IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 MACA.No. 488 of 2008() ---------------------- OPMV.891/2003 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL,KOTTAYAM .................... APPELLANT/PETITIONER. --------------------------- SABU, S/O. PAULOSE, PUTHOOR HOUSE, VADAKKEKARAYIL, VADAYAR VILLAGE. BY ADVS. M/S. T.K.KOSHY & T.A. RAJAN. RESPONDENTS: RESPONDENTS 2 & 3. --------------------------------- 1. M.P.UTHUPPAN, S/O. PAULOSE, MULLAMKUZHIYIL HOUSE, KARIPADOM, VELLOOR VILLAGE, KOTTAYAM DISTRICT. 2. THE NATIONAL ASSURANCE CO. LTD., TRIPPUNITHURA. R1 BY ADVS. M/S. P.A.AUGUSTIAN & T.R.JAGADEESH R2 BY ADV. SRI.LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. = = = = = = = = = = = = == == = = = M.A.C.A. NO. 488 OF 2008 = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 10TH DAY OF NOVEMBER, 2009. J U D G M E N T Raman, J. This appeal is filed by the claimant in O.P. (MV) 891/2003 on the file of the Additional Motor Accident Claims Tribunal, Kottayam, who sustained severe injuries in a motor accident. The accident occurred while the petitioner was travelling as a pillion rider in a motor bike through the Kottayam – Vaikom road. A bus bearing Register No. KL 6/4455 driven by the first respondent in the claim petition, came in a rash and negligent manner and hit on the bike and as a result, the petitioner fell on the road and sustained injuries. It is alleged that the accident occurred due to the negligence on the part of the first respondent. At the time of the accident, the first respondent herein was the owner of the bus which was validly insured with the second respondent. Petitioner claimed in all a sum of Rs. 5 lakhs by way of compensation against the respondents jointly and severally. The second respondent herein who is the insurer of the vehicle admitted the policy; but denied the manner in which the accident took place and denied MACA 488/2008 2 negligence on the part of the first respondent in the claim petition. The evidence in the case consists of the oral testimony of PWs 1 and 2 and Exts.A1 to A14 on the side of the petitioner. No evidence was adduced by the respondents. 2. The accident was not disputed. Taking note of Exts.A1 copy of the F.I.R. and Ext.A3 copy of the charge sheet and other attending circumstances and in the absence of any contra evidence, the Tribunal found that the accident happened because of the negligence on the part of the first respondent in the claim petition. To prove the nature of the injury suffered, Ext.A2 wound certificate was produced. The claimant was 32 years of age at the time of the accident. According to him, he was working as a Supervisor in the Hindustan News Print Ltd. under a contractor and was getting a monthly income of Rs. 6,000/-. To prove this, he has produced Ext. A10 salary certificate besides examining PW.2. But the court below did not accept the claim of the petitioner that his salary was Rs. 6,000/- per month. On an appreciation of the evidence, both oral and documentary, the Tribunal fixed the income of the petitioner at Rs. 3,000/- per month. Good reasons have been shown for not accepting Ext.A10 in toto and reducing the income to Rs. 3,000/-. Though it is contended that the income fixed is too low, we, on a re-appreciation of the evidence available MACA 488/2008 3 on record, could only come to the same conclusion and we do not find any grounds for interference with the said finding. 3. The details of the injuries sustained by the petitioner as per the medical records are dealt with by the Tribunal in paragraph 10 of its Award. Further, Ext.A4 discharge summary indicates that the petitioner was admitted in the Matha Hospital on 12.2.2003 with injuries and he was treated by wound debridement, closed IMSC, nailing for comminuted fracture femur shaft, open reduction and internal fixation with 6.5 mm screw fixation for tibial condyle fracture and he was discharged on 20.2.2003 on request. Ext.A5 is a treatment certificate issued by Dr. Rajesh, Consultant Orthopedic Surgeon of Matha Hospital. The petitioner was treated by surgery ( wound debridement interlocking nailing femur, elevation of tibial condyle fracture and screw fixation/EDA) followed by long leg plastering. Ext.A6 is another medical certificate issued by the same Doctor which would show that the petitioner was again treated in the very same hospital on 27.12.2003 for pain right knee due to secondary osteo arthritis right knee and was advised rest for two months from 27.12.2003. 4. Considering the pain and suffering undergone by the petitioner, an amount of Rs. 30,000/- was awarded by way of compensation by the Tribunal under this head, which, on the factual situation, cannot be said to MACA 488/2008 4 be grossly inadequate. Under the head loss of earning, an amount of Rs. 21,000/- is awarded as compensation which is also found to be reasonable. The medical bills as such have been accepted and an amount of Rs. 46,130/- has been awarded. 5. The main contention of the appellant is that the by-stander expense claimed at Rs. 13,500/- , without any adequate reason, has been reduced to Rs. 6,000/-. It is contended that though the petitioner was in hospital only for a few days, he had to take bed rest and with the disability as noticed by various medical records, he could not have attended to his normal work atleast for a period of seven months as reckoned by the Tribunal. Therefore, it is contended that a by-stander was required for the period in question. Considering the totality of the facts and circumstances, we find that Rs. 6,000/- is inadequate under this head and accordingly, we award an amount of Rs.4,000/- more towards by-stander expense. 6. It was then contended that the disability assessed by the doctor was 15% which was reduced to 10%. No acceptable reasons are given by the Tribunal for reduction of the disability percentage. We find from the records that though the doctor was not examined in the case, the medical records would clearly show that the appellant had undergone surgery and several injuries were sustained by him and the treatment record would show MACA 488/2008 5 that the percentage of disability fixed by the Tribunal is on a lower side. Accordingly, we fix the disability at 12% in stead of 10% fixed by the Tribunal. On a re-working of the compensation taking the disability as 12% the petitioner/appellant will be entitled to an additional amount of Rs. 12,240/- under this head. 7. Towards loss of amenities in life, an amount of Rs.25,000/- was awarded by the Tribunal. Considering the age of the appellant and taking into consideration the fact that he was not married at that time, an amount of Rs. 10,000/- more is awarded under this head. Thus, the appellant is entitled to an amount of Rs. 26,240/- (Twenty six thousand two hundred and forty only) towards additional compensation, which will carry interest at the rate of 7% per annum. The Award is modified to this extent. The appeal is allowed partly as above. P.R. RAMAN, (JUDGE) P.R. RAMACHANDRA MENON, (JUDGE) KNC/-