.C.A.No.575 of 2004 ===================== Dated this the 22nd day of May, 2008. JUDGMENT Koshy,J. The appellant-claimant met with an accident on 19.11.1998 due to rash and negligent driving of the driver of the vehicle insured by the third respondent - Insurance Company. The Tribunal awarded Rs.1,35,000/- against a claim of Rs.3 lakhs. Out of the above amount, Rs.52,000/- was awarded for actual medical expenses incurred and proved by Ext.A17 series of medical bills. At the time of accident, he was a Goldsmith by profession. Ext.A16 is the certificate issued by his employer. He was getting Rs.6,000/- per month and after the accident, he could not report for work. PW3 - employer gave evidence that Rs.200/- was paid to the employee daily in the shop by name Devadas Dye and Jewellery Works owned by him. Even though he was a Goldsmith, the Tribunal fixed Rs.1,500/- as monthly income. Since he was a Goldsmith, we are of the view that at MACA 575/04 -: 2 :- least Rs.2,500/- ought to have been fixed as monthly income. With regard to the injuries suffered, Ext.A12 wound certificate shows the following injuries: "1. Deep penetrating wound 2x1x1 cm right upper arm. 2. Deep penetrating wound 1.5x0.5 cm mid 3rd of right leg. 3. Multiple abrasions over left knee and left foot. 4. Tenderness and deformity of right lower limb right upper arm, and left clavicle. 5. Fracture clavicle. 6. Fracture to both bone right leg. 7. Fracture right ulnar styloid." 2. He was an inpatient till 26.2.1999 for 99 days. The fracture to both bones of right leg was a type 11 open communited fracture. He was again admitted in the hospital on 8.3.1999 and was discharged on 14.4.1999. Again he was hospitalised. He was in the hospital for a period of 200 days. PW5 Doctor issued a certificate assessing 32% disability. Evidence in this regard was summarised by the Tribunal as follows: MACA 575/04 -: 3 :- "PW5 the doctor who issued Ext.A14 stated in evidence that, the disability was assessed after clinical and radiological examination. It is also stated that the patient has no difficulty to do work sitting on a chair. The fracture of both bones right leg was mal united with postero medial bowing of right tibia, with discharging sinus and signs of cronic osteo mylitis. Right lower limb has shortening. Sensation loss, was there on the medial side of right foot. The clavicle fracture has mal united. The 4th toe was amputed." But the Tribunal without any reason, awarded a compensation of only at 15% loss of earning capacity. According to the appellant, he was unable to do any work. Even according to the Tribunal, every week he had to go to the hospital for follow up. He was subjected to series of surgeries. For 1 1/2 years he was bed ridden. At present, he cannot squat, climbing up and down are difficult. He cannot bend the knees. Shoulder movements are painful. According to the claimant, there is 100% disability. 3. Therefore, we have referred the matter to the Medical Board. The Medical Board issued a certificate assessing 29% disability. The medical certificate issued by the Medical Board reads as follows: MACA 575/04 -: 4 :- "He had sustained the following injuries: 1. Type 111 Compound fracture both bones (Rt) leg (comminuted) 2. Fracture Clavicle (Lt) 3. Crush injury of the 4th toe (Rt) and vascular injury. 4. Fracture (Rt) ulnar styloid. He was treated by sound debridement, external fixation (Rt) leg and K.Wire fixation (Rt) foot. He underwent amputation of 4th toe at MTP level. 5. He developed Osteomyelitis (R) Tibia and had undergone IIIizarov fixation followed by Sequestrectomy. On Examination the following findings are noted: 1. His (Lt) fracture clavicle was malunited 200 angulation and torsion. 2. He has stiffness of (Lt) shoulder with abduction only upto 1300. 3. Last 200 rotation of (Rt) shoulder are limited. 4. He has stiffness of (Rt) wrist Doris flexion 400 and pal mar flexion 450. 5. Limitation of last 300 pronation Supination (Rt) wrist. 6. His (Rt) Tibia fracture has malunited with 200 MACA 575/04 -: 5 :- posterior and medial angulation. 7. He has multiple discharging sinus with Chronic Osteomyelitis (Rt) tibia. 8. He has large adherent scar over the antero medial aspect of (Rt) leg. 9. He has stiffness of (Rt) knee with flexion from 1800 to 900. Further flexion is absent. 10. He has 1.5 cm shortening (R) leg. 11. He has partial ankylosis (Rt) ankle with dorsiflexion up only 200 and plantar flexion from 900 to 1050 12. He has loss of sensation over the medial aspect of (Rt) foot and sole of (Rt) foot. 13. He has wasting calf muscles of 2 cm with loss of 1 grade power. 14. He has difficulty in squatting and climbing up and down stairs. 15. He has traumatic amputation of (Rt) 4th toe. He is assessed to have a permanent whole body disability of 29% (twenty nine percent) as per MC Bride scale." The split up of the disability and various difficulties including shortening of the leg are mentioned in the medical certificate. The Tribunal has fixed 16 as the multiplier. We see no ground to MACA 575/04 -: 6 :- change the same. After considering the age of the claimant at the time of the accident the 2nd Schedule was taken for guidance to fix the multiplier. If that be so, the compensation for permanent disability and loss of earning capacity will be 2500x12x20/100x16 = Rs.1,39,200/-. We are of the opinion that the Tribunal ought to have awarded Rs.1,39,200/- instead of 43,200/- awarded by the Tribunal on this count. So, he is entitled to an additional amount of Rs.96,000/-. The Tribunal has awarded Rs.9,000/- for loss of actual earnings for six months taking the monthly income of Rs.1500/-. He was in the hospital for 200 days. Since we have increased the monthly income to Rs.2,500/- from Rs.1,500/-, he is entitled to Rs.6,000/- more for loss of actual earning and loss of amenities during that period. It is contended that for pain and suffering only Rs.15,000/- was awarded and compensation awarded under all other heads are inadequate. But considering the total amount, we are not increasing the amount of compensation awarded under other heads. 4. Additional compensation of Rs.1,02,000/- should be deposited by the third respondent - Insurance Company with MACA 575/04 -: 7 :- 7.5% interest from the date of application till the date of deposit over and above the amount decreed by the Tribunal. The accident occurred in 1998. Considering the facts of this case, on deposit of the amount the appellant is allowed to withdraw the amount. The appeal is partly allowed. J.B.Koshy, Judge. P.N.Ravindran, Judge. ess 26/5